MCFADYEN et al v. DUKE UNIVERSITY et al

Filing 307

RESPONSE in Opposition re #297 First MOTION to Compel filed by DUKE UNIVERSITY. Replies due by 11/2/2012. (Attachments: #1 Exhibit 1- Email from Ms. Wells to Mr. Ekstrand, #2 Exhibit 2- Transcript from Rule 26(f) Conference, #3 Exhibit 3- Email from Mr. Ellis to Mr. Ekstrand, #4 Exhibit 4- Dukes Responses to Plaintiffs First Requests for Production, #5 Exhibit 5- Dukes Responses to Plaintiffs Third Requests for Production, #6 Exhibit 6- Dukes Responses to Plaintiffs First Set of Interrogatories, #7 Exhibit 7- Dukes Amended Responses to Plaintiffs First Set of Interrogatories, #8 Exhibit 8- Dukes First Supplemental Response to Plaintiffs Third Requests for Production, #9 Exhibit 9- Dukes Responses to Plaintiffs Fourth Requests for Production, #10 Exhibit 10- Dukes Responses to Plaintiffs Second Set of Interrogatories, #11 Exhibit 11- Subpoena to Richard Brodhead, #12 Exhibit 12- Duke Universitys Response to Plaintiffs First Requests for Admissions)(SUN, PAUL)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
CIVIL ACTION NUMBER 1:07-CV-00953
RYAN McFADYEN, et al.,

)
)
Plaintiffs,
)
)
v.
)
)
DUKE UNIVERSITY, et al.,
)
)
Defendants.
)
_____________________________ )

DUKE UNIVERSITY’S
OPPOSITION TO PLAINTIFFS‘
MOTION TO COMPEL

Defendant Duke University (herein ―Duke‖), through counsel, submits its
brief in opposition to Plaintiffs‘ Motion to Compel. [DE 297 (the ―Motion‖)].
INTRODUCTION
Plaintiffs filed their Motion to Compel after discovery closed on Counts 21
and 24. The four issues Plaintiffs present in the Motion reflect the same lack of
diligence evident in the filing of the Motion after the close of discovery.
First, Plaintiffs demand that Duke remove redactions of the names of every
student in its document production. The Protective Order entered by the Court
permits such redactions. [DE 284]. Moreover, as counsel for Plaintiffs is well
aware, Duke cannot remove the redactions of any names of its students without
potentially violating federal law and bearing an enormous burden of notifying

those students.1
Second, after a year of discovery, Plaintiffs now complain about Duke‘s
selection of seventeen custodians from whom to search email files. Plaintiffs‘
complaint is misleading – Duke produced email data from more than those
seventeen custodians, and produced non-electronic data not only from those
seventeen key custodians, but from over seventy other custodians as well. But
even if Plaintiffs had a legitimate complaint, they do not explain their delay in
raising it, do not identify any additional custodians they believe possess relevant
electronic documents, and offer no justification for the enormous burden it would
place on Duke at this point in the case to do additional electronic discovery.
Third, Plaintiffs urge the Court to enforce thirteen subpoenas on current and
former Duke employees served by Plaintiffs six days before the close of
discovery. Each of the subpoenas demanded numerous categories of documents,
and duplicated in large part requests for production Plaintiffs served on Duke. These
subpoenas are per se unreasonable under Rule 45.
Fourth, Plaintiffs ask the Court to require Duke to amend its responses to
three requests for admissions. Each of these requests includes seven separate
1

Duke briefed this issue for the Court in an unrelated case several months
ago. See Rouse v. Duke University, No. 1:11-cv-00549-CCE-JEP (M.D.N.C. July
23, 2012). [DE 65].
2

factual contentions. Duke has been unable to ascertain that all seven are true, and is
entitled to assert lack of information or knowledge as reason for its inability to admit
or deny. Therefore, there is no cause to order Duke to amend its responses.
ARGUMENT
I.

