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 8

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
CARRINGTON, et al.,
Plaintiffs,
v.

1:08 CV 119

DUKE UNIVERSITY, et al.
Defendants.

ROBERT C. EKSTRAND AND EKSTRAND & EKSTRAND
LLP’S OBJECTIONS TO DUKE UNIVERSITY’S SUBPOENAS
FOR DOCUMENTS AND SUBPOENA FOR DEPOSITION

Pursuant to Rule 45, Robert C. Ekstrand and Ekstrand & Ekstrand LLP submit
the following objections to the subpoenas to produce documents, information, or
objects or to permit inspection of premises in a civil action served on Robert C.
Ekstrand and Ekstrand & Ekstrand, LLP on February 14, 2012 and the subpoena for
deposition testimony of Robert C. Ekstrand also served on February 14, 2012.
Exhibit A attached to both the document subpoena to Robert C. Ekstrand and to
Ekstrand & Ekstrand LLP appears to be identical outside of the use of “You” versus
the “Firm.” To the extent there are differences beyond this, Robert C. Ekstrand and
Ekstrand and Ekstrand LLP (“Respondents”), explicitly reserve the right to assert
further objections.

GENERAL OBJECTIONS
1.

Respondents object to each request to the extent that it seeks information that

is protected from disclosure by the attorney-client privilege, the work product
doctrine, and/or other applicable privileges or protections.
2.

Respondents object to each request to the extent that it does not state with

reasonable particularity the information requested.
3.

Respondents object 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.
4.

Respondents object to each request to the extent that it is overly broad,

unduly burdensome, oppressive, redundant, vague, and/or ambiguous.
5.

Respondents object to each request to the extent that it seeks to impose on

Respondents obligations greater than or different from those imposed under the
Federal Rules of Civil Procedure, or any other applicable law.
6.

Respondents object to each request to the extent it is a premature contention

request or otherwise purports to require Respondents to identify all facts or evidence
with respect to a particular topic or issue, particularly in connection with Claim 24 in
2

McFadyen, et al. v. Duke University, et al., where Respondents represent the Plaintiffs.
7.

Respondents object to each request to the extent it purports to require

Respondents, non-parties 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.

Respondents object to each request to the extent it calls for information

protected from disclosure by Federal Rule of Evidence 408.
9.

Respondents object 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.

Respondents object to each request to the extent it seeks a response about

which Respondents would have to draw a legal conclusion in order to make a proper
response.
12.

Respondents object to each request to the extent that it purports to require

disclosure of information not within Respondents’ possession, custody, or control.
13.

Respondents object to each request to the extent that it purports to require

Respondents to disclose information, which Respondents are required to maintain in
confidence pursuant to an agreement or understanding with any third party.
3

Respondents will not disclose this information without an appropriate release from
any such third party.
15.

Any response by Respondents 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.

4

17.

Any response by Respondents will be made without waiving or intending to

waive, but rather preserving and intending to preserve, their right to object to any
other discovery including without limitation to any other request.
18.

Respondents object to each request because the subpoenas fail to allow a

reasonable time to comply.

SPECIFIC OBJECTIONS AS TO THE DOCUMENTS AND TANGIBLE
THINGS REQUESTED
REQUEST #1
Respondents incorporate each of their general objections by reference. Respondents
further object 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 Respondents 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
Respondents.

5

REQUEST #2
Respondents incorporate each of their general objections by reference. Respondents
further object 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 Respondents 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
Respondents.

REQUEST #3
Respondents incorporate each of their general objections by reference. Respondents
further object 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 Respondents and/or
information already known to Duke University; (iv) it seeks information that is neither

6

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
Respondents.
REQUEST #4
Respondents incorporate each of their general objections by reference. Respondents
further object 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 Respondents 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 Respondents;
and (vi) it seeks information protected by the attorney-client privilege and/or the
attorney work product doctrine, or another applicable privilege or doctrine.

REQUEST #5
Respondents further object to this request on the grounds that: (i) it seeks
information not within the possession, custody, or control of Respondents and (ii)

7

that to Respondents’ knowledge documents responsive to this request do not exist.
REQUEST #6
Respondents incorporate each of their general objections by reference. Respondents
further object 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 Respondents 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 Respondents;
and (vi) it seeks information protected by the attorney-client privilege and/or the
attorney work product doctrine, or another applicable privilege or doctrine.

REQUEST #7
Respondents incorporate each of their general objections by reference. Respondents
further object 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

8

requests or otherwise as accessible to Duke University as it is to Respondents 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 Respondents;
and (vi) it seeks information protected by the attorney-client privilege and/or the
attorney work product doctrine, or another applicable privilege or doctrine.

REQUEST #8
Respondents incorporate each of their general objections by reference. Respondents
further object 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 Respondents 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
Respondents.

9

SPECIFIC OBJECTIONS AS TO THE SUBPENA FOR DEPOSITION
TESTIMONY

Respondent Robert C. Ekstrand 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
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 his time.

10

Dated: March 14, 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
[e-mail]
Tel: [phone]
Fax: [phone]

EKSTRAND & EKSTRAND LLP
/s/ Stefanie A. Smith
Stefanie A. Smith (N.C. Bar. No. 42345)
811 Ninth Street, Suite 260
Durham, North Carolina 27705
[e-mail]
Tel: [phone]
Fax: [phone]

11