MCFADYEN et al v. DUKE UNIVERSITY et al

Filing 402

Rule 26(f) Report (Individual). by RICHARD H. BRODHEAD, PHD, JOHN BURNESS, ROBERT DEAN, MATTHEW DRUMMOND, DUKE UNIVERSITY, VICTOR J. DZAU, M.D., AARON GRAVES, LARRY MONETA, ED.D., GARY N. SMITH, ROBERT K. STEEL, THE CITY OF DURHAM, NORTH CAROLINA.(WELLS, DIXIE)

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,
Rule 26(f) Report of the Duke
Defendants and the City of
Durham

v.
DUKE UNIVERSITY, et al.,
Defendants.

On 17 March 2014, this Court entered an Order setting a pretrial scheduling
conference for Friday, 28 March 2014. [DE 352.] In addition to setting dates for
the conference required by Rule 26(f) of the Federal Rules of Civil Procedure and
for the filing of reports required by Rule 26(f), the Court directed the parties to
discuss “the extent of discovery to be conducted and a plan for completing that
discovery on an expedited basis.” [Id.] On 21 March 2014, this Court granted
motions filed by the City of Durham and Linwood Wilson seeking to continue
those dates. [DE 359.] The Order further directed the parties to “meet and confer
by May 16, 2014, and submit their joint or individual Rule 26(f) Reports by May
20, 2014.” [Id.] The Order still further directed that “any discovery plans will
need to provide for the completion of all discovery in advance of the October 2014

trial” because “the case has now been set for trial during the October 2014 Trial
Calendar, at the direction of the District Judge.” [Id.]
Procedural Posture
A brief review of the procedural posture of this case follows in order to
identify the remaining discovery that needs to be conducted:
On 31 March 2011, United States District Judge James A. Beaty entered an
order granting in part and denying in part various motions to dismiss that were then
pending before the Court. As a result of that Order, six Counts remained against
one or more of the following defendants associated with Duke University: Duke
University, Richard Brodhead, Robert Steel, Victor Dzau, Larry Moneta, John
Burness, Matthew Drummond, Aaron Graves, Robert Dean, and Gary N. Smith,
Duke University Health Systems and Tara Levicy (hereafter referenced as the
“Duke Defendants”). Those six Counts were Counts 1, 2, 18, 21, 24, and 32. Ten
Counts remained against the City of Durham or one of the individual Durham
Defendants. Two Counts remained against Linwood Wilson.
On 9 June 2011, Judge Beaty granted Motions to Stay [DE 205, 211, 212]
filed by the City of Durham and individual Durham defendants [DE 218].
Pursuant to the terms of that Stay, all proceedings with respect to Counts 1, 2, 5,
12, 13, 14, 18, 25, 26, 32, 35, and 41 were stayed pending resolution of an
interlocutory appeal by the Durham Defendants.
2

A.

Duke Defendants

The Court ordered that fact discovery proceed with respect to Counts 21 and
24, which were Counts that remained only as to the Duke Defendants and did not
include any of the Durham Defendants. Accordingly, fact discovery on Counts 21
and 24 began on 21 September 2011, when Magistrate Judge Dixon entered the LR
16(c) Initial Pretrial Order [DE 244]. (LR 16.1 Initial Pretrial Order ¶2(a).) Judge
Dixon stayed expert discovery on Counts 21 and 24. (Id. ¶2(f).) Fact discovery on
Counts 21 and 24 closed on 21 September 2012 per the terms of that order.
(9/21/11 Order ¶2(b)(1).) During that twelve-month period, the Plaintiffs and the
Duke Defendants took thirty-eight depositions, exchanged roughly 45,000 pages of
documents, and served and responded to interrogatories and requests for
admission.
On 17 December 2012, the Fourth Circuit issued its decision on the
interlocutory appeal in Evans v. Chalmers, 703 F.3d 636 (4th Cir. 2012). On 27
February 2013, based on that Fourth Circuit decision, Tara Levicy moved for
judgment on the pleadings on Counts 1, 2, and 18,1 Gary Smith moved for
judgment on the pleadings on Count 2, and Duke and DUHS moved for judgment
1

Plaintiffs also asserted Count 18 against Duke University, Richard
Brodhead, Robert Steel, John Burness, and Victor Dzau in addition to Tara Levicy.
None of those Duke Defendants moved for Judgment on the Pleadings.

