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)

EXHIBIT 1
Reply Brief

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

RYAN McFADYEN, et al.,
Plaintiffs,
v.

1:07-CV-953-JAB-JEP

DUKE UNIVERSITY, et al.,
Defendants.
REPLY SUPPORTING PLAINTIFFS’ MOTION FOR A PROTECTIVE ORDER
BARRING DEPOSITIONS OF THEIR LITIGATION COUNSEL
Duke squanders its Response (ECF No. 300) by grousing about Plaintiffs’ assertion
of privilege and the Joint Defense Agreement1 in unrelated contexts and ignores the specific
showing this Court requires to justify taking the deposition of a party-opponent’s litigation
counsel. As this Court explained:
[A] request to depose a party’s litigation counsel, by itself, constitutes good
cause for obtaining a Fed. R. Civ. P. 26(c) protective order, and further, that
the motion may, and should, be filed prior to the scheduled deposition. At that
point, the burden of going forward then shifts to the party seeking the
deposition to show the propriety and need for the deposition. It may do so by
demonstrating, among other considerations, that (1) there are no persons
other than the attorney available to provide the information; (2) other
methods, such as written interrogatories, would not be as effective; (3) the
inquiry will not invade attorney-client privilege or work product; and (4) the
information is of such relevance that the need for it outweighs the
disadvantages and problems inherent in deposing a party's litigation attorney.
Static Control Components v. Darkprint Imaging, 201 FRD 431, 434 (M.D.N.C. 2001)
(citations omitted. Plaintiffs established good cause for the protective order they seek
All of the Plaintiffs in this case and Carrington are parties to the Joint Defense Agreement (“JDA”).
(Ex. 1, Ekstrand Decl., Ex. C (JDA specimen).) The JDA protects communications and work product shared
in furtherance of their common interest in these proceedings and in the underlying criminal proceedings.
1

by showing that Duke issued subpoenas to take the deposition of Plaintiffs’ litigation
counsel in the related case, Carrington, et al. v. Duke Univ., et al. (“Carrington”). (Pls’ Mot.
for a Protective Order (ECF No. 294) (“the Motion”).)2 The burden then shifted to
Duke to show that “there are no persons other than [Ekstrand or Smith] available to
provide the information” Duke seeks; that “other methods, such as written
interrogatories, would not be as effective in obtaining the information” Duke seeks;
that Duke’s examination of Smith and Ekstrand “will not invade the attorney-client
or work product privilege;” and that the information Duke seeks “is of such
relevance that the need for it outweighs the disadvantages and problems inherent in
deposing a party's litigation attorney.” Static Control, 201 F.R.D. at 434. For the
reasons explained below and in the parallel briefing in Carrington,3 Duke fails to make
that showing, and Plaintiffs are entitled to a protective order barring Duke from
taking the depositions of Ekstrand or Smith.
1. Duke’s claim that Plaintiffs’ counsel did not meet and confer with Duke’s
counsel to resolve the issues raised in the Motion is false. Duke asserts that “no
conference occurred in connection with the protective order sought in this case.” (Duke Br.
at 5-6, n.2.) That is not true. In fact, Plaintiffs’ counsel arranged a meeting to confer with
Duke’s counsel for the purpose of resolving the issues raised in the Motion immediately
2 Plaintiffs’ litigation counsel, Robert C. Ekstrand and Stefanie A. Smith will be referred to
throughout this Reply as Ekstrand and Smith, respectively. Ekstrand & Ekstrand LLP will be referred to as
“the Firm.”

To avoid duplication of argument, Plaintiffs incorporate the points and authorities detailed in
Movants’ briefing in support of Movants’ parallel motion under Fed. R. Civ. P. Rule 45 filed in Carrington. (See
Motion to Quash and Reply, Carrington, ECF Nos. 258 and __, respectively.)
3

after receiving the subpoenas, and the conference took place on February 24, 2012. (Ex. No.
1, Ekstrand Decl. ¶¶ 2-10.) In the conference, Plaintiffs’ counsel attempted to resolve the
issues raised in the Motion several ways. (Id.) First, Plaintiffs’ counsel asked Duke’s counsel
to identify the facts they believed Ekstrand had personal knowledge of that were relevant,
not privileged, and not available through other, less burdensome means. (Id.) Duke’s lawyers
could not or would not identify any such facts. (Id.) Next, Ekstrand asked Duke’s counsel to
identify the general topics that they believed Ekstrand had personal knowledge of that were
relevant to the claims going forward, not privileged, and not available through less
burdensome means. (Id.) Again, Duke’s counsel could not or would not do so, and Mr. Sun
added, “we don’t have to tell you that.” (Id.) Such behavior made resolving the issues raised
in this motion a practical impossibility, and, predictably, the issues could not be resolved
without court intervention. (Id.)
2.
deposition.

Duke misrepresents the history of its subpoena to take Ekstrand’s
Without any notice whatsoever, Duke issued a subpoena for Ekstrand’s

deposition on February 14, 2012. (Ex. No. 1, Ekstrand Decl. ¶¶ 11-18.) In doing so, Duke
disregarded a standing agreement among counsel that depositions would not be noticed or
subpoenaed without first conferring about the witness’s (here, Ekstrand’s) dates of
availability. (Id.) That agreement has been followed for every other witness deposed in this
case. (Id.) The subpoena that called for Ekstrand’s deposition conflicted with pre-existing
obligations and did not afford sufficient time for Ekstrand to confer with the holders of the
privileges implicated by Duke’s subpoenas to determine whether the holders wanted to waive

