MCFADYEN et al v. DUKE UNIVERSITY et al

Filing 325

REPLY, filed by Defendant DUKE UNIVERSITY, to Response to #316 MOTION to Compel filed by DUKE UNIVERSITY. (Attachments: #1 Exhibit A - Unpublished Case 2010 WL 1667285, #2 Exhibit B - Gettliffe Deposition Excerpts, #3 Exhibit C - Drummond Deposition Excerpts, #4 Exhibit D - Unpublished Case 2009 WL 324054, #5 Exhibit E - McFadyen Deposition Excerpts)(SEGARS, THOMAS)

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

DUKE’S REPLY BRIEF IN
SUPPORT OF ITS MOTION TO
RE-OPEN THE DEPOSITION OF
PLAINTIFF BRECK ARCHER
AND COMPEL ANSWERS TO
QUESTIONS PROPOUNDED BY
COUNSEL

Defendants.

Defendant Duke University (“Duke”), through counsel, submits this reply in
support of its Motion to Re-Open the Deposition of Plaintiff Breck Archer [DE 316
(the “Motion”)].
INTRODUCTION
Mr. Archer’s counsel deposed him after Duke finished questioning him. Mr.
Archer’s counsel elicited new testimony that revealed theories about Plaintiffs’
fraud claim. Duke resumed its examination and asked directly related follow-up
questions. Mr. Archer’s counsel instructed him not to answer as to those theories.
She maintained that instruction after Duke explained that any protection had been
waived by counsel’s inquiry into and Mr. Archer’s testimony concerning the
theories. This was improper and warrants the relief that Duke seeks in the Motion.

Mr. Archer’s Response to the Motion [DE 320 (the “Response”)] fails to
address most of Duke’s arguments in support of the Motion. Instead, Mr. Archer
argues that Duke failed to lay a proper foundation for re-opening the deposition.
This argument is not supported by the law or the facts.
ARGUMENT
I.

Mr. Archer Has Conceded Most of the Arguments Made in the Motion.
Mr. Archer failed to address the following arguments in Duke’s Motion:
 The attorney-client privilege and work product doctrine do not protect facts
from discovery [DE 317, at 6-7];
 Mr. Archer and his counsel waived any protections that might otherwise
have prevented discovery on the issue of Defendant Drummond’s alleged
knowledge of the prior release of DukeCard information [DE 317, at 8-10];
 When an attorney improperly instructs a witness, the re-opening of the
deposition is the proper relief [DE 317, at 10-11];
 Mr. Archer’s counsel has failed to provide the affidavit they agreed to secure
setting forth Mr. Archer’s knowledge on relevant issues [DE 317, at 11-12];
 This Court can compel Mr. Archer to sign the affidavit that his counsel
agreed to provide [DE 317, at 11]; and
 Duke may recover its costs in bringing the Motion [DE 317, at 12-13].
Mr. Archer conceded these points by failing to address them. See, e.g.,

Kinetic Concepts, Inc. v. ConvaTec, Inc., 1:08CV00918, 2010 WL 1667285, at *8
(M.D.N.C. Apr. 23, 2010) (unpublished case attached as Exhibit A); Brand v. N.C.
Dep’t of Crime Control & Pub. Safety, 352 F. Supp. 2d 606, 618 (M.D.N.C. 2004).
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Mr. Archer affirmatively acknowledges that his counsel assured Duke about
what his testimony would be, “prepared an affidavit to that effect for Mr. Archer to
sign,” and “arranged to have a declaration from Mr. Archer.” [DE 320, at 5]. Yet,
Mr. Archer has never actually provided that affidavit in the six months since his
counsel promised it. That being the case, his repeated assertion that “[t]here is
nothing to compel” is baffling. [DE 320, at 5].
These conceded points alone establish a basis for compelling Mr. Archer’s
provision of his affidavit (the alternative relief sought in the Motion) and for
awarding Duke its costs. As shown below, moreover, there is good cause for reopening Mr. Archer’s deposition (the primary relief sought in the Motion), too.
II.