3

on the pleadings on Count 32 [DE 335]. The Court granted that motion on 20 May
2014 [DE 401].2
B.

The City of Durham

With respect to Count 41, a claim that is asserted solely against Defendant
the City of Durham, North Carolina (“City”), and the only claim asserted against
the City, discovery was stayed pursuant to the 9 June 2011 Order [DE 218]
referenced above. The City has filed a motion for judgment on the pleadings as to
Count 41 [DE 385]. The City’s motion for judgment on the pleadings has been
fully briefed [DE 386, 399, 400] and is ready for determination. The City
respectfully contends that discovery should not begin until after the Court has ruled
on its pending motion for judgment on the pleadings, since to do otherwise could
require the parties to expend time and resources conducting discovery on Count 41,
which is subject to dismissal as a matter of law. Further, the City has filed a
motion to sever [DE 395], which the City respectfully submits is necessary to
minimize risks of unfair prejudice and confusion. See Watkins v. Hospitality
Group Management, Inc., No. 1:02-CV-897, 2003 U.S. Dist. LEXIS 22291
(M.D.N.C. Dec. 1, 2003), and additional authorities cited in brief in support of
motion to sever [DE 396].
2

As part of the same Order, the Court granted Linwood Wilson’s Motion for
Judgment on the Pleadings. No claims remain against Mr. Wilson.
4

Rule 26(f) and LR 16.1 Report
The Duke Defendants’ and City’s report, as required by Rule 26(f) and LR
16.1 and this Court’s Order directing that “any discovery plans will need to
provide for the completion of all discovery in advance of the October 2014 trial”
[DE 359], follows:3
1.

Pursuant to this Court’s Order of 21 March 2014 [DE 352], Rule 26(f) of the
Federal Rules of Civil Procedure, and Local Rule 16.1(b), a meeting was
held in Winston-Salem on 16 May 2014. Participating in the meeting were
Robert Ekstrand and David Hunter of Ekstrand & Ekstrand for the
McFadyen Plaintiffs; Paul Sun and Dixie Wells of Ellis & Winters LLP for
Defendants Duke University, Richard Brodhead, Robert Steel, Victor Dzau,
John Burness, Matthew Drummond, Aaron Graves, Robert Dean, and Gary
N. Smith; Dan McLamb, Barbara Weyher, and Allison Becker of Yates,
McLamb & Weyher for Defendants Duke University Health Systems and
Tara Levicy; Reginald Gillespie of Wilson & Ratledge PLLC and Kimberly

3

In the event the City’s motion to sever is granted, a separate discovery plan
will be warranted. The Defendants submit this combined report in an effort to
reduce the Court’s workload as to this aspect of the case. It is the City’s position
that the complexities arising from the submission, consideration, and potential
implementation of the matters addressed by this combined report further illustrate
the need for severance of Count 41.
5

Rehberg for Defendant City of Durham; and Linwood Wilson, pro se
defendant, on his own behalf.
2.

Because of the abbreviated discovery period and the 6 October 2014 trial
date, the Defendants respectfully request that this Court issue a schedule that
takes into consideration the need to expedite deadlines and avoid potential
areas for disputes such that discovery can be completed in the short time
remaining. Accordingly, the Defendants are submitting a report that
provides more detail than that required under LR 16.1 and 16.3.

3.

