MCFADYEN et al v. DUKE UNIVERSITY et al

Filing 299

Consent MOTION for Extension of Time to Extend Discovery Period Solely To Secure An Affidavit From Plaintiff Breck Archer And Obtain Attorney Billing Records For Plaintiffs Ryan Mcfadyen And Breck Archer by DUKE UNIVERSITY. (Attachments: #1 Text of Proposed Order)(FALCONE, JEREMY)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
CIVIL ACTION NUMBER 1:07-CV-00953
RYAN McFADYEN, et al.,
Plaintiffs,
v.
DUKE UNIVERSITY, et al.,
Defendants.

CONSENT MOTION TO
EXTEND DISCOVERY PERIOD
SOLELY TO SECURE AN
AFFIDAVIT FROM PLAINTIFF
BRECK ARCHER AND OBTAIN
ATTORNEY BILLING
RECORDS FOR PLAINTIFFS
RYAN MCFADYEN AND BRECK
ARCHER

Duke University, by and through counsel, pursuant to the Rule 6(b) of the
Federal Rules of Civil Procedure, Local Rule 6.1, and the Initial Pretrial Order
[Dkt. No. 244], respectfully moves for an order enlarging the discovery period
through and including October 2, 2012 solely for the purposes of the production of
Plaintiff Breck Archer’s signed affidavit and the production of attorney billing
records for Plaintiffs Ryan McFadyen and Matthew Wilson. A proposed order
accompanies this Motion.
In support of this Motion, Duke states as follows:
1.

Plaintiff Breck Archer was deposed on April 19, 2012.

2.

During his deposition, a dispute arose between the parties. Through

the meet and confer process, the parties agreed to resolve the dispute by Mr.
Archer providing an affidavit.

3.

On June 11, 2012, the parties agreed on the text of the affidavit.

4.

The parties intended to have the affidavit finalized (and the dispute for

the deposition resolved thereby) prior to the close of discovery on September 21,
2012.
5.

As described in Plaintiffs’ Motion to Extend Time to Respond to

Defendants’ Requests for Admissions [Dkt. No. 295], Mr. Archer is abroad in
Japan in connection with his employment by the United States.
6.

Plaintiffs intended on producing the attorney billing records of

Plaintiffs Ryan McFadyen and Matthew Wilson in response to Duke’s September
2011 document requests. Plaintiffs have indicated that technical issues beyond
Plaintiffs’ control have impacted Plaintiffs’ ability to make that production at the
present time.
7.

On September 21, 2012, the parties jointly moved to extend the

discovery period through and including September 25, 2012, solely for the purpose
of obtaining the affidavit from Breck Archer and the production of the attorney
billing records. [Dkt. No. 296.] On September 24, 2012, this Court granted that
motion. [Dkt. No. 298.]
8.

On September 25, 2012, Plaintiffs indicated to undersigned counsel

that they have been unable to obtain the affidavit or the attorney billing records.
Plaintiffs indicated they should be able to produce the attorney billing records by
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September 26, 2012.
9.

Accordingly, Duke seeks to extend the discovery period through and

including October 2, 2012, solely for the purposes of the production of Plaintiff
Breck Archer’s signed affidavit and the production of attorney billing records for
Plaintiffs Ryan McFadyen and Matthew Wilson.
10.

Plaintiffs’ counsel consented to the relief requested in this Motion.

11.

This Motion is brought in good faith and not for the purposes of delay.

This Motion is made prior to the expiration of the deadline sought to be extended
hereby.
WHEREFORE, Duke respectfully requests that the Court enter an Order
enlarging the discovery period through and including October 2, 2012, solely for
the purposes of the production of Plaintiff Breck Archer’s signed affidavit and the
production of attorney billing records for Plaintiffs Ryan McFadyen and Matthew
Wilson.

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Respectfully submitted, this the 25th day of September 2012.
/s/ Jeremy M. Falcone
Paul K. Sun, Jr.
N.C. State Bar No. 16847
Email: [e-mail]
Thomas H. Segars
N.C. State Bar No. 29433
Email: [e-mail]
Jeremy M. Falcone
N.C. State Bar No. 36182
Email: [e-mail]
Ellis & Winters LLP
1100 Crescent Green, Suite 200
Cary, North Carolina 27518
Telephone: [phone]
Facsimile: [phone]
Dixie T. Wells
N.C. State Bar No. 26816
Email: [e-mail]
Ellis & Winters LLP
333 N. Greene St., Suite 200
Greensboro, NC 27401
Telephone: [phone]
Facsimile: [phone]
Counsel for Duke University

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CERTIFICATE OF SERVICE
I hereby certify that I electronically filed the foregoing with the Clerk of the
Court using the CM/ECF system, which will send notification of such filing to all
counsel of record and to Mr. Linwood Wilson, who is also registered to use the
CM/ECF system.
This 25th day of September, 2012.

/s/ Jeremy M. Falcone
Jeremy M. Falcone
N.C. State Bar No. 36182
Email: [e-mail]
Ellis & Winters LLP
1100 Crescent Green, Suite 200
Cary, North Carolina 27518
Telephone: [phone]
Facsimile: [phone]
Counsel for Duke University