Duke Laid the Foundation for Re-Opening Mr. Archer’s Deposition.
Mr. Archer makes only one argument against re-opening his deposition: that

Duke failed to lay a proper foundation for that relief. Mr. Archer cites no legal
authority and quotes selectively from the transcript. His argument is meritless.
The unabridged colloquy confirms Duke’s foundation for the Motion:
Q. Other than what you know from the testimony of Mr. Gettlief [sic],
do you know of any other facts that support your contention that as of
June 2nd, 2006, Mr. Drummond knew that Sergeant Smith had turned
over DukeCard information to Durham?
MS. SMITH: Objection. To the extent that it would reveal legal theories
of counsel, I’d instruct you not to answer.
THE WITNESS: It’s the--I mean, there’s theories within counsel, but . . .
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Q. 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 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.
MR. SEGARS: Very well. I -- 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 attorneyclient 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.
MS. SMITH: And I would assert that we are making privilege objections
based on work product and attorney-client communications. If he has
facts that are not legal theories or interpretation of facts, he can very well
answer the question. And we do not think that any privilege was waived.
(Archer Dep. Tr. 335:11-336:25 [DE 317-1].)

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Duke asked Mr. Archer for facts to support a contention in his complaint.1
Mr. Archer’s counsel instructed: “To the extent that it would reveal legal theories
of counsel, I’d instruct you not to answer.” Apparently under the mistaken belief
that his knowledge of facts was protected, Mr. Archer affirmed that he knew—but
was withholding—responsive information. Parroting his counsel’s instruction, he
affirmed: “there’s theories within counsel.” Duke again asked for the information:
“Okay, and I’d like to know what they are.” Mr. Archer’s counsel again refused to
allow Mr. Archer to provide that information: “You can’t ask about theories of
counsel.” This is the foundation for re-opening the deposition.
Mr. Archer’s assertion that Duke “ended the deposition without giving Mr.
Archer an opportunity to respond to his question” is false and at odds with another
1

The Court identified this very contention as critical to Mr. Archer’s fraud claim:
“Of course, it will ultimately be Plaintiffs’ burden to prove all of the elements of
this claim, including that Drummond was aware that the Duke Card reports had
previously been provided to the Durham police, in order to establish the requisite
intent to deceive.” (Mem. Op. at 174, Mar. 31, 2011 [DE 186] (emphasis added).)
After a year of discovery, Plaintiffs have no evidence to support this contention.
Mr. Archer’s Response characterizes the testimony of DukeCard office employee
Roland Gettliffe as establishing that Mr. Drummond knew that DukeCard data had
been given to unspecified “police” or “law enforcement.” [DE 320, at 2]. There is
a reason for Mr. Archer’s vague, but careful wording. Mr. Gettliffe testified that
he likely would have kept Mr. Drummond apprised of the fact that he provided
reports to the Duke police. (Gettliffe Dep. Tr. 21:22-22:12, 42:25-43:16 (excerpts
attached as Exhibit B)). There is no evidence, however, that Mr. Drummond knew
the Duke police had given the reports to the Durham police. In fact, Mr.
Drummond denied knowing this (and explained the distinction between these
police departments) in the only testimony on this issue. (Drummond Dep. Tr.
59:24-60:22, 116:17-117:11, 132:19-133:16 (excerpts attached as Exhibit C)).
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argument in the Response. [DE 320, at 4]. The Response opens: “Plaintiffs
oppose [the Motion] because Mr. Archer has already answered the question at
issue.” [DE 320, at 1]. Mr. Archer cannot have “already answered” the question if
Duke denied him an opportunity to respond. In any case, as the transcript shows,
Duke gave Mr. Archer at least two opportunities to respond. Rather than ending
the deposition, moreover, Duke expressly held the deposition open on the issue.
Similarly unavailing is Mr. Archer’s claim that Duke had no remaining time
within which to receive an answer to its question. [DE 320, at 4-5]. Mr. Archer
could have answered the question easily during the time his counsel debated the
point with speaking objections. Cf. Fed. R. Civ. P. 30(d)(1) (allowing for
expansion of time limit in consideration of impediments or delays).
Mr. Archer bears the burden of establishing privilege. See Kelly v. United
States, 281 F.R.D. 270, 276-77 (E.D.N.C. 2012). Having made no effort to carry
that burden, Mr. Archer instead criticizes Duke’s foundation. Courts have rejected
this very tactic as a legally unsupported attempt to transfer the burden. Cf. Saint
Annes Dev. Co., LLC v. Trabich, No. WDQ-07-1056, 2009 WL 324054, at *4 (D.
Md. Feb. 9, 2009) (unpublished case attached as Exhibit D) (rejecting argument
that inquiring counsel has an “‘affirmative burden’ . . . to make a record or suffer
denial of a motion to compel”).
Finally, Mr. Archer’s argument should not be countenanced because it
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squarely contradicts positions previously taken by his counsel. See, e.g., Allen v.
Zurich Ins. Co., 667 F.2d 1162, 1167 (4th Cir. 1982) (noting court’s discretion to
prevent “intentional self-contradiction . . . as a means of obtaining unfair
advantage”) (internal quotations omitted). During another deposition in this case,
counsel extensively objected to Duke’s follow-up questions after an instruction on
privilege—the same type of questions Mr. Archer faults Duke for not asking here:
Q. Mindful of your counsel’s instruction, and consistent with that
instruction, is there any reason as to why you decided to hire Mr.
Bachman that you can share with me that wouldn't violate her
instruction?
MS. SMITH: Objection. I think that’s confusing to him. It’s confusing
to me when I hear that. I think that asks the same question.
BY MR. SEGARS:
Q. Well, I guess--here’s what I’m trying to find out. I’m trying to find
out your reasons for hiring Glen Bachman-MS. SMITH: And we’re instructing him not to answer.
MR SEGARS: I understand.
Q. And my question is, is there any information responsive to that
question that is outside of the instruction that you’ve been given?
MS. SMITH: Objection. I think it’s confusing. I mean, these boys are
not-MR. EKSTRAND: I think he’s answering “no,” so . . .
MR. SEGARS: I’m just--