Pre-Discovery Disclosures. Counsel for the Plaintiffs, the Duke Defendants,
and the City have agreed to exchange by 30 May 2014, the information
required by Rule 26(a)(1) of the Federal Rules of Civil Procedure for Counts
18 and/or 41 (to the extent applicable). Consistent with the Court’s Orders
of 9 June 2011 [DE 218] and 21 September 2011 [DE 244], disclosures have
already been exchanged between the Plaintiffs and the Duke Defendants
regarding Counts 21 and 24 of the Second Amended Complaint in the
McFadyen case. (Certain Duke Defendants are the only named defendants
in Counts 21 and 24.)

4.

Discovery Plan. The Defendants propose to the Court the following
discovery plan:

6

a.

Pursuant to this Court’s Order of 21 September 2011 [DE 244], fact
discovery closed on Counts 21 and 24 on 21 September 2012. The
discovery that remains to be done on the claims against the
Defendants is fact discovery on Counts 18 and 41 (to the extent Count
41 survives the City’s pending motion) and expert discovery on
Counts 18, 21, 24, and 41 (again, to the extent Count 41 survives the
City’s pending motion). The Defendants contend that discovery will
be needed only on the following subjects at this stage of the litigation:
i.

COUNT EIGHTEEN: COMMON LAW OBSTRUCTION
OF JUSTICE AND CONSPIRACY – REMAINING
AGAINST STEEL, BRODHEAD, DZAU, BURNESS, AND
DUKE UNIVERSITY
 Whether a conspiracy existed as alleged in Count 18.
 Whether false public statements, if any, were made by Duke
University or any of the Duke Defendants against whom
Count Eighteen is alleged and, if so, the extent to which the
person making the statement knew it to be false, and the
intention behind that statement.
 Whether Robert Steel, Richard Brodhead, Victor Dzau, John
Burness, Peter Lange, Larry Moneta, Aaron Graves, Robert
Dean, and/or Sue Wasiolek made plans to conceal their
alleged participation in preparing false or misleading
investigation reports, false or misleading medical records or
reports, or false public statements, including but not limited
to a purported email sent in January of 2007 by Larry
Moneta as alleged in Paragraph 1198 of the Second
Amended Complaint.

7

 Fact discovery with regard to whether any alleged acts of the
Duke Defendants caused injury to any of the Plaintiffs.
 Fact discovery on any purported damages that resulted from
the allegations included in Count Eighteen of the Second
Amended Complaint.
 Expert discovery on any purported damages that resulted
from the allegations included in Count Eighteen of the
Second Amended Complaint.
ii.

COUNT TWENTY-ONE: BREACH OF CONTRACT –
REMAINING AGAINST DUKE UNIVERSITY
 Per Magistrate Judge Dixon’s Order of 21 September 2011,
fact discovery on this Count closed on 21 September 2012
[DE 244]. Accordingly, any additional fact discovery on
Count Twenty-One should be prohibited.
 Expert discovery on any purported damages that resulted
from the allegations included in Count Twenty-One of the
Second Amended Complaint.

iii.

COUNT TWENTY-FOUR: FRAUD – REMAINING
AGAINST SMITH, GRAVES, DEAN, DRUMMOND, AND
DUKE UNIVERSITY
 Per Magistrate Judge Dixon’s Order of 21 September 2011,
fact discovery on this Count closed on 21 September 2012
[DE 244]. Accordingly, any additional fact discovery on
Count Twenty-Four should be prohibited.
 Expert discovery on any purported damages that resulted
from the allegations included in Count Twenty-Four of the
Second Amended Complaint.

8

iv.

COUNT FORTY-ONE: VIOLATIONS OF ARTICLE I
AND ARTICLE IX OF THE NORTH CAROLINA
CONSTITUTION – REMAINING AGAINST THE CITY
 Whether the City violated Plaintiffs’ rights under the North
Carolina Constitution in the issuance and execution of the
Nontestimonial Identification Order (the “NTO”) that is the
subject of Count 41.4
 Whether the City violated Plaintiffs McFadyen’s rights
under the North Carolina Constitution in the issuance and
execution of the search warrant for his dorm room that is the
subject of Count 41.5
 Fact and expert discovery related to the foregoing.6
 Fact discovery on any purported damages that resulted from
the allegations included in Count 41 of the Second Amended
Complaint.
 Expert discovery on any purported damages that resulted
from the allegations included in Count 41 of the Second
Amended Complaint.

c.

