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)

Case 2:12-mc-00196-JHR Document 18 Filed 10/12/12 Page 1 of 9

PageID #: 1247

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE

RYAN McFADYEN and EDWARD
CARRINGTON,
Plaintiffs
v.
DUKE UNIVERSITY,
Defendant

)
)
)
)
)
)
)
)
)
)

No. 2:12-mc-196-JHR

MEMORANDUM DECISION ON MOTIONS TO COMPEL AND TO QUASH SUBPOENA

Two motions, one to compel and one to quash, have been filed regarding subpoenas for
deposition and to produce documents served in two related foreign actions. The subpoenas,
dated July 9, 2012, were served by Duke University on Dr. Robert David Johnson, a Maine
resident and a non-party to two actions pending in the United States District Court for the Middle
District of North Carolina that gave rise to the discovery sought.

Duke seeks an order

compelling Dr. Johnson to produce certain documents and appear for deposition, and Dr.
Johnson seeks an order quashing the subpoenas. For the reasons that follow, I grant the motion
to compel in part and deny the motion to quash. 1
I. Background
In the underlying actions, former members of the Duke lacrosse team have sued Duke
University and others for their actions or inaction in the spring of 2006 when, in a case of
national notoriety, several Duke lacrosse players had been accused of crimes by a dancer who
1

At oral argument, counsel for both parties took the position that the motions should be decided by this court, rather
than the court in which the underlying actions are pending. See In re Cutting, Misc. No. 09-75-P-JHR, 2009 WL
1291477, at *1 (D. Me. May 7, 2009).

1

Case 2:12-mc-00196-JHR Document 18 Filed 10/12/12 Page 2 of 9

PageID #: 1248

had been hired to perform at a party. The criminal charges resulting from these accusations were
ultimately dismissed. Dr. Johnson and a co-author wrote a book about these events, entitled
Until Proven Innocent, and Dr. Johnson wrote a blog about them, called “Durham-inWonderland,” which he continues to write.
On June 9, 2011, the presiding judge in the North Carolina cases issued an order granting
in part a motion to stay. In the underlying “McFadyen” case, Counts 21 and 24 were not stayed.
Count 21 alleges a breach of contract arising out of the imposition of disciplinary measures
against the student plaintiffs. Count 24 alleges fraudulent misrepresentation in letters regarding
“DukeCard” information2. In the underlying “Carrington” case, Counts 8 (for fraud), 11 (for
constructive fraud), and 19 (for negligent misrepresentation) were not stayed. The court allowed
discovery to proceed only with respect to these counts.

See Order dated June 9, 2011,

McFadyen, et al., v. Duke University, et al., No. 1:07cv953 (Middle District of North Carolina)
(ECF No. 1-2), Order dated June 9, 2011, Carrington, et al. v. Duke University, et al., Docket
No. 1:08CV119 (Middle District of North Carolina) (ECF No. 1-4).
The deposition subpoenas served on Dr. Johnson by Duke set a deposition date of August
6, 2012, and the document subpoenas set a date for production of 10 or 11 categories of
documents of July 30, 2012. The document subpoenas include one page entitled “Introduction,”
three pages of definitions, and a page of instructions. The following categories of documents
were requested:
1. all notes from interviews with named individuals “during which any Information
Concerning Pending Claims was discussed.”
2. all “discovery files” as that term was used in Dr. Johnson’s September 1, 2008, blog
titled “Paperback Source Notes” that contain any “Information Concerning Pending Claims;”

2

The DukeCard is the University’s electronic student identification card.

