MCFADYEN et al v. DUKE UNIVERSITY et al

Filing 316

MOTION to Compel by DUKE UNIVERSITY. (SEGARS, THOMAS)

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.,

DUKE’S MOTION TO RE-OPEN
THE DEPOSITION OF
PLAINTIFF ARCHER AND
COMPEL ANSWERS TO
QUESTIONS PROPOUNDED BY
COUNSEL

Defendants.

Defendant (“Duke”) by and through counsel, pursuant to Rule 37(a) of the
Federal Rules of Civil Procedure, respectfully moves this Court to enter an order
re-opening the deposition of Plaintiff Breck Archer and requiring him to answer
the questions his attorney instructed him not to answer. Alternatively, Duke seeks
an order compelling the production of the affidavit that Mr. Archer agreed to
provide after the parties conferred about this dispute. In either case, Duke
respectfully requests the Court grant costs associated with this Motion.
In support of this Motion, Duke states as follows:
1.

On 20 April 2012, Duke deposed Mr. Archer. (See 20 April 2012

Deposition of Breck Archer, attached to the brief as Exhibit A (selected portions of

the deposition due to the narrow issue before the Court1))
2.

In its Order on Duke’s motion to dismiss, this Court noted “[i]t will

ultimately be Plaintiffs’ burden to prove all of the elements of this claim, including
that Drummond was aware that the Duke Card reports had previously been
provided to the Durham police. . . .” [DE 186 at 174]. Duke asked Mr. Archer
specific questions as to Defendant Drummond’s knowledge of the prior release of
DukeCard data. Mr. Archer had no responsive information. (See Ex. A at 318)
3.

Following the completion of Duke’s counsel’s questions, counsel for

Mr. Archer stated, “We’re just going to take two minutes to see if we have
anything.” (Ex. A at 330) After conferring with Mr. Archer in private, counsel for
Mr. Archer began her examination of Mr. Archer. (Ex. A at 331)
4.

As part of this examination, counsel for Mr. Archer asked the same

questions Duke’s counsel had asked previously regarding Defendant Drummond’s
knowledge of the prior release of DukeCard data, but now Mr. Archer had
responsive information:
Q. At the time of the motion to quash the subpoena, did you have
knowledge that Matthew Drummond knew that the DukeCards had already
been given to the Durham police?
A. No.
1

Some portions of the deposition have been designated as confidential.
Should the Court wish to examine the entire transcript, Duke would be able to
provide the entire transcript under seal.
2

Q. What do you know about that since –
A. I know that -- I know that at the time that he wrote this letter, he'd
already known that his assistant had given that information to the police.
Q. And what's your source of that information?
A. Just basic -- uh, just rumors, talking; I mean, just heard it.
Q. Are you aware that Mr. Gettlief has been deposed?
A. Yes. It's -- I'm sorry -- well, I mean, rum -- obviously rumors from the
deposition. The deposition was the source, but . . .
(Ex. A at 331)
5.

In a final examination, Duke questioned Mr. Archer on this new

information and asked “[o]ther than what you know from the testimony of Mr.
Gettlife, do you know of any other facts that support your contention that as of
June 2nd, 2006, Mr. Drummond knew that Sergeant Smith had turned over
DukeCard information to Durham?” (Ex. A at 335-36) Mr. Archer’s counsel then
instructed him not to answer the question “[t]o the extent that it would reveal legal
theories of counsel.” (Id.) Mr. Archer responded, “It’s the – I mean, there’s
theories within counsel, but …” (Id.)
6.

When Duke’s counsel asked Mr. Archer what those theories were,

counsel for Mr. Archer objected and instructed Mr. Archer not to answer the
question. Mr. Archer followed that instruction. (See Ex. A at 336.)

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7.

In accordance with Fed. R. Civ. P. 37(a)(1), the undersigned counsel

for Duke certifies that they conferred in good faith with Mr. Archer’s counsel in an
effort to resolve this discovery dispute prior to filing this Motion. Specifically,
counsel conferred by telephone conference on 11 May 2012, and then by continued
e-mail communication after that time, as described below. Counsel for Mr. Archer
rejected the request to re-open Mr. Archer’s deposition to answer the questions
identified above.
8.

