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 19

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

EDWARD CARRINGTON, et al.,

)
)
Plaintiffs,
) Civil Action No.
)
v.
) 1:08-CV-00119
)
DUKE UNIVERSITY, et al.,
)
)
Defendants.
)
)
________________________________/

Videotaped Deposition of THOMAS V. CLUTE
(Taken by Defendant)
Wednesday, March 21, 2012
Washington, DC

Reported By: Lee Bursten, RPR, CRR

Page 117
1
2

Q

As you read the comment, did you find it to

be a threatening comment?

3

A

No.

4

Q

Why not?

5

A

Peter has a, you know -- is always joking

6

around and has a pretty big sense of humor.

7

known Peter for a while, and never been in any

8

situation where he's threatened or has threatened me

9

or has been in a threatening state.

10

Q

I've

So more based on your experience with

11

Peter, you were able to know there wasn't a

12

threatening comment?

13

A

Yes.

14

Q

Did you ever talk to Peter about the

15

comment?

16

A

No.

17

Q

Did you hear anyone make a comment about a

18

cotton shirt at the party?

19

A

I don't remember.

20

Q

Have you since heard anything about someone

21

making a comment about a cotton shirt?

22

MS. SMITH:

Objection.

To the extent it

23

calls for work product opinion or communications with

24

counsel, I would instruct you not to answer.

25

A

I'm not going to answer.

Page 129
1

Q

Who do you recall having a video camera?

2

A

I don't remember.

3

camera.

I believe everyone had a

I mean, phones had cameras then, I think.

4

Q

Did you have a camera?

5

A

I believe I did.

6

Q

Did you take any photos of the party?

7

A

I don't recall.

8

Q

Did you take any videos of the party?

9

A

No.

10

Q

Did you talk to any of your teammates about

11

a video being made at the party?

12

MS. SMITH:

Objection to the extent that

13

this conversation was in the presence of counsel or

14

regarding advice from counsel, outside the presence

15

of counsel.

16

A

17

I'm not going to answer.

BY MR. FALCONE:

18

Q

19

instruction?

20

A

Yes.

21

Q

Who was present in the conversations that

22

You're not answering based on Ms. Smith's

you're describing?

23

A

Which conversations?

24

Q

The conversation in which -- strike that.

25

I understand you're not answering my question of did

Page 130
1

you talk to your teammates about a video being made

2

at the party based on Ms. Smith's instructions not to

3

answer that question if it occurred in the presence

4

of counsel, correct?

5

A

Yes.

6

Q

And I'm just asking who was there in that

7

conversation.

8
9

MS. SMITH:

Just for the record, I'm

including outside the presence of counsel to the

10

extent that they were discussing advice from counsel.

11

BY MR. FALCONE:

12
13

Q

Understanding that, who was there at this

conversation?

14

A

I don't recall.

15

Q

You don't recall who was there?

16

A

No.

17

Q

Do you recall the conversation?

18

A

I don't recall the conversation.

19

Q

But you're going to refuse to answer my

20

question based on instruction from counsel?

21

A

Yes.

22

Q

Did you ever discuss with any of your

23

teammates about destroying a video of the party?

24
25

MS. SMITH:
applies.

Objection.

Same objection.

Same instruction

Page 179
1

A

I don't recall.

2

Q

Do you have any reason to believe that

3

attorneys for Duke attended the hearing on the motion

4

to quash the subpoenas?

5

MS. SMITH:

Objection.

To the extent that

6

that calls for communications with counsel, I

7

instruct you not to answer.

8
9
10
11

A

I'm not going to answer the question.

BY MR. FALCONE:
Q

Again, you've said that you've read the

complaint in the case you've filed against Duke?

12

A

Yes.

13

Q

After reading the complaint, did you have

14

any understanding as to whether or not attorneys for

15

Duke attended the hearing?

16

A

I don't recall.

17

Q

If you turn to what is the third page of

18

this document, and I apologize, they've got a blank

19

page in between each one, that's how it was produced.

20

I'm looking at the bottom of that third page, under

21

number 9, which reads, "Undersigned counsel has

22

specifically notified legal counsel for Duke

23

University that neither Mr. Clute nor his parents

24

consent to the disclosure of these Federally

25

protected records.

This action was taken to

Page 254
1

There were incidents -- I mean, Dean Rasmussen's

2

advice was to leave multiple times.

3

campus because of incidents occurring with other

4

lacrosse players, incidents that occurred like Take

5

Back the Night outside of my dorm room where hundreds

6

of people -- where people gathered.

7
8
9

Q

I stayed off

Where in Dean Rasmussen's e-mail does she

tell you to leave campus?
A

Again, Dean Rasmussen and I had an ongoing

10

relationship and communication.

11

e-mail, I think she's trying to best balance the

12

desires that she knew we had and her belief that we

13

should leave with our academic schedule.

14

Q

In this current

But you would agree with me that in this

15

e-mail at least she's not telling you to leave

16

campus, correct?

17
18

A

In this e-mail, no.
MS. SMITH:

Jeremy, just not to interrupt

19

for a second, but if you're done with this e-mail, I

20

just want the record to show that on behalf of the

21

McFadyen plaintiffs, we do not believe that there's

22

any waiver of the work product privilege with this

23

untitled attachment.

24
25

MR. FALCONE:

Despite the fact that he

forwarded it to his sister?

Page 255
1

MS. SMITH:

Yes, because Mr. Clute's choice

2

to waive it by forwarding it to his sister does not

3

waive it on behalf of our clients, according to the

4

joint defense agreement, and also the work product

5

privilege that we do still assert.

6

MR. FALCONE:

Is Kate Clute a participant

7

to the joint defense agreement?

8

MS. SMITH:

9

It is Mr. Clute's e-mail to his

sister that you're asserting waives it.

And I'm

10

simply asserting -- I mean, we can continue to

11

discuss this now or we can save it.

12

for the record before we leave the topic of this

13

e-mail that we do not believe that the untitled

14

attachment, the work product opinion associated with

15

that, has been waived.

16
17

MR. FALCONE:

I'm asserting

Okay.

BY MR. FALCONE:

18

Q

Mr. Clute, if you could turn back to

19

Exhibit 1.

20

A

Yes.

21

Q

You state, "Living on east campus where

Interrogatory number 11.

22

many of the demonstrations happened, I was forced to

23

leave school and return home."

24
25

When did you first go home?
A

I don't recall the exact date.