2

Case 2:12-mc-00196-JHR Document 18 Filed 10/12/12 Page 3 of 9

PageID #: 1249

3. all correspondence with Robert C. Ekstrand, Stefanie Sparks Smith, or any other
attorney or employee of Ekstrand & Ekstrand LLP 3 “that contain any Information Concerning
Pending Claims;”
4. in the “Carrington” case subpoena only, all correspondence with Charles J. Cooper,
Peter A. Patterson, David H. Thompson, Nichole J. Moss, or any other attorney or employee of
Cooper & Kirk, PCCL, that contain any Information Concerning Pending Claims;
5. all correspondence with any Duke lacrosse player that contains any Information
Concerning Pending Claims;
6. all correspondence with any Duke employee that contains any Information
Concerning Pending Claims;
7. all correspondence with any Duke alumnus that contains any Information Concerning
Pending Claims;
8. all documents “that concern, discuss, or reflect any payments made to a Duke
Lacrosse Player for that person’s time or information relating to the Lacrosse Incident;”
9. all documents “that concern, discuss, or reflect any payments made to Robert C.
Ekstrand, Stefanie Sparks Smith, or any other attorney or employee of Ekstrand & Ekstrand for
that person’s time or information relating to the Lacrosse Incident”;
10. all policies or contractual agreements “that concern, discuss, or reflect the
management of” Dr. Johnson’s Duke-related website; and
11. all policies or contractual agreements that concern, discuss, or reflect the removal of
comments posed on” Dr. Johnson’s Duke-related website.
Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in
a Civil Action (ECF No. 1-6), “Carrington” Exh. A at 6-8 and “McFadyen” Exh. A at 6-7..
The subpoenas define “Information Concerning Pending Claims” to include the following
subjects:
(a) the disclosure of DukeCard Data to the Durham Police department, the subsequent
subpoena that was issued to Matthew Drummond on May 31, 2006, seeking production of
DukeCard Data by Duke, or the responses to that subpoena;

3

Ekstrand and Smith represented many of the Duke lacrosse players during the period when charges against them
were pending and/or being investigated.

3

Case 2:12-mc-00196-JHR Document 18 Filed 10/12/12 Page 4 of 9

PageID #: 1250

(b) in the “Carrington” case subpoena only, communications between Tallman Trask and
the co-captains of the 2005-2006 Duke men’s lacrosse team on March 24, 2006, or any
subsequent discussions regarding those Communications;
(c) in the “Carrington” case subpoena only, communications between Richard Brodhead
and the co-captains of the 2005-2006 Duke men’s lacrosse team on March 28, 2006, or any
subsequent discussions regarding those communications;
(d) in the “Carrington” case subpoena only, communications between Suzanne Wasiolek
and one or more of the co-captains on March 15, 2006, and thereafter or any subsequent
discussions regarding those Communications; or the job performance of Richard Brodhead,
Robert Dean, Matthew Drummond, Aaron Graves, Kate Hendricks, Tallman Trask, and Suzanne
Wasiolek;
(e) in the “McFadyen” case subpoena only, information regarding the disciplinary
proceedings concerning Breck Archer, the disciplinary proceedings concerning Matthew Wilson,
or the interim suspension of Ryan McFadyen.
Id., “Carrington” Exh. A at 4, ¶ 11 and “McFadyen” Exh. A at 4, ¶ 11.
II. Discussion
A. The Subpoena for Documents
Following discussion and negotiation by the lawyers involved, Duke has agreed to limit
its demand for documents to non-privileged communications with “publicly-acknowledged
sources,” Motion to Compel Robert David Johnson’s Compliance with Subpoenas (“Motion to
Compel”) (ECF No. 1) at 4, and to further limit its inquiry to the topic areas of (a) events
occurring between March 13, 2006, and March 28, 2006, (b) the subpoena for DukeCard
information served by the Durham, North Carolina police, (c) Duke’s prior release of DukeCard
information to the Durham police, and (d) any disciplinary action taken against a plaintiff in the
McFadyen case. Id. at 10 n.4.4 My discussion addresses only this narrowed scope of requests.

4

The footnote also says that Duke will limit its requests to written communications between Dr. Johnson and, inter
alia, the players’ parents. There was no request for communications between Dr. Johnson and the parents in the
initial subpoena. I will not order Dr. Johnson to produce any documents not reasonably within the scope of the
initial subpoena.