Discovery shall be placed on a case-management track established in
LR26.1. The undersigned parties propose that the appropriate plan for

As set forth in the City’s motion for judgment on the pleadings and
supporting brief [DE 386], Plaintiffs have failed to give adequate notice of the
underlying basis or bases for Count 41. This item is set forth here based on
Plaintiffs’ opposition [DE 399] to the City’s motion for judgment on the pleadings.
The City does not waive any defects or failures on the part of Plaintiffs in the
articulation of their claim(s) in Count 41.
4

5

Please see preceding n.4.

6

Please see preceding n.4.
9

this case (with any modification as set out below) is that designated in
LR26.1(a) as:
X Standard
Complex
Exceptional
d.

Provided that special accommodations are made with respect to the
deadlines for written discovery and for dispositive motions as
described in greater detail in Part 7 below, the date for the completion
of all discovery (fact and expert) should be 15 July 2014, to allow
adequate time for motions for summary judgment to be briefed on an
expedited basis and decided before the 6 October 2014 trial date.

e.

Stipulated modifications of the case management track include:
(1)

Because fact discovery has closed on Counts 21 and 24, fact
discovery, including depositions, should be limited to discovery
regarding any nonprivileged matter that is relevant to the
Plaintiffs’ claims in Counts 18 and 41 of the Second Amended
Complaint in the McFadyen case and the Duke Defendants’ and
City’s defenses to those same Counts.

(2)

Because expert discovery on Counts 21 and 24 was stayed by
Magistrate Judge Dixon, expert discovery, including
10

depositions, should be limited to discovery regarding any
nonprivileged matter that is relevant to the Plaintiffs’ claims in
Counts 18, 21, 24, and 41 of the Second Amended Complaint in
the McFadyen case and the Duke Defendants’ and the City’s
defenses to those same Counts.
(3)

Interrogatories (including subparts) should be limited such that
each group (i.e., the Plaintiffs, the Duke Defendants, and the
City), whether the members of such group are acting
individually or collectively, is allowed to serve a maximum of
15 interrogatories (including subparts) upon each named party
in any other group. (For example, after plaintiff A submits 10
interrogatories to a particular Duke Defendant, neither plaintiff
A nor any other individual plaintiff nor any group of plaintiffs
may submit more than 5 additional interrogatories to that
particular Duke Defendant. However, the City of Durham may
serve an additional 15 interrogatories on that same Duke
Defendant.)

(4)

Requests for admission:
(a).

Requests for admission should be limited such that each
group (i.e., the Plaintiffs, the Duke Defendants, and the
11

City), whether the members of such group are acting
individually or collectively, is allowed to serve a
maximum of 15 requests for admission (including
subparts) upon each named party in any other group.
(For example, after plaintiff A submits 10 requests for
admission to a particular Duke Defendant, neither
plaintiff A nor any other individual plaintiff nor any
group of plaintiffs may submit more than 5
additional requests for admission to that particular Duke
Defendant. However, the City of Durham may serve an
additional 15 requests for admission on that same Duke
Defendant.) Such requests for admission should be
labeled clearly as being substantive requests for
admission to distinguish them from the requests for
admission allowed in paragraph b below.
(b).

In addition to the 15 requests for admission allowed
above, each group, whether the members of such group
are acting individually or collectively, should be able to
serve an unlimited number of requests for admission
purely for the purposes of authenticating documents that
12

may be used as exhibits in the trial of this action. Such
requests for admission should be labeled clearly as being
requests for admission for the purposes of authenticating
documents to distinguish them from the requests for
admission allowed in paragraph a above.
(5)

Fact depositions should be limited to 8 depositions by the
Plaintiffs, 8 depositions by the Duke Defendants, and 8
depositions by the City. Depositions should be noticed at least
5 days before the date of the deposition.