or assert their privilege. (Id.) On February 20, 2012, Smith contacted Duke’s counsel to
arrange a meeting to confer about the issues raised by Duke’s subpoenas. During the
conference on February 24, 2012, Ekstrand offered to propose a schedule that would allow
sufficient time to consult with the holders of the privileges implicated by the subpoena. (Id.
¶¶ 13-14.) Three days later, Ekstrand proposed a schedule for serving responses and
objections to Duke’s subpoenas including a proposed deposition date of June 11, 2012. (Ex.
1, Ekstrand Decl. ¶¶ 14-15; id. Ex. A, Letter from Ekstrand to Sun and Wells, Feb. 27, 2012).
Duke rejected Ekstrand’s proposed schedule because it was not “reasonable,” but did not
explain why. (Ex. 1, Ekstrand Decl. ¶ 15; id. Ex. B, Letter from Sun to Ekstrand and Smith,
Feb. 27, 2012.)
After Duke rejected Ekstrand’s proposed schedule, Duke’s lawyers failed to propose
an alternative, allowed months to pass without acting at all, and never re-issued a subpoena
to take Ekstrand’s deposition. (Id. ¶¶ 15-18.) In late May, 2012, Duke’s lawyers asked for
dates of Ekstrand’s availability, and Smith reminded them that he had proposed June 11,
2012. This time, Duke’s counsel said that June 11 would “not work” for them. Smith advised
Duke of Ekstrand’s next available day, September 4, 2012. (Id.) Duke had still failed to
issue a subpoena compelling Ekstrand to appear and testify on that date, and, on August
31, 2012, Ekstrand asked Duke’s lawyers to issue a subpoena to appear and testify on
September 4, 2012. (Id.) Duke’s lawyers refused to do so, despite Ekstrand’s offer to wait
after a deposition at Duke’s lawyers’ offices in Cary while they prepared a subpoena. (Id.)

Thus, any delay in adjudicating the issues raised in this Motion was caused by Duke’s dilatory
conduct.
3. The Carrington Plaintiffs have repeatedly asserted the privilege and the
protections of the Joint Defense Agreement. Duke misleads by suggesting that Smith
was the only person who asserted the protections of the Joint Defense Agreement in
depositions of the team members who participated in the Joint Defense Agreement. To the
contrary, counsel for the Carrington Plaintiffs repeatedly asserted the Agreement. Moreover,
contrary to Duke’s claim that it is unclear who participated in the Joint Defense Agreement,
counsel for the Carrington Plaintiffs have expressly taken the position that all of the
Carrington Plaintiffs are parties to the Joint Defense Agreement. Moreover, the Carrington
Plaintiffs’ counsel repeatedly asserted the protections of the privilege and the Joint Defense
Agreement on their clients’ behalf throughout discovery. Thus, the Carrington Plaintiffs and
their lawyers have repeatedly asserted the same protections of the Joint Defense Agreement
that Smith has asserted on behalf of the McFadyen Plaintiffs.
4. Duke’s Misunderstanding of Privilege. Throughout discovery, Duke’s lawyers
repeatedly instructed witnesses not to answer questions on grounds of privilege where no
privilege applied. By way of illustration, in the deposition of Duke’s former general counsel,
David Adcock, Mr. Sun directed Mr. Adcock not to disclose the “communication” that
caused Mr. Adcock to review Crystal Mangum’s medical records after her allegations became
public. (Ex. No. 2, Adcock Dep. 232:2-238:22.) Three times, Plaintiffs’ counsel asked Mr.
Adcock to identify who made the communication that Mr. Sun asserted was subject to the

attorney-client privilege. Finally, after Mr. Adcock claimed he did not know the person who
made the purported “communication” to him, Mr. Adcock finally admitted that there was no
such communication at all. As it turned out, the purported “privileged communication” was
a patently non-privileged police report regarding Crystal Mangum:
Adcock: There was no individual who communicated with me that caused
sufficient concern for me to request [Crystal Mangum]’s medical
record. I initially reviewed the police reports and from the Duke
police reports, and as a consequence of reviewing that
document, I decided that it would be appropriate for a number
of reasons to review [Mangum’s] medical record.
Ekstrand: Are you saying, just so I can understand this, are you calling the
Duke police reports communications?
Adcock: They're written documents. I don't know what else they would
be.
Ekstrand: Are you saying those were the communications that caused
you—
Adcock: You asked me why I had that concern, and that's why I had that
concern.
Ekstrand: Okay. So it's those documents and what they reported that
caused you concern?
Adcock: A concern sufficient to ask to see [Mangum’s] medical records.
(Id. 238:15-238:22.) After Mr. Sun’s defecting assertion of the attorney-client privilege to
protect communications that were plainly not privileged in Mr. Adcock’s deposition and
others, he continued to direct witnesses not to answer Plaintiffs’ questions, but modified his
approach by refusing to identify the privilege being asserted or the basis for it, in violation of
Fed. R. Civ. P. Rule 26(c)(5)(A).4

Fed. R. Civ. P. Rule 26(c)(5)(A) requires that “when a party withholds information otherwise
discoverable by claiming that the information is privileged or subject to protection as trial- preparation
4

Mr. Sun employed this approach, for example, in Plaintiffs’ deposition of Richard
Brodhead:
Ekstrand: Who is Chauncey Nartey?
Brodhead: Chauncey Nartey is a student who graduated, and I would
take a minute to think.
***
Ekstrand: All right. And the question I asked you was, how long did
you put him on interim suspension?
Sun:

Objection. President Brodhead, I instruct you not to
answer that question. …

Ekstrand: He wasn't suspended for a single minute, was he?
Sun:

President Brodhead, I instruct you not to answer that
question.

Ekstrand: He was not suspended for a single minute, was he?
Sun:

President Brodhead, I instruct you not to answer that
question.

Ekstrand: On what basis?
Sun:

Federal law.

Ekstrand: Which one?
Sun:

Federal law.

Ekstrand: Which one?
Sun:

I'm not answering. I'm not debating the issues with you,
Counsel. Move on.

(Brodhead Dep 33:25-37:16 (reproduced as Ex. No. 3).)

material, the party must expressly make the claim; and describe the nature of the documents,
communications, or tangible things not produced or disclosed—and do so in a manner that, without
revealing information itself privileged or protected, will enable other parties to assess the claim.” Id. (internal
numbering omitted).

5.

