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 18

Page 1
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

EDWARD CARRINGTON, et al.,

)
)
Plaintiffs,
)
)
v.
)
)
DUKE UNIVERSITY, et al.,
)
)
Defendants.
)
)
-----------------------------/

Civil Action No.
1:08-CV-00119

Videotaped Deposition of MICHAEL P. CATALINO
Washington, DC
Saturday, February 25, 2012

Reported by: Lee Bursten, RPR, CRR

Page 92
1
2

Q

Do you remember stopping at the house at

Urban Street before going back to your dorm room?

3

A

No.

4

Q

That evening, did you hear Nick O'Hara make

5

a comment about a cotton shirt?

6

MS. SMITH:

Objection to the extent that

7

your knowledge is solely limited to your

8

communications with counsel, I would instruct you not

9

to answer.

To the extent that you heard something

10

that night or you have knowledge of something outside

11

of communications with counsel, then you can answer

12

the question.

13

BY MR. FALCONE:

14

Q

And I apologize if that wasn't clear, but

15

my question was expressly, that evening, did you hear

16

Nick O'Hara make a comment about a cotton shirt?

17

A

No.

18

Q

Have you since heard Nick O'Hara -- strike

19

that.

20

you since heard that Nick O'Hara made a comment about

21

a cotton shirt?

22

Keeping in mind your counsel's objection, have

MR. GUSTAFSON:

I just reiterate the

23

instruction, not merely an objection, an instruction

24

not to comment on things you've heard from counsel.

25

A

So I don't want to answer that.

Page 192
1

certainly not.

2

before we took the break.

3

And I made that clear on the record

MR. FALCONE:

We're talking about -- I'm

4

asking questions about the other subjects that were

5

discussed in the meeting, who called the meeting.

6

And I understood the instructions to be not to

7

answer.

Is that correct?

8
9

MS. SMITH:
clarify.

As to his -- I mean, I want to

I don't know what you're saying as to some

10

of the questions, because some of the questions you

11

asked I did not object to, that were directly related

12

to the videotape.

13

portions of the meeting in which there are other

14

privilege issues that have not been waived.

15

And now you're talking about other

MR. FALCONE:

And you did not allow us to

16

go into those, I guess based on your assertion of the

17

privilege.

18

MS. SMITH:

Right.

Because I'm not

19

asserting the privilege right now on behalf of Mike

20

Catalino.

21

clients, including our civil clients right now, who

22

have a privilege that exists with the joint defense

23

agreement.

24
25

There's other individuals who are our

MR. FALCONE:
joint defense agreement?

Who is a participant to the

Page 193
1

MS. SMITH:

2

the individuals we represented.

3

Do you want me to name -- all

MR. FALCONE:

If you don't mind naming them

4

or giving some way of putting some identity to them,

5

that would be great.

6

MS. SMITH:

Yes.

Do you want me to go

7

through all -- it includes every single person

8

that -- every single member of the 2005-2006 team.

9

MR. FALCONE:

10
11

MS. SMITH:

Anyone else?

Including Devon Sherwood, who

sought legal advice from us.

12

MR. FALCONE:

In addition to the 2005-2006

13

team, does the joint defense privilege you are

14

asserting apply to anyone else?

15

MS. SMITH:

16

Beyond the members of that

team?

17

MR. FALCONE:

18

MS. SMITH:

Correct.
In terms of who -- in terms of

19

other counsel, yes.

20

the holder of the privilege, the holder of the

21

privilege is the clients.

22

about if you want me to go through individuals --

23

I mean, if you're talking about

MR. FALCONE:

24

privilege.

25

team?

But if you're talking

I'm talking the holder of the

Is there anyone beyond the 2005-2006

Page 194
1

MS. SMITH:

2

MR. FALCONE:

3
4

Mike Pressler.
Did you represent Mike

Pressler?
MS. SMITH:

He at points came in and sought

5

legal advice from Ekstrand & Ekstrand.

6

capacity, the holder of the privilege extends to the

7

parents, who played the role of not just the payer,

8

but also played the role of being part in assisting

9

in the legal representation.