Duke Properly Redacted Student Names from Produced Documents.
Paragraph 8 of the Protective Order allows the parties to redact information

from produced documents, and Duke properly redacted information in the
documents it produced. [DE 284 ¶ 8]. As the Protective Order requires, Duke
prepared a log of these redactions.
Duke had not provided the redaction log to Plaintiffs as of the date
Plaintiffs filed their Motion, because the Protective Order requires a party to
request the log. [DE 284 ¶ 8 (―Upon the request of counsel for any Party to this
Litigation, the disclosing person shall produce a log describing the nature of the
redacted Confidential Information.‖)]. In an abundance of caution, Duke treated
Plaintiffs‘ argument in its Motion as such a request, providing to Plaintiffs on 11
October 2012 the log reflecting redactions made for reasons other than attorneyclient privilege or pursuant to the work product doctrine. (Email from Ms. Wells
to Mr. Ekstrand, dated 11 October 2012, attached as Exhibit 1).

3

Not only are Duke‘s redactions consistent with the Protective Order, but
most of the redactions are required by federal law. Duke‘s redaction log reflects
primarily redactions pursuant to the Federal Educational Rights and Privacy Act,
20 U.S.C. § 1232g (―FERPA‖). FERPA generally prohibits educational
institutions from disclosing personally identifiable information in its education
records without advance written consent from the student. See id. § 1232g(b)(1);
34 C.F.R. § 99.30(a); United States v. Miami Univ., 91 F. Supp. 2d 1132, 1145
(S.D. Ohio 2000) (―FERPA imposes a direct obligation on universities not to
disclose ‗education records‘‖) (quotation in original), aff’d, 294 F.3d 797 (6th Cir.
2002). Thus, FERPA requires that Duke redact from education records the
names of students who are not involved in the current litigation.
The documents Duke produced and that are at issue are ―education records.‖
FERPA defines education records as ―records, files, documents, and other materials
which – (i) contain information directly related to a student; and (ii) are maintained
by an educational agency or institution or by a person acting for such agency or
institution.‖ 20 U.S.C. § 1232g(a)(4)(A). This language is ―broad and
nonspecific,‖ leading schools to err on the side of nondisclosure. See Gonzaga
Univ. v. Doe, 536 U.S. 273, 292 (2002) (Breyer, J., concurring).

4

Plaintiffs have the burden to demonstrate the relevance of the personally
identifiable information in the education records that Duke has produced in this
case, and they have not met that burden. See, e.g., Ragusa v. Malverne Union
Free Sch. Dist., 549 F. Supp. 2d 288, 291-92 (E.D.N.Y. 2008). The Ragusa court
ruled that the party seeking disclosure of education records was required to
demonstrate a ―genuine need for the information that outweighs the privacy
interests of the students.‖ Id. at 292 (quoting Rios v. Read, 73 F.R.D. 589, 598
(E.D.N.Y. 1977)). In other words, ―a party seeking disclosure of education
records protected by FERPA bears a ‗significantly heavier burden . . . to justify
disclosure than exists with respect to discovery of other kinds of information,
such as business records.‘‖ Id. (quoting Rios, 73 F.R.D. at 598).
Plaintiffs have undertaken no such effort. Instead, Plaintiffs point only to
Duke‘s redactions of ―all student names‖ in documents produced in response to
more than fifty document requests. (Mot. at 4) [DE 297]. Given the scope of this
objection, Duke would bear a significant burden if forced to notify ―all student
names‖ from more than 6,000 documents across more than 17,000 pages prior to
disclosure. See 34 C.F.R. § 99.31(a)(9)(ii) (requiring notice to students in
advance of disclosure of education records containing personally identifiable
information pursuant to court order). This burden to Duke, and to its former
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students to the extent they wish to challenge the disclosure order, also weighs in
favor of non-disclosure. See, e.g., Nastasia v. New Fairfield Sch. Dist., No.
3:04CV925 (TPS), 2006 WL 1699599, at *1 (D. Conn. June 19, 2006) (ordering
notification to student at issue in advance of production of documents containing
personally identifiable information).
II.