There has been no waiver of any privilege or protection. Duke’s bald

assertion that Plaintiffs’ counsel waived the work product privilege has no merit. Duke
points to nothing that constitutes a waiver under North Carolina law. Instead, Duke claims
that Smith and Ekstrand corrected (unidentified) factual errors in drafts of books about the
underlying criminal proceedings. But Duke identifies no North Carolina authority governing
waiver of privilege to support the proposition that correcting errors in material to be
published operates as an implied waiver under North Carolina law. Nor could it. Implied
waivers do not extend to material that “would convey the attorney’s opinion work product or
mental impressions.” In re Martin Marietta Corp., 856 F.2d 619, 625 n.1 and 626 (4th Cir.
1988), cert denied, 490 U.S. 1011 (1989); Boyce & Isley, PLLC v. Cooper, 195 N.C. App. 625, 638
(2009) (materials reflecting attorney’s mental impressions, conclusions, opinions, or legal
theories are “opinion work product” that is absolutely privileged under North Carolina law).
Further, this Court has held that “because the line between non-opinion work product and
opinion work product can be a fine one, this Court hesitates to order [a lawyer] to reveal
even non-opinion work product” based on an implied waiver, particularly where other means
of obtaining the information are available. Static Control, 201 F.R.D. at 435 (internal citations
omitted). Duke’s waiver argument has no merit.
6. Duke waived any claim that Ekstrand is a necessary witness by failing to
assert it for 5 years. Duke notes references in Plaintiffs’ Complaint to “Plaintiffs’ Defense
Counsel” and “undersigned counsel.” Indeed, Duke counts them up, but, in doing so, Duke
only amplifies its failure to raise the issue for at least 5 years after being placed on notice of

the facts it raises here. Duke’s delay in asserting it dooms its claim that Ekstrand is a witness,
particularly where it is as unconvincing as Duke’s is here.
7. Duke failed to use available means to discover facts regarding the Joint
Defense Agreement.

Duke complains that Ekstrand and Smith suggested to Duke’s

lawyers that they obtain the information they sought regarding the JDA through formal
discovery, specifically, interrogatories and document requests. (Duke Br. at 14.) Duke
correctly notes that Duke is not permitted to issue interrogatories to Ekstrand, Smith, or the
Firm. But nothing prevented Duke from issuing interrogatories to the Plaintiffs in McFadyen
and Carrington. But Duke failed to do so. Indeed, Duke felt free to issue subpoenas for the
production of documents to Ekstrand and the Firm. Notably, Ekstrand and the Firm
complied fully with Duke’s subpoenas for documents; Duke made no motion to compel
further production from Ekstrand or the Firm. Duke’s problems are the result of its own
lawyers’ failure to make appropriate, timely discovery requests of the Plaintiffs in Carrington
and McFadyen. That, of course, does not justify Duke’s attempt to take the deposition of its
party opponents’ litigation counsel, and Duke does not even attempt to make the showing
required by Static Control, 201 FRD 431, 434.
8. Duke—not Smith—confused witnesses when Smith asserted privilege and
the protections of the Joint Defense Agreement (“JDA”). Duke misleads by suggesting
that Smith instructed witnesses not to answer questions. Smith never instructed a witness
not to answer a question posed to them; instead, she advised witnesses not to disclose
matters protected by privilege or the JDA but to answer the question to the extent that they

could answer based upon personal knowledge or information they learned from nonprivileged sources. Witnesses were not confused by Smith’s instruction or by the same or
similar instruction given by the Carrington Plaintiffs’ counsel. Witnesses became confused
by Duke’s lawyers’ failure to comprehend privilege or refusal to honor it by, among other
tactics, instructing the witness to answer with any “facts” the witness knew or heard and by
demanding that the witness report if he was “withholding facts” based on the instruction
given by Smith or the Carrington Plaintiffs’ counsel. All of this, of course, has nothing
whatsoever to do with the showing that Static Control required Duke to make in its
Response. Having squandered its Response in that way, Duke failed to make that showing,
and Plaintiffs are entitled to a protective order barring Duke from taking the depositions of
their litigation counsel.
CONCLUSION
Duke has ignored the specific and substantial showing this Court requires a party to
make in order to justify taking the deposition of a party-opponent’s litigation counsel; and
Plaintiffs are entitled to a protective order barring Duke from taking the depositions of
Ekstrand and Smith.

Respectfully submitted by:
/s/ Robert Ekstrand
Robert C. Ekstrand, NC Bar #26673
Stefanie A. Smith, NC Bar #42345
EKSTRAND & EKSTRAND LLP
811 Ninth Street, Second Floor
Durham, North Carolina 27705
[e-mail]
[e-mail]
Tel. [phone]
Fax [phone]
Counsel for Plaintiffs

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

RYAN McFADYEN, et al.
Plaintiffs,
v.

1:07-CV-953-JAB-JEP

DUKE UNIVERSITY, et al.
Defendants.

CERTIFICATE OF SERVICE
I certify that, on the date electronically stamped below, the foregoing Reply was filed
via the Court’s CM/ECF system, which will send a Notice of Electronic Filing to all parties’
counsel who are registered with the CM/ECF system, and that all parties are represented by
at least one attorney registered with the CM/ECF system, except Defendant Linwood
Wilson, who appears pro se but is personally registered to receive all Notices of Electronic
Filing in this action.
/s/ Robert Ekstrand
Robert C. Ekstrand, N.C. Bar No. 26673

EXHIBIT 1
Declaration of Robert C. Ekstrand

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

RYAN McFADYEN, et al.,
Plaintiffs,
v.

1:07-CV-953-JAB-JEP

DUKE UNIVERSITY, et al.,
Defendants.

DECLARATION OF ROBERT EKSTRAND
1.

I am over the age of eighteen, under no disability, and make this declaration

upon my own personal knowledge as of October 15, 2012 under penalty of perjury pursuant
to 28 U.S.C. § 1746.
A. Certification of Conference Required by Fed. R. Civ. P. Rule 26(c)(1) and LR 37.1
2.

Duke has represented to the Court that “no conference occurred in

connection with the protective order sought in this case.” (Duke Br. n.2, ECF No. 300).
That is false.
3.

My colleague, Stefanie Smith, and I arranged a meeting with Duke’s counsel

within a week after we received Duke’s subpoenas.

The meeting was conducted via

telephone on February 24, 2012. Ms. Smith and I participated in the meeting on behalf of
the Plaintiffs. Mr. Sun participated in the conference on behalf of the Duke Defendants,
along with Ms. Wells, and other counsel for the Duke Defendants.

4.

During the meeting, Ms. Smith and I made a diligent effort to avoid the need

to move for a protective order or move to quash the subpoenas.
5.