(6)

In addition to the depositions allowed under (5), any party
should be entitled to depose any expert witness properly
disclosed by any other party, as well as treating physicians of
Plaintiffs.

(7)

Because this Court has directed that the parties propose “a plan
for completing . . . discovery on an expedited basis” and
because extensive discovery has already been conducted
relating to a significant portion of the general subject matter at
issue in this case, the deposition of any witness (other than a
witness noticed under Rule 30(b)(6) of the Federal Rules of
Civil Procedure), who was previously deposed by the party
13

noticing the deposition should be limited in duration to 2 hours.
Accordingly, if any party notices the deposition of any witness
in his or her individual capacity whom that party previously
deposed as an individual witness during the first phase of
discovery on Counts 21 and 24, then that party’s time with the
witness should be limited to 2 hours, with the overall deposition
limited to 7 hours. Depositions of any witness who was not
previously deposed by the party noticing the deposition should
be limited to seven hours as set forth in Rule 30(d)(2), unless
the parties agree otherwise or the Court allows additional time.
For purposes of clarity, the City has not noticed any depositions
previously, so the deposition of any witness noticed by the City
should be limited to seven hours as set forth in Rule 30(d)(2).
(8)

For purposes of determining how many depositions have been
taken, each Rule 30(b)(6) deposition should be counted as a
single deposition. Further, the seven hour limit should apply to
any Rule 30(b)(6) deposition, without regard to the number of
witnesses who are designated to testify on behalf of the
corporation and without regard to whether the corporation was
deposed in the discovery related to Counts 21 and 24.
14

f.

Reports required by Rule 26(a)(2)(B) and disclosures required by
Rule 26(a)(2)(C) of the Federal Rules of Civil Procedure should be
due during the discovery period:
(1)

From Plaintiff(s) by 16 June 2014. At the same time that the
reports or disclosures are produced, Plaintiffs should provide at
least three alternative dates on which each witness may be
deposed before 30 June 2014. The Parties should have agreed
in advance on days during this time period that should be held
by all Parties to facilitate scheduling. The Defendants should
notify the Plaintiffs of the dates selected for each deposition
within 24 hours.

(2)

From Defendant(s) by 1 July 2014. At the same time that the
reports or disclosures are produced, Defendants should provide
at least three alternative dates on which each witness may be
deposed before 15 July 2014. The Parties should have agreed
in advance on days during this time period that should be held
by all Parties to facilitate scheduling. The Plaintiffs should
notify the Defendants of the dates selected for each deposition
within 24 hours.

15

g.

Supplementations under Rule 26(e) should be due within 5 days after
a party discovers new information that must be disclosed, provided,
however, that during the final 10 days of discovery, all
supplementations shall occur as soon as practicable so as not to
prejudice the other party. In addition, 5 days before the close of fact
discovery, the parties should certify that they have produced all
supplementations currently available to them.

h.

Discovery of Electronic Stored Information (“ESI”). After learning of
potential litigation against Duke University arising out of the
indictment of three members of the Duke men’s lacrosse team, Duke
University began its efforts to preserve electronic data on 20 April
2007. The preservation efforts have continued through the present
with considerable expense to Duke University. The Duke Defendants
believe that the following plan is consistent with Rule 26(b)(2) of the
Federal Rules of Civil Procedure and avoids discovery that is
“unreasonably cumulative or duplicative.” Further, this plan is
proposed taking into consideration whether the “burden or expense of
the proposed discovery outweighs its likely benefit, taking into
account the needs of the case, the amount in controversy, the parties’
resources, the importance of the issues at stake in the litigation, and
16

the importance of the proposed discovery in resolving the issues.”
Fed. R. Civ. P. 26(b)(2)(C)(iii). In order to reasonably mitigate costs
while still complying with discovery mandates, the Defendants
propose that the following actions be taken:
(1)