Plaintiffs’ Belated Request to Search the Electronic Data of Unnamed
Additional Custodians is Improper.
Duke has been appropriately responsive to Plaintiffs‘ discovery requests. To

date, Duke has produced 6709 documents (17,488 pages) to Plaintiffs. These
documents were generated from multiple sources including:
the email accounts of seventeen individuals2 identified as likely to have
relevant documents; the non-electronic files of a total of 96 custodians
(both individuals and offices/departments, inclusive of the seventeen
email custodians), which resulted in the production of 2336 documents
(6390 pages); and
consistent with Duke‘s courtesy provision of messages from email
accounts assigned to Plaintiffs Archer, McFadyen, and/or Wilson, Duke

2

These seventeen custodians are: (1) Zoila Airall; (2) Richard Brodhead; (3)
Stephen Bryan; (4) Robert Dean; (5) Matthew Drummond; (6) Roland Gettliffe;
(7) Aaron Graves; (8) Kate Hendricks; (9) Larry Moneta; (10) Sara-Jane Raines;
(11) Michele Rasmussen; (12) Judith Ruderman; (13) Gary Smith; (14) Robert
Steel; (15) Greg Stotsenberg; (16) Sue Wasiolek; and (17) Gerald Wilson.
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provided Plaintiffs with thousands of emails for which one of the three
Plaintiffs was the sender or recipient.3
In sum, Duke has done much more than merely produce electronic documents
connected to seventeen custodians. Nonetheless, Plaintiffs now seek an order of the
Court compelling Duke to search additional custodians‘ electronic data, without
telling the Court or Duke who these additional custodians should be. Plaintiffs
have neither specified what additional discovery they seek, nor showed why they
could not have filed this motion before discovery closed. Plaintiffs‘ request is
improper given this lack of specificity and their nearly year-long failure to raise this
issue. Requiring Duke to expend additional time and resources at this point would
be inefficient and impractical.

3

―Recipient‖ includes where a Plaintiff‘s identity appeared in the header in the
―To,‖ ―From,‖ ―CC,‖ or ―BCC‖ field. These documents were identified from an
automated search, without custodial limitation. False positive hits were removed
from this data, but the documents were not otherwise reviewed for relevance or
responsiveness (because Plaintiffs were being provided with their own emails). A
comprehensive review of these same sources would have rendered this particular
production prohibitively burdensome, because each document would have had to
have been reviewed for relevance, responsiveness, privilege, and confidentiality.

7

A.

Plaintiffs’ Year-long Delay in Raising the Issue Waives Their
Entitlement to Relief.