10
11

And in that

I think we asserted

that privilege with one of the parents yesterday.
MR. FALCONE:

Coach Pressler, all the

12

members of the 2005-2006 team, and all the parents of

13

the members of the 2005-2006 team?

14

MS. SMITH:

I mean, we would have to go

15

through the individuals, with the parents and knowing

16

who it applies to.

17

MR. FALCONE:

So some of the parents it

18

applies to and some it does not?

19

MS. SMITH:

My position is that it applies

20

to all of them.

But if there was one that was not

21

directly assisting in the legal representation, under

22

the law, and was just a payer or something, then we

23

wouldn't claim it.

24

every single -- our position is that every single

25

parent that was one of our parents of one of the

My belief is, looking back now,

Page 195
1

clients was a direct assistance in it.

2

say that the privilege does -- they're a holder of

3

the privilege as well.

4
5

MR. FALCONE:

When did that privilege

begin?

6

MS. SMITH:

7

MR. FALCONE:

8
9

So we would

March -- it depends per person.
How much variance are we

talking about?
MS. SMITH:

I mean, you're talking about a

10

couple of days when people that sought prior to

11

the non-testimonial order, which was March 23rd.

12

then we had individuals who sought more legal

13

assistance March 23rd.

14

agreement does is it retroactively dates back from

15

not just the date that they signed that, but from

16

when they sought legal assistance from us.

17

And

MR. FALCONE:

So what the joint defense

So we've got Coach Pressler,

18

every member of the '05-'06 team, every parent of the

19

'05-'06 team.

20

Anyone else?

MS. SMITH:

No.

I mean, not that I'm -- my

21

position is to say that I do not believe that there

22

is anyone else.

23

MR. FALCONE:

24

MS. SMITH:

25

John Lantzy?
To the extent, yes, at points

he sought legal advice from us associated with the

Page 196
1

case.

2

MR. FALCONE:

3

MS. SMITH:

Chris Kennedy?
No.

Now, we have separate

4

representation of Chris Kennedy on different matters.

5

But in terms of -- what you're asking right now is

6

the joint defense agreement that is in regards to the

7

investigation in the criminal allegations; is that

8

correct?

9

MR. FALCONE:

10

MS. SMITH:

That's correct.

Not any type of privilege that

11

anyone has with any other type of matter with

12

Ekstrand & Ekstrand?

13

MR. FALCONE:

14

MS. SMITH:

15

That's correct.

MR. FALCONE:

Okay.

Then no.

Any other employees of Duke

16

University that are a member of the joint defense

17

privilege that you've just described?

18

MS. SMITH:

No.

19

MR. GUSTAFSON:

Mr. Falcone, if you're done

20

with this line of questioning, I feel I understand

21

your position better at this point.

22

to take another break, if I may, to confer with

23

Stefanie.

And I would like

Would that be acceptable?

24

MR. FALCONE:

That's fine.

25

THE VIDEOGRAPHER:

Going off the record at

Page 197
1

3:31 p.m.

2

(Recess.)

3

THE VIDEOGRAPHER:

4

Back on the record at

3:40 p.m.

5

MS. SMITH:

I just want to put on the

6

record, in terms of the joint defense agreement, I am

7

stating on the record today, whoever called the --

8

there certainly could be someone that I'm leaving

9

out.

And to that extent, you can certainly ask in an

10

interrogatory who are the members or signatories to

11

the joint defense agreement.

12

What I say is, on the record, I'm not going

13

to say who I stated is an exhaustive list.

14

it is as close as possible.

15

individual who I'm not asserting it on behalf of, I'm

16

certainly not waiving it as to them.

17

MR. FALCONE:

18

MR. GUSTAFSON:

I think

But if there's an

Understood.
Mr. Falcone, we're prepared

19

to permit your line of questioning provided that we

20

can agree that we're waiving privilege only as to

21

Michael's conversation with Ekstrand, at which this

22

tape came up, and no further.

23

MR. FALCONE:

We're not prepared to make

24

any agreement about the scope of the waiver until we

25

have any sense of the scope of the waiver.

I think