Specifically, Ms. Smith and I explained that many privileged communications

were implicated by any deposition of me in connection with this case. We explained that the
work product privilege also protects our thoughts about the claims going forward in the
Carrington case because we have either brought or considered bringing the same claims in the
complaint we filed for the McFadyen Plaintiffs. And we explained that the protections of the
Joint Defense Agreement were also implicated by the subpoena for my deposition on
subjects related to the civil actions and the underlying criminal case because all of the
Carrington Plaintiffs and all of the McFadyen Plaintiffs are parties to that agreement.
6.

In light of those obvious limitations, Ms. Smith and I asked Duke’s counsel to

identify the facts that they believed I had personal knowledge of that were relevant, not
privileged, and could not be obtained by other means. Duke’s lawyers could not or would
not identify any such facts.
7.

I then asked Duke’s lawyers to identify the subjects Duke believed I had

personal knowledge of that were relevant, not privileged, and could not be obtained by other
means. Duke’s lawyers could not or would not identify any subject.
8.

Mr. Sun, speaking for the group, asserted, “we don’t have to tell you that.”

9.

We explained to Mr. Sun that, regardless of whether he “had to” or not, it

would be impossible for us to assess whether and to what extent the deposition implicated
the many privileges that protect my thought processes, my impressions, and much of my
knowledge about the underlying criminal proceedings and the claims going forward in the
Carrington litigation.
10.

Duke’s refusal to identify the subjects of their intended inquiry in particular

made it impossible for Ms. Smith and I to resolve the issues raised in this motion, and,
despite our best efforts, we were unable to resolve them.
B. Duke’s failure to schedule or issue a subpoena to take my deposition.
11.

Duke’s lawyers issued only one subpoena to take my deposition, which set the

deposition on March 20, 2012, at Duke’s lawyers’ office in Cary, North Carolina. (Subpoena
issued to Robert Ekstrand, ECF No. 300-7).1
12.

March 20, 2012 conflicted with pre-existing obligations and did not allow

sufficient time for me to identify all of the holders of privileges implicated by Duke’s
subpoena and confer with each of them regarding their instructions for waiving or asserting
the privilege protecting their communications with Ekstrand & Ekstrand LLP (the “Firm”)
as well as information and communications protected by the Joint Defense Agreement.

Contrary to the standing agreement among all counsel, Duke issued its subpoena to me
without notice or requesting the dates of my availability. That agreement has been followed
for every other witness deposed in this case.
1

13.

In the February 24th conference Ms. Smith and I explained that significantly

more time than the subpoena allowed (March 20, 2012) was necessary to give notice to and
confer with the holders of the privileges. I offered to propose a schedule that would allow
sufficient time for us to identify, notify, and confer with the holders. Duke agreed to
withdraw the subpoena to take my deposition at Duke’s lawyers office in Cary on March 20,
2012, and Ms. Smith and I promised to propose a schedule in connection with the
deposition.
14.

Three days after the conference, I sent a letter to Duke’s counsel proposing

the following schedule:
Last day to notify and consult with the privilege holders: May 14, 2012;
Last day to serve written objections to Duke’s subpoenas: May 14, 2012;
Last day to serve responses to Duke’s subpoenas duces tecum: May 30, 2012;
First day my deposition could be scheduled: June 4, 2012; and
I proposed a deposition date of June 11, 2012.
(Ex. A, Letter from R. Ekstrand to Duke’s Counsel, dated February 27, 2012).

15.

Duke rejected all of those proposed dates. (Ex. B, Letter from Paul Sun to

Ekstrand.) But Duke’s counsel subsequently did nothing, and allowed months to pass
without proposing a different schedule or re-issuing a subpoena.
16.

Long after rejecting the schedule I proposed in February, Duke’s lawyers

asked Smith to provide dates of my availability, and she responded that the first available day
on my calendar was September 4, 2012. But Duke failed to issue a subpoena to take my

deposition on September 4, 2012, and fixing the location. So, on Friday, August 31, 2012, I
informed Duke’s counsel, Jamie Weiss, that Duke had not issued a subpoena to take my
deposition on September 4, 2012, and offered to wait after a deposition at their offices for
one of them to prepare a subpoena.
17.

After some time went by, Mr. Weiss reported that Duke was not going to

issue a subpoena to take my deposition on September 4, 2012. Yet, at the same time, Mr.
Sun insisted that Duke intended to proceed with my deposition on September 4, 2012,
anyway.
18.

On September 3, 2012, Ms. Smith and I filed the motion for a protective

order in this case and a parallel motion to quash the subpoenas in the Carrington action.
C. No holder of any privilege or the protections of the Joint Defense Agreement has
waived any privilege or protection.
19.

Upon receiving Duke’s subpoenas, the Firm notified the holders of privileges

implicated by the subpoenas. All of the privilege holders—including the Carrington Plaintiffs,
the McFadyen Plaintiffs, and the Evans Plaintiffs—have instructed the Firm, Ms. Smith, and
me to assert every privilege each of them holds in connection with any deposition,
subpoena, or other discovery request Duke makes of Ms. Smith, the Firm, or me.
20.

Upon receiving Duke’s subpoenas, the Firm also notified the parties to the

Joint Defense Agreement (“JDA”). A true and accurate copy of the JDA is annexed hereto
as Exhibit C. All of the McFadyen Plaintiffs are parties to the JDA, and, likewise, the

Carrington Plaintiffs’ counsel has confirmed that in writing to Duke’s counsel and to me that
all of the Carrington Plaintiffs are parties to the JDA.
21.

Each of the McFadyen and Carrington Plaintiffs have instructed the Firm, Ms.

