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