Relevant information and custodians:
The Duke Defendants propose to limit the review of data
for documents responsive to Count 18 to a specified group of
12 custodians.7 Twelve custodians is a significant number of
custodians for the one narrow claim going forward in this phase
of discovery as to the Duke Defendants, and the Duke
Defendants believe that these custodians will yield the most
substantial and complete data in accordance with Plaintiffs’
discovery requests, without being “unreasonably cumulative or
duplicative.”8 Further, going beyond this list of 12 custodians

7

The Duke Defendants have identified these custodians as Jeffrey Best,
Richard Brodhead, John Burness, Robert Dean, Victor Dzau, Aaron Graves,
Allison Haltom, Peter Lange, Larry Moneta, Bob Steel, Tallman Trask, Sue
Wasiolek.
8

This approach, including the selection of the specific custodians whose
data should be reviewed, is consistent with the approaches taken by other courts.
When dealing with ESI, courts have generally deferred to the producing party to
identify the custodians likely to possess responsive documents. See generally
Garcia v. Tyson Foods, Inc., No. 06-2198-JWL-DJW, 2010 WL 5392660, at *2-4
17

imposes both a “burden” and “expense” that “outweighs” the
“likely benefit” to be gained from searching the electronic
records of additional custodians.9 Once the data of the

(D. Kan. Dec. 21, 2010). This is because responding parties are “best situated to
evaluate the procedures, methodologies, and techniques appropriate for preserving
and producing their own electronically stored information.” Kleen Products LLC v.
Packaging Corp. of Am., No. 10 C 5711, 2012 WL 4498465, at *5 (N.D. Ill. Sept.
28, 2012) (quoting The Sedona Conference, The Sedona Conference Best Practices
Commentary on the Use of Search and Information Retrieval Methods in EDiscovery, 8 Sedona Conf. J. 189, 193 (Fall 2007)). Courts tend to limit the
required custodians to those “likely to possess responsive documents.” See, e.g.,
CDW LLC v. NETech Corp., No. 1:10–cv–00530–SEB–DML, 2011 WL 1743749,
at *2 (S.D. Ind. May 5, 2011).
9

Courts have been particularly likely to limit the number of custodians
where a party can demonstrate that production of documents without such a
restriction would be unjustifiably costly, as it would be in this case. See, e.g.,
Thermal Design, Inc. v. Guardian Bldg. Prods., Inc., No. 08–C–828, 2011 WL
1527025, at *1 (E.D. Wis. Apr. 20, 2011) (holding that a search of “all archived email accounts and shared network drives, without any restriction as to custodian or
individual” that would take “several months” and cost “an additional $1.9 million
dollars” not including an additional thirteen weeks and $600,000 to review “is not
reasonably accessible”). The court in Thermal Design explained that “even if the
information sought is relevant or reasonably calculated to lead to the discovery of
admissible evidence, [the requesting party] doesn’t explain why the extensive
amount of information it seeks is of such importance that it justifies imposing an
extreme burden on the [defendants]. Fed. R. Civ. P. 26(b)(2)(C)(iii) (factors
include ‘the needs of the case, the amount in controversy, the parties’ resources,
the importance of the issues at stake in the action, and the importance of the
discovery in resolving the issues’). Courts should not countenance fishing
expeditions simply because the party resisting discovery can afford to comply.”
Id.; see also Assured Guardian Mun. Corp. v. UBS Real Estate Securities, Inc.,
2013 WL 1195545, *3-4 (S.D.N.Y Mar. 25, 2013) (denying motion to compel
search of additional custodians without a showing that they would be likely to have
non-cumulative relevant documents); Little Hocking Water Assn., Inc. v. E.I. Du
18

custodians has been reviewed for relevance and privilege as set
forth below, the Duke Defendants will produce data responsive
to the requests made by the Plaintiffs. If after that review,
Plaintiffs affirmatively show that the data from additional
custodians should be produced in order to comply with the
discovery that the Court has ordered, the Duke Defendants
could review data from those additional custodians at that time.
With respect to the City, it did not learn of potential
litigation until September 2007, when counsel for the players
who were indicted—not the Plaintiffs—gave the City notice of
potential claims. The City commenced preservation efforts, but
data stored on City servers and copied to backup tapes were not
then and are not now available prior to September 2006, long

