MCFADYEN et al v. DUKE UNIVERSITY et al
Filing
300
RESPONSE in Opposition re #294 MOTION for Protective Order for the Deposition of Plaintiffs' Litigation Counsel filed by ROBERT DEAN, MATTHEW DRUMMOND, DUKE UNIVERSITY, AARON GRAVES, GARY N. SMITH. (Attachments: #1 Exhibit 1 - Flannery Deposition Excerpt, #2 Exhibit 2 - 2007-01-31 Emails between Hendricks & Ekstrand, #3 Exhibit 3 - Tkac Deposition Excerpt, #4 Exhibit 4 - McDevitt Deposition Excerpt, #5 Exhibit 5 - 2012-02-14 Document Subpoena to Bob Ekstrand, #6 Exhibit 6 - 2012-02-14 Document Subpoena to Ekstrand & Ekstrand, #7 Exhibit 7 - 2012-02-14 Testimony Subpoena to Robert Ekstrand, #8 Exhibit 8 - 2012-03-14 Objections to Subpoenas, #9 Exhibit 9 - 2012-03-31 Email from Stefanie Sparks, #10 Exhibit 10 - 2012-08-14 Carrington Plaintiffs' Supplemental Initial Disclosures, #11 Exhibit 11 - 2012-08-17 Testimony Subpoena to Stefanie Sparks Smith, #12 Exhibit 12 - 2012-08-31 Objection to Subpoena, #13 Exhibit 13 - 2011-10-03 Duke's Defendants' Initial Disclosures in Carrington, #14 Exhibit 14 - Dowd Deposition Excerpt, #15 Exhibit 15 - Schoeffel Deposition Excerpt, #16 Exhibit 16 - Koesterer Deposition Excerpt, #17 Exhibit 17 - 2007-02-15 Letter from Cheshire to Coman, #18 Exhibit 18 - Catalino Deposition Excerpt, #19 Exhibit 19 - Clute Deposition Excerpt, #20 Exhibit 20 - Jennison Deposition Excerpt, #21 Exhibit 21 - Archer Deposition Excerpt, #22 Exhibit 22 - Oppedisano Deposition Excerpt, #23 Exhibit 23 - Sherwood Deposition Excerpt, #24 Exhibit 24 - Common Representation Agreement, #25 Exhibit 25 - McFadyen Deposition Excerpt)(FALCONE, JEREMY)
EXHIBIT 12
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
CARRINGTON, ET AL.,
Plaintiffs,
1:08 CV 119
v.
DUKE UNIVERSITY, ET AL.,
Defendants.
STEFANIE A. SMITH’S OBJECTIONS TO DUKE
UNIVERSITY DEFENDANTS’ SUBPOENA FOR
DOCUMENTS AND SUBPOENA FOR DEPOSITION
TESTIMONY
Pursuant to Rule 45, Stefanie A. Smith (“Respondent”) submits the following
objections to the subpoena to produce documents, information, or objects or to
permit inspection of premises in a civil action served on Stefanie A. Smith on August
17, 2012 and the subpoena for deposition testimony of Stefanie A. Smith also served
on August 17, 2012. Respondent explicitly reserves the right to assert further
objections.
GENERAL OBJECTIONS
1.
Respondent objects to each request to the extent that it seeks information that
is protected from disclosure by the attorney-client privilege, the work product
Case 1:08-cv-00119-JAB-JEP Document 258-2 Filed 09/03/12 Page 2 of 18
doctrine, and/or other applicable privileges or protections.
2.
Respondent objects to each request to the extent that it does not state with
reasonable particularity the information requested.
3.
Respondent objects to each request to the extent that it seeks information not
relevant to any claim or defense asserted in this proceeding, not reasonably calculated
to lead to the discovery of admissible evidence, or otherwise beyond the scope of
permissible discovery in this proceeding as authorized by the Federal Rules of Civil
Procedure, the Local Rules, and the standing orders of the Court.
4.
Respondent objects to each request to the extent that it is overly broad,
unduly burdensome, oppressive, redundant, vague, and/or ambiguous.
5.
Respondent objects to each request to the extent that it seeks to impose on
Respondent obligations greater than or different from those imposed under the
Federal Rules of Civil Procedure, or any other applicable law.
6.
Respondent objects to each request to the extent it is a premature contention
request or otherwise purports to require Respondent to identify all facts or evidence
with respect to a particular topic or issue, particularly in connection with Claim 24 in
McFadyen, et al. v. Duke University, et al., where Respondent represents the Plaintiffs.
7.