Smith, and me to assert all protections available to them under the JDA in connection with
any deposition, subpoena, or other discovery request Duke makes of Ms. Smith, the Firm, or
me.
Under penalty of perjury and pursuant to 28 U.S.C. § 1746, I certify that the
foregoing is true and correct, this the 15th day of October 2012.
/s/ Robert Ekstrand
Robert C. Ekstrand

EXHIBIT A

LAW OFFICES

EKSTRAND & EKSTRAND LLP
811 NINTH STREET
DURHAM, NORTH CAROLINA 27705
[phone]
FAX [phone]
Robert C. Ekstrand
D i r e c t : ( 919 ) 4 5 2 - 4 6 47
RC E @ n i n t h s t r e e t l a w. c o m

February 27, 2012

VIA ELECTRONIC MAIL
Dixie Wells, Esq.
Paul Sun, Esq.
[e-mail]
[e-mail]

Re: Three Subpoenas Issued by Duke University
dated February 14, 2012

Counsel:
This is to follow up, in part, on the issues we discussed during the
conference we requested regarding the three subpoenas Duke University issued to
me and my firm seeking documents and my deposition. Stefanie and I explained
our impression that the subpoenas seek privileged material. We explained that it
will take substantial time to provide the necessary notice of the subpoenas to
those individuals and obtain their position vis-à-vis whether they will direct me to
assert their privilege and, if so, to what extent. As a result of those requirements,
the dates for production and for the deposition designated by Duke’s subpoenas
are not practicable.
As promised, I have identified (at least preliminarily) the parties entitled to
notice of the subpoenas because matters to which a privilege they hold appears to
be sought by the subpoenas. The notice to and related discussions with those
parties should require no more than ten weeks. Following that notice period, a

EKSTRAND & EKSTRAND LLP
Re: Three Subpoenas Issued by Duke University dated February 14, 2012
Monday, February 27, 2012
PG. 2

brief period will be necessary to serve written objections to the subpoenas and to
file motion(s) seeking protection of privileged information and material.
Therefore, I propose a schedule providing that written objections will be
due ten weeks from now, that any production of documents and deposition will be
done four weeks thereafter, and that, if necessary, motions for protective orders
will be due prior to the time set for production and my deposition. This yields the
following schedule, which I propose here:
 Last day to serve written objections: May 14, 2012
 Last day for production pursuant to subpoenas duces tecum: May 30, 2012
 First day deposition may be taken: June 4, 2012.
Finally, I propose that any deposition be taken on June 11, 2012, and will
reserve it for that purpose.
Please advise me prior to Tuesday of this week (the date objections to the
subpoenas are otherwise due) of your position on the proposed schedule. I look
forward to hearing from you.

Cordially,

Robert C. Ekstrand, Esq.
CC:

David Thompson (via email only)

EXHIBIT B

EXHIBIT C

REPRESENTATION AGREEMENT

This is an agreement between Ekstrand & Ekstrand, LLP (the “Firm”) and
____________________________ (the “Client”). Client has been notified that, by virtue of his
status as members of the Duke Lacrosse Team, he is a subject of a criminal investigation being
conducted by Durham law enforcement, and has reason to believe that he also may be the subject
of civil and/or administrative investigations and/or proceedings by such governments as well as
proceedings within Duke University. Specifically, Client has been a subject of accusations made
by the Durham Police Department with respect to matters relating to events that transpired in the
residence located at 610 N. Buchanan on or about March 13, 2006. This agreement is retroactive to the date of client’s initial contact with the Firm, and covers all communications between
client and the Firm since that time. The accusations as well as information received by counsel
indicate that there exists a possibility that Client may become the subject of the same or a similar
criminal, civil or administrative investigation or proceeding (including proceedings conducted by
Duke University’s Judicial Affairs office). Client understands that the Firm has been retained by
a significant majority of the Duke Men’s Lacrosse Team, and that he may have a list of all Team
members who are now or have been represented in this matter by this Firm. Further, Client
understands that the Firm may have Joint Representation arrangements with other counsel who
represent individual members of the Team in this investigation and any subsequent proceedings.
This Joint-Representation Agreement contemplates that EKSTRAND & EKSTRAND,
LLP (“the Firm”) will represent all members of the Duke University Men’s Lacrosse Team who
execute this agreement in all matters relating to or arising from the investigation of allegations of
criminal wrongdoing at the residence located at 610 N. Buchanan Boulevard in Durham, North
Carolina on or about March 13, 2006. Based upon the information available to the Firm at this
time, the Firm does not believe that its representation of all Members currently involves any
actual conflict of interest. Moreover, Client believes and agrees that he and the other individuals
represented by the Firm in this matter have a mutual interest in presenting a unified response to
the allegations and a coordinated approach to the development of evidence in this matter. The
Client understands, however, that, in the future, the Firm’s representation of client in this
multiple representation may give rise to actual conflicts of interest, should the interests of Client
become inconsistent with the interests of the other Clients subject to the same investigation and
proceedings.
Although the Firm is not currently aware of any actual conflicts, events may develop that
cause the Firm's representation of an individual Client to become adverse to the representation of
the one, some or all of the other Clients involved in this joint representation. Client recognizes
his right to employ separate counsel now, or at any later time in the investigation or subsequent
proceedings, if any. This agreement does not in any way bind Client—or anyone—to continuing
representation by the Firm. Client understands that he may terminate the Firm’s representation
of him at any time.
Client recognizes that, in the event an individual client involved in this representation
exercises his right to employ his own separate counsel, certain acts might require the Firm to

withdraw from its common representation of the remaining individuals. Further, Client
recognizes that forcing such an immediate withdrawal, under some circumstances could cause
severe hardship, potential prejudice, and undue expense to the clients who would otherwise
remain subject to the agreement. Therefore, Client agrees that, absent an actual conflict of
interest in the continued representation of the remaining parties, Client may not demand the
Firm’s withdrawal from that continued representation of the remaining parties.
Further, Client acknowledges that the Firm cannot continue to represent an individual
client if an actual conflict arises with one or more other clients. In such an event, the Client
whose circumstances create a conflict with any other client shall immediately advise the Firm of
the conflict, but will not discuss the specific circumstances with the Firm. Communication of
such a conflict shall be made to Robert Ekstrand personally; and, in the event Robert Ekstrand is
not available, this communication must be made to a current employee of the Firm. Upon
confirmation of that communication, the Firm will immediately withdraw from its representation
of that conflicted client. Further, Client hereby agrees that, if an actual conflict arises and is
asserted, Client shall immediately return all materials, notes or other work product that any
employee of the Firm has provided to him in the course of the representation, and those materials
are not to be shared with any individual at any time. Similarly, if it becomes apparent to the
Firm that an actual conflict exists between Client and other clients in this representation, the
Firm, on its own initiative, will notify the Client of the circumstances, ascertain the accuracy of
them, and, if an actual conflict exists and is not waived by Client, the Firm will immediately
withdraw from its representation of Client. Further, Client agrees not to assert any such conflict
of interest against the Firm or to undertake to disqualify the Firm from its continuing common
representation of the remaining clients subject to this multiple representation.
None of the information obtained by any party hereto as a result of this agreement shall
be disclosed to third parties without the consent of those Members made available in the first
instance information protected by the attorney-client and/or attorney work product privilege.
Modifications of this agreement must be in writing and signed by all parties hereto.
Any party hereto may voluntarily withdraw from this agreement upon giving or express
and written notification to all other parties to this agreement, in which case this agreement shall
no longer be operative as to the withdrawing party, but the agreement shall continue to protect all
communications and information covered by the agreement and disclosed to the withdrawing
party or to the party's counsel upon notification of withdrawal. Immediately upon demand, a
withdrawing party and his counsel shall immediately return all joint defense materials and copies
thereof.
The signatories to this agreement agree that the confidentiality prescribed above will not
become retrospectively inoperative if adversity should subsequently arise among the signatories
(or between any of them), irrespective of any claim that the joint defense privilege may
otherwise become prospectively inoperative by virtue of such claimed adversity.
Client understands and acknowledges that the Firm may enter into Joint Defense
Agreements with counsel for individuals who are also subjects in the same investigation without