Courts recognize that a party has an obligation to pursue discovery
diligently, and will deny a motion to compel where the filing party has unduly
delayed in bringing such a motion. See, e.g., 8B Charles Alan Wright, Arthur R.
Miller, Mary Kay Kane, & Richard L. Marcus, Federal Practice & Procedure §
2285 (3d ed.) (2012) (collecting cases). In this case, Duke informed Plaintiffs of its
intent to limit its electronic data discovery to seventeen custodians over a year ago,
and repeated that to Plaintiffs in writing on at least eight separate occasions during
discovery. The procedure Duke followed is consistent with the law, and
Plaintiffs‘ delay in bringing the matter to the Court forecloses any argument that
Duke should be compelled to conduct additional electronic discovery.
First, Duke suggested this approach before discovery even began in both
this case and the Carrington matter. On 1 August 2011, over thirteen months
before discovery closed, Duke proposed in its Rule 26(f) report to limit its initial
review of data to a specified group of seventeen custodians. [DE 231 ¶ 3(h)(1),
pp. 14-16].
Contrary to Plaintiffs‘ assertion, (Mot. at 5) [DE 297], the Court did not
reject Duke‘s position during the Rule 26(f) conference in late August 2011.
Instead, recognizing the potential burden from a large universe of custodians, the
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Court suggested a procedure whereby plaintiffs in the Carrington matter would
provide Duke with a list of potential custodians. This procedure allowed Duke to
evaluate the potential burden created by the inclusion of each custodian and, if
necessary, present evidence to the Court of the burden in seeking to limit the
custodians further:
MS. WELLS: . . . [T]he estimates that we have gotten from our vendors for
-- and that we have made ourselves for preserving and processing the data
for the 18 that we have identified, which is almost a terabyte of data, the
costs just for processing and storing that information for one year -- and this
litigation has already been going on for many more years than that. The
cost ranges between $762,000 and $1.5 million just for processing and
storing that. And the costs of reviewing that go into more millions. Your
Honor, that is incredibly burdensome and—
THE COURT: And I would agree and don‘t -- don‘t the cases say, however,
that you demonstrate that burden, you‘re relieved of some of this
responsibility, or you can pass it off or give him, the other side, the
opportunity to do their own work in storing and processing?
MS. WELLS: Yes, Your Honor. And if Mr. Thompson would give us
those 60 names within a reasonable time, we would be prepared to do that
and come to the Court with those specific costs that would be incurred by
Duke if we are obliged to do for the 60 that he mentioned.
THE COURT: All right.
(Transcript 37:21-38.21, attached as Exhibit 2).
The parties in Carrington followed this process and have completed
discovery without dispute on this issue. On the other hand, in this case, Plaintiffs‘
counsel never provided any list or otherwise engaged Duke on the issue of
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custodians. Accordingly, in responding to Plaintiffs‘ requests, Duke limited the
custodians it searched.
On 22 September 2011, almost exactly a year before discovery closed,
Duke sent Plaintiffs the specific list of seventeen custodians, explaining that these
custodians represented approximately 800 GB of information. (Email from Mr.
Ellis to Mr. Ekstrand, dated 22 September 2011, attached as Exhibit 3). In that
message, Duke also offered to meet and confer regarding the list. Id.
Duke reiterated its position to Plaintiffs. On 9 November 2011, nearly
eleven months before the close of discovery, Duke served its responses to Plaintiffs‘
first requests for production. In these responses, Duke notified Plaintiffs that it
was limiting its initial review to seventeen custodians:
In order to reasonably mitigate costs while still complying with discovery
mandates, the Duke Defendants have limited their initial review of data to a
specified group of seventeen custodians, whose names have been previously
supplied to the Plaintiffs. These seventeen custodians are a significant
number of custodians for the two narrow claims going forward as to the
Duke Defendants, and the Duke Defendants believe that these custodians
will yield the most substantial and complete data, without being
‗unreasonably cumulative or duplicative.‘‖ Further, going beyond this list
of seventeen custodians imposes both a ―burden‖ and ―expense‖ that
―outweighs‖ the ―likely benefit‖ to be gained from searching the electronic
records of additional custodians.

10

(Duke‘s Responses to Plaintiffs‘ First Request for Production, at 2-3, attached as
Exhibit 4). Duke also provided Plaintiffs with extensive support in the case law
for its position. (Id. at 2-3, nn. 1, 2; see also infra § II.B (reciting cases Duke cited
in response to Plaintiffs‘ document requests)).
Six more times, in various subsequent responses to Plaintiffs‘ document
requests, and within its interrogatory responses, Duke made clear that it limited its
email data searches to the seventeen custodians:
10 May 2012, Duke‘s Responses to Plaintiffs‘ Third Requests for
Production, relevant excerpt attached as Exhibit 5, served four
months before the close of discovery;
10 May 2012, Duke‘s Responses to Plaintiffs‘ First Set of
Interrogatories, relevant excerpt attached as Exhibit 6, served four
months before the close of discovery;
6 June 2012, Duke‘s Amended Responses to Plaintiffs‘ First Set of
Interrogatories, relevant excerpt attached as Exhibit 7, served over
three months before the close of discovery;
7 August 2012, Duke‘s First Supplemental Response to Plaintiffs‘
Third Requests for Production, relevant excerpt attached as Exhibit
8, served over a month before the close of discovery;
21 September 2012, Duke‘s Responses to Plaintiffs‘ Fourth Requests
for Production, relevant excerpt attached as Exhibit 9; and
21 September 2012, Duke‘s Responses to Plaintiffs‘ Second Set of
Interrogatories, relevant excerpt attached as Exhibit 10.
Plaintiffs‘ delay in raising this issue forecloses the relief they now seek.
11