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MS. SMITH: I just mean-MR SEGARS: You’re the one who's instructing him.
MS. SMITH: --they don’t understand privilege as well as we might, and
so they have to follow our instruction. And I think every time you follow
up with these questions it's confusing to them. And they not trying to
withhold anything-MR SEGARS: Well--right.
MS. SMITH: --but they’re also trying to follow their counsel’s
instruction and the follow-up question. It’s like--they’re not lawyers.
They can’t determine what’s reasoning that’s separate from privilege;
what’s facts and separate from our work product. They just can’t. And it
happens at every single deposition. And we’re not trying to have them
withhold anything, but at the same time they should be able to follow
their own counsel’s instruction.
(McFadyen Dep. Tr. 126:25-128:16 (excerpts attached as Exhibit E)). Mr.
Archer’s current effort to argue the opposite position to his advantage is
disengenuous. Allen, 667 F.2d at 1167.
Duke laid the proper foundation for its Motion. Accordingly, Duke is
entitled to re-open Mr. Archer’s deposition.
CONCLUSION
For the reasons set forth above and in its opening brief, Duke respectfully
requests that the Court order the re-opening of Mr. Archer’s deposition or, in the
alternative, compel Mr. Archer to complete and return the affidavit he agreed to
provide. In either case, Duke requests that its costs be taxed against Mr. Archer.

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This the 19th day of December, 2012.
/s/ Thomas H. Segars
Paul K. Sun, Jr.
N.C. State Bar No. 16847
Email: [e-mail]
Thomas H. Segars
N.C. State Bar No. 29433
Email: [e-mail]
Jeremy M. Falcone
N.C. State Bar No. 36182
Email: [e-mail]
Ellis & Winters LLP
P.O. Box 33550
Raleigh, North Carolina 27636
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 on December 19, 2012, 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 the 19th day of December, 2012.

/s/ Thomas H. Segars
Thomas H. Segars
N.C. State Bar No. 29433
Email: [e-mail]
Ellis & Winters LLP
P.O. Box 33550
Raleigh, North Carolina 27636
Telephone: [phone]
Facsimile: [phone]
Counsel for Duke University