Respondent objects to each request to the extent it purports to require
Case 1:08-cv-00119-JAB-JEP Document 258-2 Filed 09/03/12 Page 3 of 18
Respondent, a non-party to this litigation, to perform an unreasonable search for
information, as such a request is unduly burdensome and oppressive, and where such
a request may be equally available from a party to the litigation.
8.
Respondent objects to each request to the extent it calls for information
protected from disclosure by Federal Rule of Evidence 408.
9.
Respondent objects to each request to the extent that it seeks information
already within Duke University’s knowledge or control, or equally or more easily
available to it, on the grounds that such request is unduly burdensome or oppressive.
10.
Respondent objects to each request to the extent it seeks a response about
which Respondent would have to draw a legal conclusion in order to make a proper
response.
11.
Respondent objects to each request to the extent that it purports to require
disclosure of information not within Respondent’s possession, custody, or control.
12.
Respondent objects to each request to the extent that it purports to require
Respondent to disclose information, which Respondent is required to maintain in
confidence pursuant to an agreement or understanding with any third party.
Respondent will not disclose this information without an appropriate release from any
such third party.
Case 1:08-cv-00119-JAB-JEP Document 258-2 Filed 09/03/12 Page 4 of 18
13.
Any response by Respondent will be made without in any way waiving or
intending to waive, but rather, to the contrary, by preserving and intending to
preserve:
(a)
All questions as to the competence, relevance, materiality, and admissibility as
evidence for any purpose of the information or the subject matter thereof, in any
aspect of this or other judicial proceeding, or other administrative proceeding or
investigation;
(b)
The right to object on any ground to the use of any such information, or the
subject matter thereof, in any aspect of this or other judicial proceeding, or other
administrative proceeding or investigation;
(c)
The right to object at any time for any further response to this or any other
request for information or production of documents;
(d)
The right to rely on information discovered or generated subsequent to these
responses; and
(e)
The right at any time to supplement this response.
14.
Any response by Respondent will be made without waiving or intending to
waive, but rather preserving and intending to preserve, her right to object to any other
discovery including without limitation to any other request.
Case 1:08-cv-00119-JAB-JEP Document 258-2 Filed 09/03/12 Page 5 of 18
15.
Respondent objects to each request because the subpoenas fail to allow a
reasonable time to comply, especially considered the legal complexities regarding
these subpoenas, and recent events which if necessary, Respondent will provide to the
Court in more detail.
SPECIFIC OBJECTIONS AS TO THE SUBPOENA FOR DOCUMENTS
AND TANGIBLE THINGS
REQUEST #1
Respondent incorporates each of her general objections by reference. Respondent
further objects to this request on the grounds that: (i) it is vague and ambiguous; (ii) it
is overbroad and unduly burdensome, particularly in that it is unlimited as to time; (iii)
it is unduly burdensome in that it seeks information that is cumulative of other
requests or otherwise as accessible to Duke University as it is to Respondent and/or
information already known to Duke University; (iv) it seeks information that is neither
relevant nor reasonably calculated to lead to the discovery of admissible evidence; (v)
it seeks information not within the possession, custody, or control of Respondent; (vi)
it seeks information protected by the attorney-client privilege and/or the attorney
work product doctrine, or another applicable privilege or doctrine; and (vii) it seeks
information that has already been produced in discovery.
Case 1:08-cv-00119-JAB-JEP Document 258-2 Filed 09/03/12 Page 6 of 18
REQUEST #2
Respondent incorporates each of her general objections by reference. Respondent
further objects to this request on the grounds that: (i) it is vague and ambiguous; (ii) it
is overbroad and unduly burdensome, particularly in that it is unlimited as to time; (iii)
it is unduly burdensome in that it seeks information that is cumulative of other
requests or otherwise as accessible to Duke University as it is to Respondent and/or
information already known to Duke University; (iv) it seeks information that is neither
relevant nor reasonably calculated to lead to the discovery of admissible evidence; (v)
it seeks information not within the possession, custody, or control of Respondent;
and (vi) it seeks information that has already been produced in discovery.
REQUEST #3
Respondent incorporates each of her general objections by reference. Respondent
further objects to this request on the grounds that: (i) it is vague and ambiguous; (ii) it
is overbroad and unduly burdensome, particularly in that it is unlimited as to time; (iii)
it is unduly burdensome in that it seeks information that is cumulative of other
requests or otherwise as accessible to Duke University as it is to Respondent and/or
information already known to Duke University; (iv) it seeks information that is neither
relevant nor reasonably calculated to lead to the discovery of admissible evidence; and
(v) it seeks information not within the possession, custody, or control of Respondent;
Case 1:08-cv-00119-JAB-JEP Document 258-2 Filed 09/03/12 Page 7 of 18
and (vi) it seeks information that has already been produced in discovery.