See, e.g., RDLG, LLC v. RPM Group, LLC, No. 1:10cv204, 2012 WL 3202851, at
*1 (W.D.N.C. Aug. 6, 2012) (holding that absent specific order from the court in
scheduling order, party must generally move to compel compliance with discovery
request prior to close of discovery or motion is untimely); Surrett v. Consol.
Metco, Inc., Civil No. 1:11cv106, 2012 WL 1340548, at *2 (W.D.N.C. Apr. 18,
2012) (same) (finding that because plaintiff filed her motion to compel after close
of discovery, it was untimely and therefore denied).
Had Plaintiffs raised the issue in November 2011, Duke might have been
able to reach an agreement with Plaintiffs (as Duke did in Carrington). Now
though, Duke has completed its year-long review and produced responsive
documents. Duke would incur a tremendous expense of time and resources if
ordered now to conduct an entirely separate review of documents. See, e.g., U.S. ex
rel. McBride v. Halliburton Co., 272 F.R.D. 235, 240-241 (D.D.C. 2011) (motion
denied to add thirty-five custodians whose data would have to be searched where
defendant had already spent ―king‘s ransom‖ responding to discovery requests,
additional searches would be expensive and time-consuming, and plaintiff did not
demonstrate that e-mails that had not yet been produced were crucial to her proof;
holding ―[w]ithout any showing of the significance of the non-produced e-mails,
let alone the likelihood of finding the ‗smoking gun,‘ the [party‘s] demands [for
12

additional custodians] cannot possibly be justified when one balances its cost
against its utility‖).
In Garcia v. Tyson Foods, Inc., No. 06-2198-JWL-DJW, 2010 WL 5392660,
(D. Kan. Dec. 21, 2010), the defendants asserted that the plaintiffs unreasonably
delayed in bringing their motion to compel. The defendants argued that, similar to
this case, the plaintiffs had known the names of the particular custodians for whom
the defendants intended to search e-mails, and the plaintiffs never once objected to
that list of custodians, nor did the plaintiffs request that any specific custodians be
added to the list. Id. at *2.
The Garcia court found that the plaintiffs failed to demonstrate that in the
time since the list was first provided, they had gained any new information about
the custodian list that would provide good cause for extending their deadline to file
their motion to compel discovery of additional custodians. Id. at *12. Likewise,
Plaintiffs‘ untimely demand that Duke effectively start over in discovery that is
now closed lacks merit where Plaintiffs have known for more than a year that
Duke was limiting its email accounts review to seventeen key custodians.
B.

Duke’s Limitation to Seventeen Custodians Likely to Have
Relevant Information Was Proper.

Even had Plaintiffs timely objected to Duke‘s position, its initial limitation
to seventeen custodians was proper. Courts generally defer to the producing
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party‘s identification of the custodians likely to possess responsive documents.
See Garcia, 2010 WL 5392660, at *14 (―Plaintiffs present no evidence that a
search of e-mail repositories of the 11 [additional] employees at issue is likely to
reveal any additional responsive e-mails. . . . Plaintiffs must present something
more than mere speculation that responsive e-mails might exist in order for this
Court to compel the searches and productions requested.‖). When the matter is
contested, courts limit the number of custodians. See, e.g., Martinez-Hernandez
v. Butterball, LLC, No. 5:07-cv-174-H, 2010 WL 2089251, at *4-5 (E.D.N.C. May
21, 2010) (request for ―thirty-plus custodians‖ found unreasonable and unduly
burdensome). Courts will consider the financial burden created by a large number
of custodians. See, e.g., Thermal Design, Inc. v. Guardian Bldg. Prods. Inc., No.
08-C-828, 2011 WL 1527025, at *1 (E.D. Wis. Apr. 20, 2011) (considering cost
in denying request to expand custodians).
Plaintiffs have never indicated which custodians were lacking, the rationale
justifying a proposed custodian‘s connection to the litigation, or any information
Plaintiffs assert was not provided in the more than 6,000 documents (over 17,000
pages) produced. (Mot. at 5-6) [DE 297]. In their Motion, Plaintiffs completely
failed to address the likelihood of receiving information relevant to Counts 21 and
24, which by Court order are the only Counts proceeding. [DE 218; 282].
14

Duke ―need not provide discovery of electronically stored information
that the party identifies as not reasonably accessible because of undue burden or
cost.‖ See Fed. R. Civ. P. 26(b)(2)(B). Without any guidance from Plaintiffs,
Duke cannot provide the Court with specific information regarding the potential
burden posed by adding particular additional custodians. Given the timing and
the unfocused, over broad nature of Plaintiffs‘ request, however, little question
exists that requiring Duke to re-start its review process would constitute a
significant and unreasonable burden and expense.
III.

