MCFADYEN et al v. DUKE UNIVERSITY et al

Filing 345

ORDER signed by MAG/JUDGE JOI ELIZABETH PEAKE on 8/7/2013; that the pending discovery-related motions [Doc. #289 , #294 , #297 , #302 , #304 , #305 , #306 , #310 , #312 , #316 , #318 ] are DENIED as set out above, without prejudice to further consideration of any remaining issues if necessary at a status and scheduling conference after resolution of the Motion for Judgment on the Pleadings. (Sheets, Jamie)

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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1:07CV953

ORDER
This matter is before the Court on multiple pending discovery motions filed prior to the
decision of the Court of Appeals for the Fourth Circuit on the interlocutory appeal in this case.
These pending discovery motions all relate to Counts 21 and 24, which were not the subject of
the interlocutory appeal. While the interlocutory appeal was pending, discovery proceeded as
to Counts 21 and 24, although discovery was stayed as to the remaining counts that were part
of or related to the interlocutory appeal. The Court of Appeals for the Fourth Circuit has issued
its Order on the interlocutory appeal, Plaintiffs have filed a petition for certiorari with the
Supreme Court, and the Duke Defendants have now filed a Motion for Judgment on the
Pleadings in this Court with respect to the claims that were related to the interlocutory appeal.
With respect to Counts 21 and 24, fact discovery has closed and relevant evidence on
those counts has been produced and preserved. The Court notes that the Duke Defendants
previously filed a Motion for Status Conference [Doc. #304] on scheduling issues, and requested
an extension of the dispositive motion deadline with respect to Counts 21 and 24. Given the

proceedings on the interlocutory appeal, it appears that further resolution of dispositive motions
on Counts 21 and 24 should not proceed until after the Motion for Judgment on the Pleadings
has been resolved and the course and scope of all of the proceedings in this case can be
addressed, so that it is clear whether any federal law claims remain in this case before briefing
of dispositive motions as to Counts 21 and 24. Therefore, the Court will not set a deadline for
the filing of dispositive motions as to Counts 21 and 24 at this time, and this case will be set for
a status and scheduling conference as to Counts 21 and 24 after the resolution of the Motion
for Judgment on the Pleadings.
With respect to the remaining discovery-related motions that are pending, the Court
notes that Plaintiffs previously filed a Motion for Protective Order [Doc. #294] regarding the
deposition of Plaintiffs’ counsel in a related case,1 which now appears to be moot. Plaintiffs’
related Motion for Extension of Time [Doc. #305] to file a reply brief, Duke’s related Motion
to Strike [Doc. #310], and Plaintiffs’ related Motion for Leave to File Reply Brief [Doc. #312]
are also moot.
The parties also filed a Consent Motion to Extend Discovery [Doc. #302] to secure an
affidavit from Plaintiff Breck Archer, and a related Motion to Re-open the Deposition of
Plaintiff Breck Archer or Compel Production of Affidavit [Doc. #316]. According to a
subsequently-filed Notice, the requested affidavit has been provided, and the Motions therefore

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The Court notes that the dispute regarding Plaintiffs’ counsel involved a subpoena issued in Carrington
v. Duke University, Case No. 1:08CV119. However, the pending discovery matters in that case have been
rendered moot in light of the settlement and Stipulation of Dismissal as to the Duke Defendants in that case.
To the extent that any issues remain in the present case, those issues should be resolved after the course and
scope of future proceedings has been determined, as noted above.

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appear to be moot.2 In addition, the parties filed Consent Motions [Doc. #306, 318] to extend
the discovery period to allow Duke to receive documents produced after the close of discovery.
It appears that those motions are also moot.
Plaintiffs also filed a Motion to Compel [Doc. #297], seeking to compel additional
discovery from Defendant Duke, and a Motion for Oral Argument [Doc. #315] on that request.
If Plaintiffs still seek additional discovery, the Motion to Compel may require a hearing and,
potentially, a shifting of costs to Plaintiffs to the extent any additional discovery is allowed.
However, as noted above, this case will be set for a status conference as to Counts 21 and 24
after the resolution of the Motion for Judgment on the Pleadings, and to the extent any
discovery issues remain, the Court can take those up at such a status conference. If any party
believes that a more expedited schedule is needed for any reason related to any remaining
discovery issues, that party may file a motion for hearing stating the basis therefor. Therefore,
the Motion to Compel will be denied without prejudice to further consideration of those issues
at a future status and scheduling conference on Counts 21 and 24.
Finally, Plaintiffs filed a Motion to Modify Protective Order [Doc. #289]. In the Motion
to Modify, Plaintiffs do not object to the provisions of the Protective Order that provide
protection for confidential information, and Plaintiffs agree that “the procedures outlined by the
Court for the preliminary sealing of documents designated as confidential upon filing are
sufficient and narrowly tailored to apply only to documents that are actually filed.” Instead,
Plaintiffs’ Motion to Modify primarily seeks to strike the provision of the Protective Order that
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To the extent the affidavit was provided outside the discovery period, that production will be allowed.

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allows a party to object to another party’s confidentiality designation. However, the provision
that Plaintiffs seek to strike simply gives the parties the option and ability to object to another
party’s confidentiality designation, if a party believes that an item has been designated as
confidential that in fact should not be subject to confidentiality provisions. Thus, the Court
finds that the provision challenged by Plaintiff should remain in the Protective Order because
it helps to ensure that information is not improperly designated as confidential. Moreover, the
Court further notes that a failure to object under that provision does not preclude a party from
later contesting another party’s confidentiality designation. Thus, there is no need to strike the
provision giving the parties the option of challenging another party’s confidentiality designation.
Any additional issues regarding the Protective Order can be considered at the status and
scheduling conference following resolution of the Motion for Judgment on the Pleadings.
For the reasons set out above, the pending discovery-related motions [Doc. #289, #294,
#297, #302, #304, #305, #306, #310, #312, #316, #318] will be denied as set out above,
without prejudice to further consideration if necessary at a status and scheduling conference
after resolution of the Motion for Judgment on the Pleadings.3

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The Court notes that Plaintiffs request that the Court decide the Motion for Judgment on the Pleadings
“after the outcome of Plaintiffs’ petition for a writ of certiorari is ruled upon and any subsequent appellate
proceedings are concluded.” As noted above, if there is a specific need for more expedited consideration of any
remaining discovery-related issues, either party may file a motion in that regard.

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IT IS THEREFORE ORDERED that the pending discovery-related motions [Doc.
#289, #294, #297, #302, #304, #305, #306, #310, #312, #316, #318] are DENIED as set out
above, without prejudice to further consideration of any remaining issues if necessary at a status
and scheduling conference after resolution of the Motion for Judgment on the Pleadings.
This, the 7th day of August, 2013.
/s/ Joi Elizabeth Peake
United States Magistrate Judge

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