obtaining the express prior authorization of Client. At the same time, Client may—and should—
notify the Firm if Client has any objections to entry into such an agreement with counsel for an
individual subject to this investigation and any subsequent proceedings.

By signing this agreement, Client certifies that he has read this agreement, understands it
and agrees to abide by it.

____________________________________
Client Signature

FOR THE FIRM:

____________________________________

EXHIBIT 2
Deposition of David B. Adcock

David Brooks Adcock

January 12, 2012
Durham, NC

1
1

IN THE UNITED STATES DISTRICT COURT

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FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

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EDWARD CARRINGTON, et als.,

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Plaintiffs,

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v.

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DUKE UNIVERSITY, et als.,

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Defendants.

)
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No. 1:08-cv-119

- AND )
)
)
Plaintiffs,
)
) Civil Action No.
v.
) 1:07-CV-00953
)
DUKE UNIVERSITY, et als.,
)
)
Defendants.
)
__________________________________)
RYAN McFADYEN, et als.,

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DEPOSITION OF DAVID BROOKS ADCOCK

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DURHAM, NORTH CAROLINA

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THURSDAY, JANUARY 12, 2012, 9:05 A.M.

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The Deposition of DAVID BROOKS ADCOCK, taken

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pursuant to notice before KAREN K. KIDWELL, a

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Registered Merit Reporter and Notary Public in and

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for the State of North Carolina, on January 12, 2012,

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at Thomas, Ferguson & Mullins, L.L.P., 119 East Main

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Street, Durham, North Carolina, at 9:05 a.m.

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David Brooks Adcock

January 12, 2012
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A.

Typically, we would.

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Q.

Okay.

When you were reviewing

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Ms. Mangum's medical records, was your inquiry

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directed to whether or not Duke provided appropriate

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care or was your inquiry directed to whether or not

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the allegations were credible?

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MR. SUN:

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MR. EKSTRAND:

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MR. SUN:

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Objection.
On what basis?

You asked two questions.

BY MR. EKSTRAND:
Q.

Okay.

When you were looking at Mangum's,

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Ms. Mangum's medical records and reviewing them, were

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you reviewing them to ascertain whether or not Duke

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had provided adequate care to her?

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record reflect --

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MR. SUN:

And let the

Yeah, you can answer that

question.

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THE WITNESS:

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reasons, but that was one of them.

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BY MR. EKSTRAND:

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Q.

Okay.

There was a multitude of

Elaborate on that.

What do you --

what were you looking --

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A.

I can't say that I did it for one reason.

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Q.

I know.

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A.

Adequacy of care was certainly a reason.

With respect to that reason?

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David Brooks Adcock

January 12, 2012
Durham, NC

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Q.

Okay.

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A.

At that point, I'm going to have to defer

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And in what way?

to you.

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MR. EKSTRAND:

I'm sorry.

Just let the

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record reflect that that was a statement made to

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counsel by the witness at the table, and there seems

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to be a pattern here where I've heard no objection,

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and there's a question on the table, and it seems to

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be an invitation to make an objection.

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So we object

to that pattern.

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MR. SUN:

Let me just say that Mr. Adcock

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is an attorney.

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not authorized him to waive the privilege, any

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privilege.

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BY MR. EKSTRAND:

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He is aware that Duke University has

Q.

I'm not asking about any communications,

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A.

What was your question again?

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Q.

Why were you reviewing Ms. Mangum's

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sir.

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medical records for purposes of determining whether

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Duke provided her adequate care?

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A.

I -- as I mentioned, you asked

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specifically about adequacy of care, and I said that

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was certainly one of the reasons, but to further

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characterize that would be a matter that Duke would

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David Brooks Adcock

January 12, 2012
Durham, NC

234
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have to explicitly waive the attorney-client

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privilege for me to answer.

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Q.

Okay.

Well, who is the holder of that

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specific privilege?

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MR. SUN:

Duke University, and

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Duke University has not waived any privilege.

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BY MR. EKSTRAND:

8
9

Q.

Who is the -- who is the person who

communicated what you are not disclosing?

I

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understand that it is somebody who is de facto

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Duke University.

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Who's the person?

MR. SUN:

I'm going to object to that

13

because I didn't understand the question.

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BY MR. EKSTRAND:

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Q.

Who is the person who communicated

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whatever you are not disclosing on the grounds of an

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attorney-client communication?

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please.

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person.?

Sir, I'm over here.

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MR. SUN:

Identify the person,
Please identify the

You can answer that question.

Who is the person?

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THE WITNESS:

I know who the person is

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not.

And the person is not me.

I don't possess the

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privilege.

I have an ethical obligation to honor the

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privilege.

If the privilege is waived, the entity

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David Brooks Adcock

January 12, 2012
Durham, NC

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holding the privilege has to be in the position to

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waive it.

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BY MR. EKSTRAND:

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Q.

I cannot ethically do that.

Your counsel has just said -- sir, your

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counsel has just said, you may answer the question.