Plaintiffs’ Third-Party Subpoenas Are Unreasonable.
Rule 45 of the Federal Rules of Civil Procedure makes clear that a subpoena

must allow a reasonable time for compliance. See Fed. R. Civ. P. 45(c)(3)(A)(i)
(mandating that, upon a timely motion, a court ―must quash or modify a subpoena
that . . . fails to allow a reasonable time to comply‖). Plaintiffs served the thirteen
subpoenas at issue on Saturday, 15 September 2012, six days before the close of
discovery. The subpoenas set the compliance date for the final day of discovery,
21 September 2012, six days after service. Because the document subpoenas were
untimely and improper, all thirteen witnesses served objections to the subpoenas
on 21 September 2012, as permitted by Rule 45(c)(2)(B).

15

Subpoenas that require documents to be produced in six days are
unreasonable as a matter of law. See Brown v. Hendler, No. 09 Civ. 4486(RLE),
2011 WL 321139, at *2 (S.D.N.Y. Jan. 31, 2011) (finding nine days not reasonable
and noting that ―[f]ederal courts have also found compliance times of eight and
seven days not to be reasonable‖ pursuant to Rule 45); Tri Invs., Inc. v. Aiken
Cost Consultants, Inc., No. 2:11cv4, 2011 WL 5330295, at *2 (W.D.N.C. Nov. 7,
2011) (quashing deposition subpoena because ―[s]ix total days and four business
days is not a reasonable time to comply with a subpoena and notice of
deposition‖). The unreasonable demand for compliance within six days is
magnified here, where all but one of the subpoenas contained twenty-seven or
more categories.4
In addition, Plaintiffs‘ document subpoenas were an impermissible attempt
to circumvent the requirements of Rule 34. See Joiner v. Choicepoint Servs.,

4

The subpoenas to Richard Brodhead, Stephen Bryan, John Burness,
Gerald Wilson, Prasad Kasibhatla, Larry Moneta, Robert Steel, Robert Thompson,
and Sue Wasiolek contained thirty-three topics each. The subpoenas to Zoila
Airall, Jack Bookman, and Judith Ruderman contained twenty-seven topics each.
The subpoena to Chris Cramer contained seventeen topics. (See generally DE
297-4 through 297-16). Subpoena recipients Brodhead, Bryan, Wilson, Moneta,
Steel, Wasiolek, Airall, and Ruderman are among the seventeen custodians for
whom Duke has already reviewed and produced extensively from searches of
both email and hard-copy data.
16

Inc., Case No. 1:05CV321, 2006 WL 2669370, at *6 (W.D.N.C. Sept. 15, 2006)
(―Plaintiff‘s proper remedy to seek documentation belonging to Defendant is
through a Rule 34 request‖). The subpoenas at issue were directed to current or
former Duke employees. Virtually every document requested by the subpoenas
was also sought through document requests to Duke. (Compare Subpoena to
Richard Brodhead, attached as Exhibit 11, topics 1, 7, and 15 with Exhibit 9, Nos.
39-41). These third-parties would have been subjected to an undue burden to
search for documents that Duke, a named defendant in this case, was also asked to
produce.
For each of these reasons, the witnesses timely objected to the subpoenas.
See Fed. R. Civ. P. 45(c)(2)(B). Duke respectfully requests that the Court deny
Plaintiffs‘ request to compel the third-party witnesses‘ compliance with these
untimely and unreasonable subpoenas.
IV.

Plaintiffs Cannot Compel Different Responses to Requests for
Admission.
Duke timely served its responses to Plaintiffs‘ First Requests for

Admission on 10 January 2012. (Duke University‘s Response to Plaintiffs‘ First
Requests for Admissions, attached as Exhibit 12). Eight months later, and after the
close of discovery, Plaintiffs seek to compel under Rule 37 different responses to
three of Plaintiffs‘ requests for admission. (Mot. at 10) [DE 297].
17

