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 16

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UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

EDWARD CARRINGTON, et al.,
Plaintiffs,
vs.
DUKE UNIVERSITY, et al.,
Defendants.

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No. 1:08-CV-00119

Videotaped Deposition of
BENJAMIN KOESTERER
Friday, February 17, 2012
San Francisco, California

Reported by: GEORGE SCHUMER, CSR 3326

Page 123
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2

Q.

At the time you left, had Ms. Mangum and

Ms. Roberts come to the party already?

3

A.

Yes.

4

Q.

As of the time you left, had Ms. Mangum and

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Ms. Roberts left the party?

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A.

Sort of.

7

Q.

Were they still in the vicinity, at 610?

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A.

On the premise.

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Q.

Were they outside of the house?

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you left.

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A.

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At the time

I think they went out the back door, and I

went out the front door.
Q.

And at the time you left, to the extent that

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Ms. Mangum and Ms. Roberts performed, they had already

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done that; correct?

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A.

Yes.

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Q.

Were any non-lacrosse team members present at

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the party?

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MS. SMITH:

I'm just going to assert an

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objection here.

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to the extent that any information you derived from

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your attorneys at Ekstrand and Ekstrand, I would

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instruct you not to answer.

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Ben, along this line of questioning,

To the extent you have personal knowledge from
that night, or from some outside source, outside our

Page 124
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attorney-client representation with your teammates, go

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ahead and answer.

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4

But if you don't, I would instruct you not to
answer.

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THE WITNESS:

Can you repeat that, Stefanie?

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MR. THOMPSON:

What she's saying is if you

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know the answer to this question, only because someone

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at Ekstrand and Ekstrand told you, then you can't

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answer the question.

But if you have any other basis

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for answering the question, then go ahead and answer

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the question.

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THE WITNESS:

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Can you repeat it,

please?

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Understood.

MR. SEGARS:
Q.

Sure.

Were any people who were not members of the

lacrosse team in attendance at the party?

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A.

Not that I know of.

18

Q.

Were any Duke administrators at the party?

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A.

Not that I know of.

20

Q.

Were any of the coaches of the lacrosse team

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at the party?

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A.

Not that I know of.

23

Q.

Did any of the coaches assist in planning the

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party?

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A.

Not that I'm aware of.

Page 186
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Mr. Finnerty was trying to discover whether this sort

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of information existed?

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A.

I don't think I was aware of this.

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Q.

Did you ever discuss the subject of whether

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there were on-campus security cameras with Collin

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Finnerty?

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A.

Not that I recall.

8

Q.

After Ms. Mangum's allegations came to light,

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did you and Collin Finnerty ever discuss the fact that
you walked back to your dorm room together?
A.

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Yes.
MS. SMITH:

Objection.

To the extent that

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those discussions were part of your relationship with

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Ekstrand and Ekstrand, and our joint defense agreement

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with Tom Finnerty, and in connection with that

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representation, I would instruct you not to answer.

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MR. THOMPSON:

But if it wasn't something you

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learned about from Ekstrand and Ekstrand, go ahead and

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answer.

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THE WITNESS:

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MR. SEGARS:

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discuss about that?

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25

A.

Yes.
Q.

What did you and Collin

Just the fact that we left together, and we

just discussed what we did; where we went.
Q.

Did you and Collin discuss that after Collin