REQUEST #4
Respondent incorporates each of her general objections by reference. Respondent
further objects to this request on the grounds that: (i) it is vague and ambiguous; (ii) it
is overbroad and unduly burdensome, particularly in that it is unlimited as to time; (iii)
it is unduly burdensome in that it seeks information that is cumulative of other
requests or otherwise as accessible to Duke University as it is to Respondent and/or
information already known to Duke University; (iv) it seeks information that is neither
relevant nor reasonably calculated to lead to the discovery of admissible evidence; (v)
it seeks information not within the possession, custody, or control of Respondent; (vi)
it seeks information protected by the attorney work product doctrine or another
applicable privilege or doctrine; and (vii) it seeks information that has already been
produced in discovery.
REQUEST #5
Respondent incorporates each of her general objections by reference. Respondent
further objects to this request on the grounds that: (i) it is vague and ambiguous; (ii) it
is overbroad and unduly burdensome, particularly in that it is unlimited as to time; (iii)
it is unduly burdensome in that it seeks information that is cumulative of other
Case 1:08-cv-00119-JAB-JEP Document 258-2 Filed 09/03/12 Page 8 of 18
requests or otherwise as accessible to Duke University as it is to Respondent and/or
information already known to Duke University; (iv) it seeks information that is neither
relevant nor reasonably calculated to lead to the discovery of admissible evidence; (v)
it seeks information not within the possession, custody, or control of Respondent; (vi)
it seeks information protected by the attorney-client privilege and/or the attorney
work product doctrine, or another applicable privilege or doctrine; and (vii) it seeks
information that has already been produced in discovery.
SPECIFIC OBJECTIONS AS TO THE SUBPOENA FOR DEPOSITION
TESTIMONY
Respondent Stefanie A. Smith incorporates each of the general objections by
reference. Respondent further objects to this subpoena for testimony on the grounds
that the subpoena: (i) subjects Respondent to undue burden where other less
burdensome means are available under the Federal Rules of Civil Procedure including,
but not limited to, Rule 31; (ii) seeks information that is cumulative of other requests
or otherwise as accessible to Duke University as it is to Respondent, and/or
information already known to Duke University or other parties in this litigation; (iii) is
a premature contention or otherwise purports to require Respondent to identify all
facts or evidence with respect to a particular topic or issue, particularly in connection
Case 1:08-cv-00119-JAB-JEP Document 258-2 Filed 09/03/12 Page 9 of 18
with Claim 24 in McFadyen, et al. v. Duke University, et al., where Respondent represents
the Plaintiffs; (iv) seeks information protected by the attorney-client privilege and/or
the attorney work product doctrine, or another applicable privilege or doctrine; (v) is
premature and does not meet the requirement of good cause as this point in
discovery; and (vi) is wholly improper in light of Respondent’s role in McFadyen, et al.
v. Duke University, et al. Additionally, the proposed fee for Respondent will not
accommodate Respondent for her time.
Dated: August 31, 2012
Respectfully submitted by:
EKSTRAND & EKSTRAND LLP
/s/ Robert Ekstrand
Robert C. Ekstrand (N.C. Bar No. 26673)
811 Ninth Street, Suite 260
Durham, North Carolina 27705
rce@ninthstreetlaw.com
Tel: (919) 416-4590
Fax: (919) 416-4591
Case 1:08-cv-00119-JAB-JEP Document 258-2 Filed 09/03/12 Page 10 of 18
EKSTRAND & EKSTRAND LLP
/s/ Stefanie A. Smith
Stefanie A. Smith (N.C. Bar. No. 42345)
811 Ninth Street, Suite 260
Durham, North Carolina 27705
sas@ninthstreetlaw.com
Tel: (919) 416-4590
Fax: (919) 416-4591
Case 1:08-cv-00119-JAB-JEP Document 258-2 Filed 09/03/12 Page 11 of 18
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
CARRINGTON, ET AL.,
Plaintiffs,
1:08 CV 119
v.
DUKE UNIVERSITY, ET AL.,
Defendants.
CERTIFICATE OF SERVICE 1
I hereby certify that on August 31, 2012, a copy of the foregoing Objections
was served via electronic mail, pursuant to agreement, to the following counsel of
record:
Richard W. Ellis
dick.ellis@elliswinters.com
#
#"' (&%
Case 1:08-cv-00119-JAB-JEP Document 258-2 Filed 09/03/12 Page 12 of 18
Dixie T. Wells
dixie.wells@elliswinters.com
Jeremy M. Falcone
jfalcone@elliswinters.com
Paul K. Sun, Jr.