Pursuant to Rule 36(a)(4), Duke was obligated to admit the matter requested,
or state in detail why it could not truthfully admit or deny it. See Fed. R. Civ. P.
36(a)(4). That Rule permits a party to not admit or deny a request when it lacks
knowledge or information to do so, but only if the answering party ―states that it
has made a reasonable inquiry and that the information it knows or can readily
obtain is insufficient to enable it to admit or deny.‖ Id.
Duke fully complied with Rule 36. [DE 297-2]. Thus, Duke‘s original
responses are neither evasive nor incomplete such that they should be treated as a
failure to respond. See Fed. R. Civ. P. 37(a)(4). Duke is not otherwise required
now to provide a more complex response to these requests. See, e.g., Ohio Cas.
Ins. Co. v. Firemen’s Ins. Co. of Washington, D.C., No. 5:07-CV-149-D, 2008 WL
413849, at *3 (E.D.N.C. Feb. 13, 2008) (―The purpose of a request for admission
is not to require a party to detail the entire factual background of the case or to
provide all facts that weigh in a decision to admit or deny a request for
admission.‖).
Furthermore, Duke was under a duty to amend its prior responses to
Plaintiffs‘ requests for admission only if it learned that the responses were in some
material respect incomplete or incorrect, and if the additional or corrective
information had not otherwise been made known to Plaintiffs during the discovery
18

process or in writing. See Fed. R. Civ. P. 26(e)(1)(A).
The three requests for admission at issue sought Duke‘s admission that (1)
Sgt. Smith and (2) Sgt. Stotsenberg provided a (3) key card report for (4) 3/13/06
to (5) 3/14/06 of (6) Plaintiffs Archer, McFadyen, or Wilson to (7) Defendant
M.D. Gottlieb. For Duke to admit these three requests, it would need to establish
that each of these seven elements was accurate. Duke has not obtained any new
knowledge that would allow it to do so. For example, none of the testimony cited
by Plaintiffs states whether or not the DukeCard data Duke Sgt. Smith provided to
Durham Sgt. Gottlieb included data for Plaintiffs Archer, McFadyen, or Wilson.
Regardless, any additional information gleaned from the depositions cited by
Plaintiffs has already been made known to Plaintiffs.
The Southern District of New York encountered a similar issue when a pro
se litigant moved ―to compel different answers to requests for admission.‖
Shuster v. Olem, No. 96 Civ. 1993(LMM)(HBP), 1997 WL 27041, at *1 (S.D.N.Y.
Jan. 23, 1997). The court explained that while ―plaintiff, understandably, disagrees
with the responses, [the] responses are full and complete and plaintiff has offered
no competent evidence suggesting they are false, misleading or made in bad faith.‖
Id. Here, Plaintiffs cannot compel Duke to revise its timely answers to requests for
admission simply because it disagrees with Duke‘s answers.
19

CONCLUSION
For the reasons stated herein, Duke respectfully requests that the Court deny
Plaintiffs‘ Motion to Compel.
This the 16th day of October, 2012.
/s/ Paul K. Sun, Jr.
Paul K. Sun Jr.
N.C. State Bar No. 16847
Email: [e-mail]
Jeremy M. Falcone
N.C. State Bar No. 36182
Email: [e-mail]
Thomas H. Segars
N.C. State Bar No. 29433
Email: [e-mail]
James M. Weiss
N.C. State Bar No. 42386
Email: [e-mail]
Ellis & Winters LLP
1100 Crescent Green, Suite 200
Cary, North Carolina 27518
Telephone: [phone]
Facsimile: [phone]

20

Dixie T. Wells
N.C. State Bar No. 26816
Email: [e-mail]
Ellis & Winters LLP
333 N. Greene St., Suite 200
Greensboro, NC 27401
Telephone: [phone]
Facsimile: [phone]
Counsel for Duke University

21

CERTIFICATE OF SERVICE
I hereby certify that on October 16, 2012, I electronically filed the foregoing
with the Clerk of the Court using the CM/ECF system, which will send
notification of such filing to all counsel of record and to Mr. Linwood Wilson,
who is also registered to use the CM/ECF system.
This the 16th day of October, 2012.
/s/ Paul K. Sun, Jr.
Paul K. Sun, Jr.
N.C. State Bar No. 16847
Email: [e-mail]
Ellis & Winters LLP
1100 Crescent Green, Suite 200
Cary, North Carolina 27518
Telephone: [phone]
Facsimile: [phone]
Counsel for Duke University

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