MCFADYEN et al v. DUKE UNIVERSITY et al

Filing 312

MOTION for Leave to File by BRECK ARCHER, RYAN MCFADYEN, MATTHEW WILSON. Responses due by 11/26/2012 (Attachments: #1 Exhibit Reply Brief, #2 Text of Proposed Order)(SPARKS, STEFANIE)

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

RYAN MCFADYEN, et al.,
Plaintiffs,
v.
DUKE UNIVERSITY, et al.,
Defendants.

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1:07-cv-953-JAB-JEP

MOTION FOR LEAVE TO FILE REPLY BRIEF
RYAN

MCFADYEN,

MATTHEW

WILSON,

and

BRECK

ARCHER (“Plaintiffs”), respectfully request leave to file their Reply
Brief supporting their Motion for a Protective Order regarding the
Duke Defendants’ subpoenas to take their counsel’s depositions in
Carrington, et al. v. Duke University, et al.

The Reply Brief is

attached as Exhibit 1.
In support of this Motion, Plaintiffs show the Court the following:
1.

In Carrington, et al. v. Duke University, et al., undersigned
counsel filed a Motion to Quash Duke’s Subpoenas to
Take the Depositions of Litigation Counsel in McFadyen,

et al. v. Duke University, et al. (Carrington, DE 258) on
September 3, 2012.

The Duke Defendants filed their

Response in Opposition to the Motion to Quash
(Carrington,

DE

261)

on

September

10,

2012.

Undersigned counsel filed a Motion to Extend Time to File
their Reply Brief (Carrington, DE 268) on September 25,
2012.

The Duke Defendants filed their Response

(Carrington, DE 269) on September 26, 2012. In their
Response, Duke neither consented to nor opposed the
Motion for Extension of Time. Undersigned counsel’s

Reply to the Duke Defendants’ Response to undersigned

counsel’s Motion to Extend Time to File Reply Brief was
originally due on October 15, 2012.
2.

Undersigned counsel then filed their Motion for Extension
of Time to Harmonize Deadlines for Reply Briefs in
Carrington and McFadyen (Carrington, DE 272) on
October 4, 2012.

The Duke Defendants filed their

Response (Carrington, DE 275) on October 12, 2012. In

their Response, the Duke Defendants neither consented
to nor opposed undersigned counsel’s request for an

extension.

Defendants’

Undersigned counsel’s Reply to the Duke

Response

to

undersigned

counsel’s

harmonization Motion was originally due on October 29,
2012.
3.

After an Order from the District Court of Maine,
undersigned counsel requested an extension of 3 days in
Carrington on October 15, 2012 (Carrington, DE 276).

4.

The Duke Defendants filed their Response on October 18,
2012. (Carrington, DE 279.) In their Response, the Duke
Defendants neither consented to nor opposed the Motion
for a 3-day extension in Carrington. As of October 18,
2012, the date requested in Carrington, DE 276,
undersigned counsel had not received an order from the
Court granting their extension of time. Thus, on October
19, 2012, undersigned counsel filed a Reply to Duke’s

Response to undersigned counsel’s Motion for Extension
of Time (Carrington, DE 280) with a revised protective
order that would essentially permit undersigned counsel to
file their Reply Brief supporting their Motion to Quash
Duke’s Subpoenas on the date an order was issued by the
Court granting their extension of time.
5.

Undersigned counsel’s Motion for Extension of Time was
referred to the Court on October 22, 2012.

6.

To date, the Court has not yet issued an order relating to
the undersigned counsel’s Motion for Extension of Time
(Carrington, DE 276).

7.

Undersigned counsel is filing a similar Motion for Leave to
File a Reply Brief in 1:08-cv-119.

8.

In this case, Plaintiffs filed their Motion for a Protective
Order (DE 294) relating to the Duke Defendants’
subpoenas to take the depositions of their litigation
counsel

Robert

Ekstrand

September 3, 2012.

and

Stefanie

Smith

on

The Duke Defendants filed their

Response in Opposition to the Motion for a Protective
Order (DE 300) on September 27, 2012.

The original

deadline for Plaintiffs’ Reply Brief was October 15, 2012.
9.