Paul.sun@elliswinters.com
Thomas H. Segars
tom.segars@elliswinters.com
James M. Weiss
jamie.weiss@elliswinters.com
Grant W. Garber
grant.garber@elliswinters.com
Meghan S. Thelen
meghan.thelen@elliswinters.com
Case 1:08-cv-00119-JAB-JEP Document 258-2 Filed 09/03/12 Page 13 of 18
Christopher Jackson
Chris.Jackson@elliswinters.com
Curtis J. Shipley
Curtis.Shipley@elliswinters.com
Attorneys for Duke University, Robert K. Steel, Richard Brodhead, John Burness, Matthew
Drummond, Victor J. Dzau, Aaron Graves, Robert Dean, and Gary N. Smith
David Thompson
dthompson@cooperkirk.com
Attorneys for Plaintiffs2
Joel Miller Craig
jcraig@kennoncraver.com
Attorney for Benjamin W. Himan
Paul R. Dickinson, Jr.
pauldickinson@lewis-roberts.com
Attorney for Brian Meehan, PHD
$
!
Case 1:08-cv-00119-JAB-JEP Document 258-2 Filed 09/03/12 Page 14 of 18
Reginald B. Gillespie, Jr.
RGillespie@w-rlaw.com
Attorney for the City of Durham and Edward Sarvis
Patricia P. Kerner
tricia.kerner@troutmansanders.com
Attorney for Jeff Lamb, Laird Evans, Lee Russ, Michael Ripberger, Patrick Baker, Ronald
Hodge, Stephen Mihaich, Steven Chalmers, and Beverly Council
Robert James King. III
rking@brookspierce.com
Attorney for Defendants DNA Security, Inc. and Richard Clark
Brian J. McMillan
bmcmillan@brookspierce.com
Attorney for Defendants DNA Security, Inc. and Richard Clark
David W. Long
dwlong@poynerspruill.com
Attorney for Defendant Mark D. Gottlieb
James B. Maxwell
jmaxwell@mfbpa.com
Case 1:08-cv-00119-JAB-JEP Document 258-2 Filed 09/03/12 Page 15 of 18
Attorney for David W. Addison, James T. Soukup, Kammie Michael, and Richard D. Clayton
Dan Johnson McLamb
dmclamb@ymwlaw.com
Attorney for Duke University Health Systems, Inc., Private Diagnostic Clinic, PLLC, Julie
Manly, M.D., Tara Levicy, R.N., and Theresa Arico, R.N.
Shirley Maring Pruitt
spruitt@ymwlaw.com
Attorney for Duke University Health Systems, Inc., Private Diagnostic Clinic, PLLC, Julie
Manly, M.D., Tara Levicy, R.N., and Theresa Arico, R.N.
James Avery Roberts, III
jimroberts@lewis-roberts.com
Attorney for Brian Meehan, PHD
Henry W. Sappenfield
hsappenfield@kennoncraver.com
Attorney for Benjamin W. Himan
Ryan M. Shuirman
rshuirman@ymwlaw.com
Attorney for Duke University Health Systems, Inc., Private Diagnostic Clinic, PLLC, Julie
Manly, M.D., Tara Levicy, R.N., and Theresa Arico, R.N.
Case 1:08-cv-00119-JAB-JEP Document 258-2 Filed 09/03/12 Page 16 of 18
Edwin M. Speas, Jr.
espeas@poynerspruill.com
Attorney for Defendant Mark D. Gottlieb
Eric P. Stevens
estevens@poyners.com
Attorney for Defendant Mark D. Gottlieb
D. Martin Warf
martin.warf@troutmansanders.com
Attorneys for Jeff Lamb, Laird Evans, Lee Russ, Michael Ripberger, Patrick Baker, Ronald
Hodge, Stephen Mihaich, Steven Chalmers, and Beverly Council
Linwood Wilson
LinwoodW@aol.com
Pro Se
Case 1:08-cv-00119-JAB-JEP Document 258-2 Filed 09/03/12 Page 17 of 18
Dated: August 31, 2012
Respectfully submitted by:
/s/ Stefanie A. Smith
Stefanie A. Smith (NC Bar No. 42345)
Case 1:08-cv-00119-JAB-JEP Document 258-2 Filed 09/03/12 Page 18 of 18
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