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I am not asking you to disclose a communication.

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me make that abundantly clear.

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for you to provide one fact, among several that will

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follow, that will enable us to assess your claim of

Let

I am asking instead

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privilege.

We're entitled to that, and we've been

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entitled to that all day, and frankly, we haven't

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gotten it once.

But this time I'm insisting on it.

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Identify the person who made the

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communication that you are not disclosing.?

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MR. SUN:

So I'll consult --

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THE WITNESS:

Person that made the

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communication -- which communication?

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understand what your question --

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BY MR. EKSTRAND:

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Q.

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correct?

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I don't

privilege; have you not?

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A.

You're not disclosing a communication,
You've asserted the attorney-client

That wasn't the question.

The question --

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the question I thought that you asked was what was

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the basis of my concern as to the adequacy of this

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David Brooks Adcock

January 12, 2012
Durham, NC

236
1

woman's care.

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Q.

Right.

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A.

And I said that I -- I feel like I cannot

4

And you said?

answer that unless instructed.

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MR. EKSTRAND:

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MR. SUN:

And counsel.

If that information was provided

7

to you for the purposes of then providing legal

8

advice, then it would be appropriate for you not to

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answer the question, and I instruct you not to answer

10

in that record.

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THE WITNESS:

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answer that question.

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And so I am not going to

BY MR. EKSTRAND:

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Q.

Okay.

Who is the person who made the

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communication, without telling me what the

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communication was?

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MR. SUN:

I'm going to permit the witness

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to answer as to whether that was a Duke University

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employee or not someone from Duke.

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THE WITNESS:

It was -- it was not -- it

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was a Duke employee to the extent that there was an

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individual whose communication to me caused me

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concern.

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not necessarily have to be such a person, it would

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have been a Duke employee.

If there was such a person and there did

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David Brooks Adcock

January 12, 2012
Durham, NC

237
1
2

BY MR. EKSTRAND:
Q.

I'm sorry.

But could you state that

3

differently, so that I -- I might understand it?

4

really not sure what you mean.

5

A.

I'm

There are circumstances that routinely

6

occur in a clinical setting where those responsible

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for the adequacy of clinical care become concerned

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not because of a communication from a person, but

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because of the facts and circumstances surrounding

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the care.

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know how much clearer I can make it.

12

Q.

That's the nature of medicine.

I don't

Well, you're asserting attorney-client

13

communication privilege, right?

14

asserted here.?

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MR. SUN:

That's what you

I instructed him not to answer

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as to that kind of a privilege, yes.

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MR. EKSTRAND:

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You're asserting the

attorney-client?

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MR. SUN:

I just answered that question.

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I instructed him not to answer to the extent of

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attorney-client privilege, yes.

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25

MR. EKSTRAND:

Okay.

All right.

BY MR. EKSTRAND:
Q.

So who made -- now wait.

take a little, small step.

Let me make --

Attorney-client privilege

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1-800-FOR-DEPO

David Brooks Adcock

January 12, 2012
Durham, NC

238
1

covers communications, correct?

2

MR. SUN:

3

THE WITNESS:

4

You can answer that.
Communications in a number

of forms, yes.

5

Can we agree?

BY MR. EKSTRAND:

6

Q.

Okay.

So what is the identity of the

7

person whose communication you're asserting the

8

privilege to protect?

9
10

MR. SUN:

I'm going to consult with the

witness on a privilege question.

11

(Off-the-record discussion between Counsel

12

Sun and the witness.)

13

MR. SUN:

14

Mr. Adcock can answer that

question.

15

THE WITNESS:

There was no individual who

16

communicated with me that caused sufficient concern

17

for me to request this person's medical record.

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initially reviewed the police reports and from the

19

Duke police reports, and as a consequence of

20

reviewing that document, I decided that it would be

21

appropriate for a number of reasons to review the

22

medical record.

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BY MR. EKSTRAND:

I

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Q.

Okay.

What were those reasons?

25

A.

So there were no -- there was no person

Alderson Reporting Company
1-800-FOR-DEPO

EXHIBIT 3
Deposition of Richard Brodhead

Richard Brodhead

September 20, 2012
Durham, NC
Page 1

1

THE UNITED STATES DISTRICT COURT

2

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

3

- - - - - - - - - - - - - - - - - X

4

EDWARD CARRINGTON, et als.,

:

5

Plaintiffs,

:

Civil Action No.
1:08-cv-119

6

v.

:

7

DUKE UNIVERSITY, et als.,

:

8

Defendants.

9
10

:

- AND -

:

RYAN McFADYEN, et als.,

11

:

Plaintiffs,

:

Civil Action No.
1:07-CV-00953

12

v.

:

13

DUKE UNIVERSITY, et als.,

:

14
15

Defendants.

:

- - - - - - - - - - - - - - - - - X

16
17

Durham, North Carolina

18

Thursday, September 20, 2012

19

Videotaped Deposition of RICHARD BRODHEAD, a

20

witness herein, called for examination by counsel for

21

Plaintiffs in the above-entitled matters, the witness

22

having been duly sworn, taken at 705 Broad Street,

23

Room 203, Durham, North Carolina, at 7:33 a.m. on

24

Thursday, September 20, 2012, and the proceedings

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being taken down by KAREN K. KIDWELL, RMR, CRR.

Alderson Reporting Company
1-800-FOR-DEPO

Richard Brodhead

September 20, 2012
Durham, NC
Page 30

Page 32

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email?
A. No, I did not.
Q. Did you talk to Ryan McFadyen about his
suspension before you talked to the world about his
suspension?
A. No, I didn't.
Q. And within 24 hours, you knew that that
email was a parody, right?
MR. SUN: Objection.
THE WITNESS: I knew that it was a
quotation from a book.
BY MR. EKSTRAND:
Q. Within 24 hours of talking about it to all
those news organizations and the rest of the world,
you knew that it was a parody?
MR. SUN: Asked and answered.
BY MR. EKSTRAND:
Q. Correct?
A. I have answered your question.
Q. Is it correct? Maybe I missed the answer.
I'm just asking you to confirm. You knew within 24
hours that his email was a parody of a book?
MR. SUN: Objection.
THE WITNESS: I came to know that. It
remains true that the email functioned within the
Page 31