4

Case 2:12-mc-00196-JHR Document 18 Filed 10/12/12 Page 5 of 9

PageID #: 1251

At oral argument, counsel appeared to agree that this dispute is controlled by the First
Circuit’s decision in Cusumano v. Microsoft Corp., 162 F.3d 708 (1st Cir. 1998), although they
disagree sharply about how its teachings should be applied here. In that case, the defendant
sought the notes, recordings, and transcripts of a third-party author and college professor, as well
as his correspondence, with 40 employees of its primary competitor, for possible use in its
defense in an antitrust action. Id. at 711. The court from which the subpoena had issued
declined to compel the production of this material.
On appeal, the First Circuit held that such individuals “are within a group whose prepublication research merits a modicum of protection.” Id. at 715. It then set out the applicable
test as follows:
[W]hen a subpoena seeks divulgement of confidential information
compiled by a journalist or academic researcher in anticipation of
publication, courts must apply a balancing test. This test contemplates
consideration of a myriad of factors, often uniquely drawn out of the
factual circumstances of the particular case. Each party comes to this
test holding a burden. Initially, the movant must make a prima facie
showing that his claim of need and relevance is not frivolous. Upon such
a showing, the burden shifts to the objector to demonstrate the basis for
withholding the information. The court then must place those factors
that relate to the movant’s need for the information on one pan of the
scales and those that reflect the objector’s interest in confidentiality and
the potential injury to the free flow of information that disclosure
portends on the opposite pan.
Id. at 716 (citations omitted).
Here, Duke has shown that it is likely that there exist more communications between Dr.
Johnson and the plaintiffs than the 70 emails that Duke has been able to locate to date, and that
the plaintiffs have not been able to produce them when asked to do so. See, e.g., [Partial
Transcript of] Videotaped Deposition of Anthony McDevitt (ECF No. 2-5) at 314; [Partial
Transcript of] Videotaped Deposition of Edward C. Carrington, VII (ECF No. 2-6) at 246-47;

5

Case 2:12-mc-00196-JHR Document 18 Filed 10/12/12 Page 6 of 9

PageID #: 1252

[Partial Transcript of] Videotaped Deposition of John Jennison (ECF No. 2-7) at 236; and Letter
dated September 10, 2012, from Jason F. Trumpbour to Tom Segars, Esq. (ECF No. 13-4).5 The
relevance of such communications is fairly obvious: Dr. Johnson wrote about the very incidents
that are at issue in the underlying actions. Duke’s need for such information is also apparent:
Duke is defending itself against the claims of the same individuals who communicated with Dr.
Johnson about the events at issue. Unlike the moving party in Cusumano, 162 F.3d at 716-17,
Duke has taken the time and made the effort to try to obtain from other sources the information
that it seeks from Dr. Johnson. Thus, Duke has made the necessary prima facie showing under
Cusumano.6
Dr. Johnson has aimed most of his fire at these initial requirements. However, with
respect to his burden to demonstrate a basis for withholding the information, he has adequately
shown that he and the plaintiffs in the underlying actions had an expectation of privacy, see
Affidavit of Robert David Johnson (“Johnson Aff.”) (ECF No. 5-1) ¶¶ 8-10, 12-16. Yet, that is
not enough,7 particularly where, as here, the plaintiffs are themselves the parties who stand to
benefit from Dr. Johnson’s invocation of the shield of privacy while pursuing claims against
Duke based upon the very events about which they spoke with Dr. Johnson. Contrary to Dr.
Johnson’s argument, I do not see how compelling him, under these circumstances, to reveal what
the plaintiffs told him will chill his efforts to obtain information about the Duke lacrosse scandal
5

Duke asserts that “[t]he Carrington Plaintiffs certified that their responses to all ripe discovery requests are
complete.” Motion at 8 n.3. They have not provided the court with the document cited in support of this assertion,
“Carrington DE 256,” id., but there does not appear to be a dispute on this point, or on its additional assertion that
the deadline for the McFadyen plaintiffs to do so “has lapsed.”
6
Duke’s proffered interest in possible impeachment of the plaintiff lacrosse players’ testimony, standing alone, is
not enough to justify production. See In re Bextra & Celebrex Marketing Sales Practices & Product Liability Litig.,
249 F.R.D. 8, 12 (D. Mass. 2008). In addition, its professed concern for “testing” the plaintiffs’ claims of attorneyclient privilege should be addressed to the trial judge.
7
I note that much of Dr. Johnson’s concern is directed at Duke employees or those who “had business or other
professional dealings with Duke or the city of Durham that they wanted to avoid jeopardizing.” Johnson Aff. ¶¶ 1213. Duke’s request has now been limited to communications with the plaintiffs and their attorneys, so these
concerns are no longer relevant.