Through the meet and confer process, however, the parties agreed that

Mr. Archer would provide an affidavit regarding the extent of his knowledge of
these issues as part of a resolution of this discovery dispute. (See 11 June 2012 Email from Stefanie Smith to Tom Segars, attached to the brief as Exhibit B)
9.

On 25 July 2012, Duke’s counsel inquired about the status of the

affidavit. (See 25 July 2012 E-mail from Tom Segars to Stefanie Smith, attached
to the brief as Exhibit C) On 1 August 2012, Mr. Archer’s counsel stated that she
had “been in contact with Breck and he has the affidavit to sign and send.” (See 1
August 2012 E-mail from Stefanie Smith to Tom Segars, attached to the brief as
Exhibit D)
10.

On 21 September 2012, discovery closed and Mr. Archer had not yet

provided his affidavit. Duke sought and received multiple extensions of time for
Mr. Archer to provide his affidavit, as agreed. [See DE 296, 298, 299, 301]
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11.

Mr. Archer did not provide his affidavit during these extensions of

time. Duke’s counsel reached out to Plaintiffs’ counsel regarding a potential meet
and confer in advance of filing a motion to compel. However, at that time, Mr.
Archer’s counsel stated that:
[A]fter some research the past week, we were able to find out that the reason
we’ve had so much difficulty getting in touch with Breck the past couple of
months is because he has been deployed to some type of intense training on
Mount Fuji in Japan. While he is there, he has no access to internet, etc. We
understand that Breck will be returning to his home station in Okinoa [sic]
this month. At that time, we will finally be able to communicate and
coordinate with Breck.
(3 October 2012 E-mail from Stefanie Smith to Jeremy Falcone, attached to the
brief as Exhibit E) Accordingly, Duke sought a further extension of the discovery
period through and including 31 October 2012, to allow Mr. Archer to finalize his
affidavit. [DE 302] That motion remains outstanding.
12.

Mr. Archer has not yet provided his affidavit. Having not heard from

Mr. Archer’s counsel, on 9 November 2012, Duke’s counsel inquired as to the
status and indicated that a motion to compel would be forthcoming if the affidavit
was not provided. (9 November 2012 E-mail from Jeremy Falcone to Stefanie
Smith, attached to the brief as Exhibit H) Mr. Archer’s counsel replied that it had
been and continued to “make efforts to contact and communicate with Mr.
Archer,” but that Duke could “choose to do whatever [it] think[s] [it] should do.”
(9 November 2012 E-mail from Stefanie Smith to Jeremy Falcone, attached to the
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brief as Exhibit I)
13.

Given Mr. Archer’s failure to provide the affidavit after nearly six

months, Duke believes it is now appropriate to move forward with this Motion.
14.

Accordingly, as more fully explained in Duke’s brief

contemporaneously filed with this Motion, Duke respectfully requests that the
Court re-open the deposition of Mr. Archer. Alternatively, Duke seeks an order
compelling Mr. Archer to produce the signed affidavit. In either case, the Duke
seeks its costs in connection with this Motion and the re-opening of the Archer
deposition.
WHEREFORE, Duke respectfully requests that the Court enter an Order
compelling the re-opening of Breck Archer’s deposition and requiring him to
answer the questions his attorney instructed him not to answer, or, in the
alternative, compelling Mr. Archer to complete and return the affidavit he agreed
to provide. Duke requests that the Court enter an Order awarding Duke its costs in
bringing this Motion.

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This the 12th day of November, 2012.
/s/ Thomas H. Segars
Paul K. Sun, Jr.
N.C. State Bar No. 16847
Email: [e-mail]
Thomas H. Segars
N.C. State Bar No. 29433
Email: [e-mail]
Jeremy M. Falcone
N.C. State Bar No. 36182
Email: [e-mail]
Ellis & Winters LLP
1100 Crescent Green, Suite 200
Cary, North Carolina 27518
Telephone: [phone]
Facsimile: [phone]
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

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CERTIFICATE OF SERVICE
I hereby certify that on November 12, 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 12th day of November, 2012.

/s/ Thomas H. Segars
Thomas H. Segars
N.C. State Bar No. 29433
Email: [e-mail]
Ellis & Winters LLP
1100 Crescent Green, Suite 200
Cary, North Carolina 27518
Telephone: [phone]
Facsimile: [phone]
Counsel for Duke