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MR. SUN: Objection.
THE WITNESS: I didn't. What I said was
that the email was sickening, and I actually think
the email remains sickening even after it was learned
it was a quotation.
BY MR. EKSTRAND:
Q. We understand. We understand that your
perception is that it was sickening, and I'm asking
you something very different.
A. Okay.
Q. Right. Have you read the book?
A. I have not.
Q. You're an English professor, right?
A. Indeed.
Q. And English professors teach that book,
don't they?
A. Some do. Not me.
Q. Okay. Did you convey the fact that while
you don't, some of your colleagues who teach English
literature for a living teach the book that Ryan was
using as a parody?
A. No.
Q. Did it ever occur to you that maybe you
should give some kind of a correction or a
clarification as soon as you learned that that email
Page 33

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situation. The quotation functioned within the
situation. And to explain that it was a quotation
from a book didn't really terminate that situation.
BY MR. EKSTRAND:
Q. Within 24 hours, you knew that that email
was the parody of a book, yes or no?
MR. SUN: Objection.
THE WITNESS: Yes, I did.
BY MR. EKSTRAND:
Q. How many statements did you make about
that fact?
A. I have no ability to tell you the number.
Q. I've got a guess for you. Let me run zero
by you. Is that true, that you made no statements
about the fact that you incorrectly characterized his
email in those interviews?
MR. SUN: Objection.
THE WITNESS: I don't acknowledge that I
incorrectly characterized his email.
BY MR. EKSTRAND:
Q. Okay. Did you disclose to the world, as
you excoriated Mr. McFadyen, did you disclose: By
the way, this was a parody of a book we teach here at
Duke and some of our students have written reports on
at Duke?

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was a parody of a book?
MR. SUN: Objection.
THE WITNESS: No, it didn't.
BY MR. EKSTRAND:
Q. It didn't? It didn't occur to you, sir?
MR. SUN: Asked and answered.
BY MR. EKSTRAND:
Q. Answer the question. It didn't occur to
you, sir?
MR. SUN: Asked and answered. Move on,
Counsel.
MR. EKSTRAND: Paul, we're not going
to get into this -MR. SUN: He answered the question. Read
the transcript back, Madame Court Reporter.
MR. EKSTRAND: No, we're not going to
waste time reading the transcript. You've got your
objection on the record.
BY MR. EKSTRAND:
Q. It did not occur to you once that you
should go back to the same reporters you spent all
that time talking about Ryan McFadyen with and make a
correction? It didn't occur to you?
A. It did not.
Q. Who is Chauncey Nartey?

9 (Pages 30 to 33)
Alderson Reporting Company
1-800-FOR-DEPO

Richard Brodhead

September 20, 2012
Durham, NC
Page 34

Page 36

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A. Chauncey Nartey is a student who
graduated, and I would take a minute to think.
Q. I don't care when he graduated. He was a
student?
A. Yes.
Q. All right. You know him?
A. I know him a little.
Q. Yeah. How do you know him?
A. I first learned his name because in the
middle of the month of April, I asked Coach Pressler
to come in for a conversation with me. In the course
of that conversation, he told me of a letter he had
received from Chauncey Nartey. This was the first I
ever heard of it. In the letter, the letter
mentioned his daughter in a -- and in the wake of
that, I contacted Chauncey Nartey and asked if he
would come to see me.
Q. Did he come see you?
A. Yes, he did.
Q. What did you all talk about?
A. We talked about the letter he had written.
Q. What did you say?
A. I told him I thought it was a great error
of judgment. I told him that I thought if he -- if
he regretted it, he ought to apologize. And I'm told
Page 35

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family?
A. That's what I interpret it to say.
Q. Who is Janet Lynn?
A. I believe it is Mike Pressler's daughter.
Q. Right. And it doesn't say, "What if it
had happened," does it? Does it?
A. What if it were to happen.
Q. It says, "What if Janet Lynn were next?"
"Next," right?
A. I see those words.
Q. "Next." Not, what if it happened to
someone in your family. What if your daughter were
next? Right?
A. Um-hmm.
Q. Is that sickening to you?
A. I consider it an extremely inappropriate
letter to have written.
Q. Doesn't sicken you?
A. I told you it troubled me.
Q. All right. And the question I asked you
was, how long did you put him on interim suspension?
MR. SUN: Objection. President Brodhead,
I instruct you not to answer that question.
BY MR. EKSTRAND:
Q. We'll come back, and you can answer it.
Page 37

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he wrote a letter of apology.
Q. Okay. All right. How long was he on
interim suspension?
A. He was not on interim suspension.
MR. SUN: Objection.
MR. EKSTRAND: You can have a transcript
and redact it all you want later.
BY MR. EKSTRAND:
Q. Is this his email? Exhibit 1?
(Brodhead 1 was marked for identification.)
THE WITNESS: That's what I was told the
message had been.
BY MR. EKSTRAND:
Q. Which is what?
A. Troubling.
Q. Troubling? What's the message? Translate
it for us. What did you understand the message to
be?
A. Something bad happened to someone else.
What if it had been a member of your own family it
had happened to?
Q. Really? Is that what you understand this
to say?
A. Yes.
Q. If it happened to a member of your own

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You can answer it now or later. How long -- he
wasn't suspended for a single minute, was he?
MR. SUN: President Brodhead, I instruct
you not to answer that question.
BY MR. EKSTRAND:
Q. He was not suspended for a single minute,
was he?
MR. SUN: President Brodhead, I instruct
you not to answer that question.
MR. EKSTRAND: On what basis?
MR. SUN: Federal law.
MR. EKSTRAND: Which one? Which one?
MR. SUN: Federal law.
MR. WEISS: Which one?
MR. SUN: I'm not answering. I'm not
debating the issues with you, Counsel. Move on.
MR. EKSTRAND: We'll be coming back then.
MR. SUN: That will be fine.
BY MR. EKSTRAND:
Q. So after you didn't suspend Mr. Nartey for
a single minute for threatening the coach's daughter,
what else did you do with Chauncey Nartey?
A. Some months later, I did an event. I
think it was in Charlotte, North Carolina.
Q. You brought Chauncey with you?

10 (Pages 34 to 37)
Alderson Reporting Company
1-800-FOR-DEPO