MCFADYEN et al v. DUKE UNIVERSITY et al

Filing 318

Amended CONSENT MOTION for Leave to Take Limited Discovery From Dr. Robert David "KC" Johnson Outside of Discovery Period filed by DUKE UNIVERSITY. (Attachments: #1 Text of Proposed Order, #2 Exhibit A - Document Subpoena to KC Johnson, #3 Exhibit B - Deposition Subpoena to KC Johnson, #4 Exhibit C - Judge Rich's October 12 Order, #5 Exhibit D - Civil Docket Report 2:12-mc-00196-JHR District of Maine) (SEGARS, THOMAS) Modified on 11/15/2012 to reflect correct document title. (Sheets, Jamie)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
CIVIL ACTION NUMBER 1:07-CV-00953-JAB-JEP
RYAN MCFADYEN, et al.,
Plaintiffs,
v.
DUKE UNIVERSITY, et al.,

FIRST AMENDED CONSENT
MOTION FOR LEAVE TO TAKE
LIMITED DISCOVERY FROM
DR. ROBERT DAVID “KC”
JOHNSON OUTSIDE OF
DISCOVERY PERIOD

Defendants.

Duke University, by and through counsel, with the consent of Plaintiffs and
pursuant to the Rule 6(b) of the Federal Rules of Civil Procedure, Local Rule 6.1,
and the Initial Pretrial Order [Dkt. No. 244], respectfully moves for an order
extending the discovery period through and including 31 December 2012, solely
for the purpose of permitting Duke to take discovery from third party Dr. Robert
David “KC” Johnson, in the event that Dr. Johnson’s objections to an order
permitting that discovery by the United States District Court for the District of
Maine are overruled. A proposed order accompanies this Motion.
In support of this Motion, Duke states as follows:
1.

Pursuant to this Court’s Initial Pretrial Order [Dkt. No. 244], fact

discovery on Counts 21 and 24 of Plaintiffs’ Complaint was to be completed by 21
September 2012.

2.

On 9 July 2012, after first conferring with Dr. Johnson about his

schedule and availability, Duke issued two subpoenas in this matter to Dr. Johnson
– one seeking Dr. Johnson’s production of certain documents by 30 July 2012
(attached as Exhibit A), and another setting Dr. Johnson’s deposition for 6 August
2012 (attached as Exhibit B). In accordance with Federal Rule of Civil Procedure
45(a)(2), both subpoenas were issued from the United States District Court for the
District of Maine, the judicial district in which Dr. Johnson resides.
3.

Following issuance of the subpoenas, Duke voluntarily extended Dr.

Johnson’s time for compliance to enable him to obtain counsel. Dr. Johnson
retained counsel, and his counsel objected to the subpoenas on Dr. Johnson’s
behalf on 7 August 2012.
4.

Over the following weeks, Duke conferred with Dr. Johnson’s counsel

on several occasions, offering to narrow the scope of its document subpoena and
proposing multiple compromises to address Dr. Johnson’s concerns. Dr. Johnson
refused to produce any documents or to appear for a deposition.
5.

On 17 September 2012, before the close of fact discovery, Duke filed

a motion to compel Dr. Johnson’s compliance with the subpoenas in the United
States District Court for the District of Maine. With agreement of Dr. Johnson’s
counsel, Duke also sought to expedite briefing and consideration of the motion.
On 21September 2012, Dr. Johnson, through counsel, filed both a response to
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Duke’s motion to compel and a motion to quash Duke’s subpoenas.
6.

On 4 October 2012, the Honorable John H. Rich III of the United

States District Court for the District of Maine heard oral argument on Duke’s
motion to compel Dr. Johnson’s compliance with the subpoenas and on Dr.
Johnson’s motion to quash Duke’s subpoenas.
7.

On 12 October 2012, Judge Rich entered a Memorandum Decision on

Motions to Compel and to Quash Subpoenas (attached as Exhibit C). Judge Rich
granted in part Duke’s motion to compel Dr. Johnson’s compliance with the
subpoenas and denied Dr. Johnson’s motion to quash the subpoenas.
8.

On 16 October 2012, Duke moved for an extension of time through 15

November 2012 to complete this discovery from Dr. Johnson [Dkt. 306].
9.

On 26 October 2012, Dr. Johnson filed an objection to Judge Rich’s

Memorandum Decision on Motions to Compel and to Quash Subpoena. Duke
filed its response to Dr. Johnson’s objections on 13 November 2012. A copy of the
docket from the Maine proceeding is attached hereto as Exhibit D.
10.

In light of Dr. Johnson’s objections to Judge Rich’s order compelling

Dr. Johnson’s compliance with Duke’s subpoenas, Duke’s original request to
extend the discovery period through and including 15 November 2012 is likely
insufficient to permit Duke to take the requested discovery.

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11.

Therefore, Duke seeks leave to extend the discovery period through

31 December 2012 in order that it might take the requested discovery from Dr.
Johnson in the event Dr. Johnson’s objections to Judge Rich’s order permitting this
discovery are overruled.
12.

Duke respectfully submits that good cause for permitting this limited

purpose extension of the discovery deadline exists and that Duke’s failure to obtain
discovery from Dr. Johnson prior to 21 September 2012 was, under the
circumstances, excusable. See Fed. R. Civ. P. 6(b)(1)(B). The good cause for
taking discovery from Dr. Johnson was argued to Judge Rich and is set forth in
Judge Rich’s Memorandum Decision. See Ex. C. Duke issued its subpoenas and
set dates for compliance well in advance of the 21 September 2012 deadline to
complete discovery as set by this Court. Dr. Johnson refused to comply with
subpoenas issued on 9 July 2012 and, following weeks of negotiation, declined
several compromise offers from Duke to limit the scope of its initial requests.
Duke thus could not obtain fact discovery from Dr. Johnson without a court order
compelling his compliance with the subpoenas. Duke moved to compel Dr.
Johnson’s compliance before the discovery deadline passed and endeavored to
expedite the briefing and hearing schedule.

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13.

Allowing Duke to take discovery from Dr. Johnson will not delay this

matter or otherwise impede the Court’s schedule. Duke has already moved to toll
the deadline for the filing of dispositive motions pending the resolution of
discovery motions currently before this Court [Dkt. No. 304], including the
“Motion for a Protective Order re: Duke’s Subpoenas to Take the Deposition of
Plaintiffs’ Litigation Counsel” [Dkt. No. 294], and completion of any discovery
allowed as a result of the Court’s resolution of such motions. Further, because
discovery has only proceeded on a limited number of the overall claims because of
the pending appeal by some of the defendants to this action, no trial date has been
set.
14.

This Motion is brought in good faith and not for purposes of delay.

15.

Plaintiffs, through counsel, have confirmed their consent to this

motion.
WHEREFORE, Duke respectfully requests that the Court enter an Order
extending the discovery period through and including 31 December 2012, solely
for the purpose of permitting Duke to take discovery from Dr. Johnson, in the
event it is permitted by the United States District Court for the District of Maine.

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This the 13th 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]
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 University

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CERTIFICATE OF SERVICE
I hereby certify that 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 13th 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 University