MCFADYEN et al v. DUKE UNIVERSITY et al

Filing 320

RESPONSE in Opposition re #316 MOTION to Compel filed by BRECK ARCHER. Replies due by 12/24/2012. (EKSTRAND, ROBERT)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

RYAN McFADYEN, et al.,
Plaintiffs,
v.
DUKE UNIVERSITY, et al.,
Defendants.

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RESPONSE OPPOSING DUKE’S MOTION TO RE-OPEN
MR. ARCHER’S DEPOSITION
Plaintiffs oppose Duke’s Motion to re-open its deposition of
Mr. Archer [ECF #316] because Mr. Archer has already answered
the question at issue (i.e., whether Mr. Archer had knowledge of any
evidence that Mr. Drummond knew that Plaintiffs’ DukeCard data
had already been produced to law enforcement when Drummond
wrote his June 2, 2006 letter to Plaintiffs regarding the subpoena
seeking the data).

Mr. Archer testified that, while he did not know it at the
time, he later learned that Mr. Drummond knew that his DukeCard
data had been released to the police. Mr. Archer explained that the
source of his information was the transcript of the deposition of
Drummond’s subordinate in the DukeCard office, Roland Gettlife.
In his deposition, Mr. Gettlife revealed that Mr. Drummond knew
that Plaintiffs’ DukeCard data had been given to law enforcement
because Mr. Gettlife told him so.
Duke’s assertion that Mr. Archer’s counsel instructed him
not to answer that question is false. (Archer Dep. 336:16-336:18.)
To the contrary, Mr. Archer’s counsel properly instructed him not
to answer the question to the extent that doing so would reveal his
communications with his counsel or the mental impressions of his
counsel. (Id.)
MS. SMITH: Objection, to the extent that it
would reveal legal theories of counsel, I'd instruct
you not to answer.

MR. SEGARS: You've opened the door by
asking the question, without qualification, on
cross-examination, and it's my contention that
that has waived any privilege.
MS. SMITH: And it's my contention that the
privilege has not been waived.
(Id. 335:16-336:5.)
At that point, of course, Mr. Segars should have allowed
Mr. Archer to provide any response subject to the limitation of
Ms. Smith’s objection. But Mr. Segars did not do so. Mr. Segars
then could have asked Mr. Archer if he was withholding anything
based upon Ms. Smith’s objection. But Mr. Segars chose not to
do that either. Instead, Mr. Segars, in a fit of pique, asserted that
Mr. Archer’s counsel waived her client’s privilege and ended the
deposition:
I believe that what occurred just now was a waiver
of the privilege, at least with respect to his basis of
knowledge about Matt Drummond knowing of the
DukeCard information being given to Durham as of
June 2nd, 2006, because he was asked that unqualified
question, a question to which we routinely receive

attorney-client privilege instructions when we ask
that question. And based on that contention, it's my
position that he needs to answer that question, and as
an additional reason for leaving this deposition held
open, I would mark that. And subject to that, I have no
further questions.
(Id. 336:7-336-19.)
Mr. Segars thereby ended the deposition without giving Mr. Archer
an opportunity to respond to his question.
Because Mr. Segars failed to allow Mr. Archer to answer the
question subject Ms. Smith’s objection, and because Mr. Segars
failed to ask Mr. Archer if he was withholding any information
based upon Ms. Smith’s objection, there is no factual basis to reopen the deposition. Mr. Segars may not re-open Mr. Archer’s
deposition to ask the same question that he refused to give Mr.
Archer an opportunity to answer in the time that he had under
the Rules. Indeed, Mr. Segars had little choice but to end the
deposition when he did: his time was up, as had already reached
the 7-hour limit imposed by the Rules and this Court’s scheduling

order.
In fact, Duke does not contend that it has any reason
to believe that Mr. Archer was consciously withholding any
information based Ms. Smith’s objection, and Mr. Archer’s
attorneys have given Duke every assurance that, if Mr. Segars had
actually allowed Mr. Archer to respond to his question before
terminating the deposition, Mr. Archer would have reported that
he did not have any response beyond what he had already reported
in his testimony and that he was not withholding any information
based upon Ms. Smith’s objection. Finally, Mr. Archer’s counsel
prepared an affidavit to that effect for Mr. Archer to sign.
In short, there is nothing to compel, Mr. Archer’s counsel
have repeatedly reported to Duke’s counsel that there is nothing
to compel, and Mr. Archer’s counsel have even arranged to have a
declaration from Mr. Archer that there is nothing to compel.
CONCLUSION
There is nothing to compel. The motion should be denied.

December 6, 2012

Respectfully submitted by:
/s/ Robert C. Ekstrand
Robert C. Ekstrand, NC Bar #26673
Ekstrand & Ekstrand LLP
811 Ninth Street, Second Floor
Durham, North Carolina 27705
[e-mail]
Tel. [phone]
Fax [phone]
Counsel for Plaintiffs, Ryan McFadyen,
Matthew Wilson, and Breck Archer
/s/ Stefanie A. Smith
Stefanie A. Smith, NC Bar #42345
Ekstrand & Ekstrand LLP
811 Ninth Street, Second Floor
Durham, North Carolina 27705
[e-mail]
Tel. [phone]
Fax [phone]
Counsel for Plaintiffs, Ryan McFadyen,
Matthew Wilson, and Breck Archer

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

RYAN McFADYEN, et al.
Plaintiffs,
v.
DUKE UNIVERSITY, et al.
Defendants.

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1:07-cv-953-JAB-JEP

CERTIFICATE OF SERVICE
On the date electronically stamped below, the foregoing Response
Opposing Duke’s Motion to Re-open Mr. Archer’s Deposition was
filed with the Court’s CM/ECF System, which will send a Notice
of Electronic Filing containing a link to download the filing to
Defendants’ counsel of record, all of whom are registered with the
Court’s CM/ECF System.

Respectfully submitted,
/s/ Robert C. Ekstrand
Robert C. Ekstrand