6

Case 2:12-mc-00196-JHR Document 18 Filed 10/12/12 Page 7 of 9

PageID #: 1253

from any other individuals. People who bring suit must expect that their prior statements that are
relevant to their claims cannot be hidden from those whom they are suing.
In my view, the Cusumano balance tips in favor of Duke under the circumstances of this
case. As narrowed, Duke’s request for communications between the plaintiffs and/or their
lawyers and Dr. Johnson, concerning a distinct period of time, and limited to three discrete
issues, does not harm the plaintiffs’ expectations of privacy, rendered ineffectual by their
decisions to bring the underlying lawsuits, and does not affect the free flow of information
sufficiently to require that the modified subpoena be quashed.
When information is sought by subpoena from a non-party, like Dr. Johnson here, the
court must also be concerned for the burden “thrust upon” those third parties. Cusumano, 162
F.3d at 717. In this case, however, Dr. Johnson has made no attempt to show that compliance
with the modified request will be unduly burdensome. Indeed, he says that he no longer has his
handwritten notes from his interviews of any Duke students or former students. Johnson Aff.
¶¶ 26, 28. Notably, he has not contended that he no longer has access to emails that would be
responsive to the subpoenas.
Given the modified and narrowed scope of the document subpoenas, I see no need for the
privilege log requested by Duke. Memorandum of Law in Response to Robert David Johnson’s
Motion to Quash Subpoenas (ECF No. 11-1) at 4-5.
B. The Deposition Subpoenas
Dr. Johnson devotes little argument to his motion to quash the subpoenas for his
deposition. He contends that the deposition subpoenas should be quashed “[f]or the same
reasons of privilege and respect for the First Amendment.”

Robert David Johnson’s

Consolidated Opposition to Duke University’s Motion to Compel Compliance with Subpoenas

7

Case 2:12-mc-00196-JHR Document 18 Filed 10/12/12 Page 8 of 9

PageID #: 1254

and Cross-Motion to Quash Subpoenas Pursuant to Rule 45(C)(3) (“Opposition”) (ECF No. 5) at
10. I have addressed Dr. Johnson’s First Amendment concerns in the context of the subpoenas
for documents and have concluded that those concerns do not require the quashing of the
documentary subpoenas, as now limited in scope.
The only other argument raised in support of his motion to quash the deposition
subpoenas by Dr. Johnson is an assertion that “the prior deposition taken from Dr. Johnson
[presumably by Duke] is replete with examples of improper questioning of a reporter’s editorial
judgments and thought processes.”

Id.

Such questions would not be appropriate in any

deposition of Dr. Johnson taken at this time, because they are well beyond the limited scope of
discovery allowed by the trial court in North Carolina, as further voluntarily limited by Duke
herein. Should such questions be posed, and should the questioner insist upon answers, or seek
to prolong the deposition by asking other inappropriate questions, Dr. Johnson and his attorney
have available the same remedy available to all deponents in federal lawsuits: contacting the
court to request a remedial order, even as promptly as during a recess of the deposition.
Dr. Johnson has not made the necessary case for quashing the subpoenas for his
deposition.

See, e.g., M.Y. v. Danly, Inc., Civil Nos. 09-108-P-H, 10-308-P-H, 2010 WL

4569852, at *1 (D. Me. Nov. 3, 2010).
III. Conclusion
For the foregoing reasons, Duke University’s motion to compel compliance with its
subpoenas directed to Dr. Robert David Johnson is GRANTED IN PART: Dr. Johnson shall
provide all communications between him and the named plaintiffs in the underlying actions or
between him and the attorneys who represented those plaintiffs at the relevant time, limited to
the time period and issues set forth in footnote 4 on page 10 of Duke’s motion to compel (ECF

8

Case 2:12-mc-00196-JHR Document 18 Filed 10/12/12 Page 9 of 9

PageID #: 1255

No. 1), and Dr. Johnson shall appear for deposition at a mutually agreeable time and place. The
motion to compel is otherwise DENIED. Dr. Johnson’s motion to quash the subpoenas is
DENIED.

Dated this 12th day of October, 2012.

/s/ John H. Rich III
John H. Rich III
United States Magistrate Judge

9