On October 12, 2012 the Honorable John H. Rich III of the
United States District Court for the District of Maine
entered an order granting in part and denying for the most
part Duke’s motion to compel the deposition and
production of documents of one of the two authors of one
of the books the Duke Defendants refer to in their
response briefs opposing Plaintiffs’ Motion for a Protective
Order and undersigned counsel’s Motion to Quash the
Duke Defendants’ subpoenas to take Plaintiffs’ counsel’s
depositions. In granting in part Duke’s Motion, the District
Court of Maine is permitting a very limited inquiry.
Plaintiffs were evaluating whether the District Court of
Maine’s order had any bearing upon the arguments the
Duke

Defendants

advanced

in

their

responses

in

opposition to the Motion to Quash and Motion for

Protective Order relating to Duke's subpoenas to take the
depositions of Plaintiffs' litigation counsel.
10. Plaintiffs did not require significant time to do so, but did
require a modest amount of time to assess the Order and
thus respectfully requested from the Court a short
extension of 3 days. Plaintiffs were made aware of the
Memorandum Decision on October 15, 2012 in an email
from the Duke Defendants’ counsel to Plaintiffs’ counsel,
which the Memorandum Decision was attached to.
11.

Plaintiffs requested a 3-day extension of time to file their
Reply Brief supporting their Motion for a Protective Order.
(DE 305.) The Duke Defendants filed their Response on
October 18, 2012. (DE 308.) In their Response, the Duke
Defendants neither consented to nor opposed Plaintiffs’
Motion for a 3-day extension. As of October 18, 2012, the
date requested in DE 305, Plaintiffs had not received an
order from the Court granting their extension of time.
Thus, on October 19, 2012, Plaintiffs filed a Reply to
Duke’s Response to Plaintiffs’ Motion for Extension of

Time (DE 309) with a revised protective order that would
essentially permit the Plaintiffs to file their Reply Brief
supporting their Motion for a Protective Order on the date
an order was issued by the Court granting their extension
of time.
12. Plaintiffs’ Motion for Extension of Time was referred to the
Court on October 22, 2012.
13. To date, the Court has not yet issued an order relating to
Plaintiffs’ Motion for Extension of Time (DE 305).
14. Because of the nature of the Motion for Protective Order
and the privilege issues involved, Plaintiffs are now
respectfully requesting leave to file their Reply Brief.
15. Plaintiffs certify that no significant changes have been
made to their Reply Brief since October 18, 2012.
16. This Motion is made in good faith and not for purposes of
delay.
17. Plaintiffs’ counsel contacted counsel for the Duke
Defendants early this morning to obtain their position on
this Motion.

Plaintiffs’ counsel has not yet heard from

counsel for the Duke Defendants but will advise the Court
when Plaintiffs’ counsel does hear from the Duke

Defendants’ counsel.

For the reasons set forth above, Plaintiffs respectfully request
an order permitting them to file their Reply Brief in support of their
Motion for Protective Order regarding the Duke Defendants’
subpoenas to take their counsel’s depositions in Carrington, et al. v.
Duke University, et al.1 A proposed order is attached as Exhibit 2.

November 2, 2012

Respectfully submitted by:
/s/ Robert C. Ekstrand
Robert C. Ekstrand
N.C. Bar No. 26673
EKSTRAND & EKSTRAND
811 Ninth Street, Second Floor
Durham, North Carolina 27705
[e-mail]
Tel. [phone]
Fax [phone]
Counsel for Plaintiffs

1

Plaintiffs believe that an order granting this request will make the pending
motion to extend time in McFadyen (DE 305) moot.

.

/s/ Stefanie A. Smith
Stefanie A. Smith
N.C. Bar No. 42345
Ekstrand & Ekstrand LLP
811 Ninth Street, Second Floor
Durham, North Carolina 27705
[e-mail]
Tel. [phone]
Fax [phone]
Counsel for Plaintiffs

.

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

RYAN MCFADYEN, et al.
Plaintiffs,
v.
DUKE UNIVERSITY, et al.
Defendants.

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)
)
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1:07-cv-953-JAB-JEP

CERTIFICATE OF SERVICE
On the date electronically stamped below, the foregoing
Motion and text of Plaintiffs’ proposed order granting the Motion
was filed with the Court’s CM/ECF System, which will send a
Notice of Electronic Filing containing a link to download the filing
to counsel of record, all of whom are registered with the Court’s
CM/ECF System.

Respectfully submitted,
/s/ Stefanie A. Smith
Stefanie A. Smith
N.C. Bar No. 42345