MCFADYEN et al v. DUKE UNIVERSITY et al
Filing
317
BRIEF re #316 MOTION to Compel by Defendant DUKE UNIVERSITY filed by DUKE UNIVERSITY. (Attachments: #1 Exhibit A - Excerpts from Deposition of Breck Archer, #2 Exhibit B - 6/11/12 email from Smith to Segars, #3 Exhibit C - 7/25/12 email from Segars to Smith, #4 Exhibit D - 8/1/12 email from Smith to Segars, #5 Exhibit E - 10/3/12 email from Smith to Falcone, #6 Exhibit F - Draft Affidavit of Breck Archer, #7 Exhibit G - 3/13/12 Letter from Falcone to Ekstrand, #8 Exhibit H - 11/9/12 email from Falcone to Smith, #9 Exhibit I - 11/9/12 email from Smith to Falcone)(SEGARS, THOMAS)
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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
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No. 1:07-CV-00953
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RYAN MCFADYEN, et al.,
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Plaintiffs,
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vs.
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DUKE UNIVERSITY, et al., )
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Defendants.
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__________________________/
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*** ATTORNEYS' EYES ONLY ***
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VIDEOTAPED DEPOSITION OF BRECK BERNARD ARCHER
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(Taken by Defendants)
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Durham, North Carolina
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Thursday, April 19th, 2012
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Reported in Stenotype by
Sophie Brock, RPR, CRR
Transcript produced by computer-aided transcription
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A.
Uhm, just from word of mouth, theories that
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it was released through a Duke police officer to -- it
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was Sergeant Smith -- to, like, an IT -- an IT guy in
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the DukeCard office.
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ID guy -- I think it was Mr. Gettlief -- and it was
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taken from Mr. Gettlief to Sergeant Smith, and from
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there it went to the Durham Police Department.
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Q.
Basically, it came through the
As of June 2nd, 2006, do you have any reason
to believe that Matthew Drummond knew that Sergeant
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Smith had delivered that DukeCard information to
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Durham?
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A.
Uhm, I'm not sure.
I mean, I believe it
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was -- I believe information was already released, but
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I'm not -- I really ...
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Q.
Do you know someone named Kate Hendricks?
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A.
Yes.
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Q.
Okay, who is Kate Hendricks?
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A.
She was a legal -- like, a legal counsel for
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the university.
Q.
Okay.
MR. SEGARS:
We're going to mark the
next document as Exhibit 36.
(EXHIBIT NUMBER 36 WAS MARKED FOR IDENTIFICATION)
THE WITNESS:
Thanks.
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I think it should be reopened for.
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MS. SMITH:
depositions are supposed to be a total of seven hours?
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MR. SEGARS:
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MS. SMITH:
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You recognize that
I understand that.
Okay.
We're just going to take two minutes to see
if we have anything.
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MR. SEGARS:
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THE VIDEOGRAPHER:
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The tape has stopped.
(RECESS TAKEN FROM 7:30 P.M. TO 7:39 P.M.)
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THE VIDEOGRAPHER:
Going back on record.
The time on the monitor is 7:39.
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Going off record.
The time on the monitor is 7:30.
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Okay.
MS. SMITH:
Please begin.
Mr. Archer, just a couple of
questions.
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EXAMINATION
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BY MS. SMITH:
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Q.
Were you convicted of trespassing?
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A.
No.
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Q.
What is the disposition of that charge?
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A.
It's dismissed.
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Q.
And also, if you could turn to
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Exhibit No. 35.
A.
I'm sorry.
There we go.
Got it.
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Q.
In the examination, you were asked questions
about this document?
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A.
Yes, ma'am.
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Q.
At the time of the motion to quash the
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subpoena, did you have knowledge that Matthew Drummond
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knew that the DukeCards had already been given to the
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Durham police?
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A.
No.
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Q.
What do you know about that since --
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A.
I know that -- I know that at the time that
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he wrote this letter, he'd already known that his
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assistant had given that information to the police.
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Q.
And what's your source of that information?
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A.
Just basic -- uh, just rumors, talking;
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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,
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rum -- obviously rumors from the deposition.
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deposition was the source, but ...
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MS. SMITH:
The
No more further questions
from us at this time.
MR. SEGARS:
Some short redirect.
EXAMINATION
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Q.
Did you listen to any part of an audio file
of Mr. Gettlief's deposition?
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A.
I don't think so.
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Q.
Do you know anything about the content of the
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voicemail that you described in your testimony today?
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MS. SMITH:
answered.
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Objection, asked and
THE WITNESS:
It's the only thing
I know, what I said before.
BY MR. SEGARS:
Q.
Other than what you know from the testimony
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of Mr. Gettlief, do you know of any other facts that
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support your contention that as of June 2nd, 2006,
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Mr. Drummond knew that Sergeant Smith had turned over
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DukeCard information to Durham?
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MS. SMITH:
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Objection.
To the extent that it would reveal legal
theories of counsel, I'd instruct you not to answer.
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THE WITNESS:
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there's theories within counsel, but ...
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BY MR. SEGARS:
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Q.
It's the -- I mean,
Okay, and I'd like to know what they are.
MS. SMITH:
Objection.
You can't ask
about theories of counsel.
MR. SEGARS:
You've opened the door by
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asking the question, without qualification, on
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cross-examination, and it's my contention that that
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has waived any privilege --
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MS. SMITH:
And it's my contention that
the privilege has not been waived.
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MR. SEGARS:
Very well.
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I -- I believe that what occurred just now
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was a waiver of the privilege, at least with respect
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to his basis of knowledge about Matt Drummond knowing
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of the DukeCard information being given to Durham as
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of June 2nd, 2006, because he was asked that
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unqualified question, a question to which we routinely
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receive attorney-client privilege instructions when we
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ask that question.
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my position that he needs to answer that question, and
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as an additional reason for leaving this deposition
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held open, I would mark that.
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And based on that contention, it's
And subject to that, I have no further
questions.
MS. SMITH:
And I would assert that we
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are making privilege objections based on work product
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and attorney-client communications.
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that are not legal theories or interpretation of
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facts, he can very well answer the question.
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do not think that any privilege was waived.
If he has facts
And we
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