Pont De Nemours & Co., 2013 WL 608154, *10 (S.D. Ohio Feb. 19, 2013)
(denying motion to compel to search additional custodians because burden of
doing so outweighed movant’s “speculation” that additional responsive documents
would be located).
The onus should be on the Plaintiffs to put forward evidence that additional
custodians were involved in the relevant events and would likely possess
responsive documents and that this benefit would outweigh the additional costs.
See, e.g., Harris v. Koenig, 271 F.R.D. 356, 367 (D.D.C. 2010). Limiting the
initial productions does not prevent the Plaintiffs from making additional requests
in the future if a need should arise.

19

after the issuance and execution of the NTO and search warrant
that are apparently the subject of Count 41.10 As discussed at
the Rule 26(f) conference on 16 May 2014, the City ceased
using the tape library system that wrote the subject backup
tapes several years ago, as it was outmoded technology. The
City does not currently have access to a tape library system or
server that would be capable of restoring the backup tapes and
retrieving data from them. As a result, the data on these tapes
cannot be retrieved by the City itself, and if data can be
retrieved at all from a third-party firm specializing in data
recovery, such retrieval could be done only at enormous cost to
the City. Such exorbitant expense for restoration and retrieval
of data from the tapes cannot be justified given that the data
postdate significantly the issuance and execution of the NTO
and search warrant, and would as a result have limited, if any
relevance or value. With respect to the 15 City personnel who
were named as Defendants but as to whom the legally
unsupportable claims against them were dismissed by this
Court or the Court of Appeals, the City has preserved hard
10

Please see supra n. 4.
20

drives of the 12 former City Defendants who are no longer
employed by the City.
(2)

Review end date for Duke Defendants and the City. The Duke
Defendants and the City propose an end-date of 31 August
2007 for review of the Duke Defendants’ and City’s data. The
Attorney General of the State of North Carolina made his
statement in April 2007, four months before this proposed enddate. The Second Amended Complaint alleges in Count 18 that
the Duke Defendants disbanded their alleged conspiracies in
January 2007 and that the alleged conspirators met
“immediately” to “get their stories straight.” There is no
allegation or inference that responsive documents would have
been created more than seven months later. The burden and
expense of examining data created after 31 August 2007, in
general, likely outweighs any benefit in that there is little
likelihood that any relevant information regarding McFadyen
Count 18 was created after August 2007. The City likewise
believes the burden and expense of examining data created after
31 August 2007, in general, likely outweighs any benefit in that
there is little likelihood that any relevant information regarding
21

Count 41 was created after January 2007, when the criminal
investigation that is the subject of this Count was referred to the
North Carolina Attorney General. The Duke Defendants and
the City intend to question relevant witnesses as to whether any
relevant documents were created after 31 August 2007. In the
event that relevant documents exist, the Duke Defendants
and/or the City, as the case may be, would undertake to collect
and review those documents on a case-by-case basis.
(3)

Preservation and review end date for Plaintiffs. With respect to
the Plaintiffs, because the Plaintiffs contend that their damages
are ongoing and continue to the present, there should be no
such end-date for preservation and review of the Plaintiffs’
data. So long as the claims for damages continue, the need for
documents that support or rebut those claims exists.

(4)

Search Methodology. The Duke Defendants and the City
propose that they work together with the Plaintiffs to develop a
reasonable set of “keyword” search terms to be run against the
preserved data for the 12 Duke Defendants’ custodians and the

22

City’s data. 11 This subset of documents will then be reviewed
by the Duke Defendants or the City, as the case may be, for
responsiveness and privilege, and responsive, non-privileged
documents should be produced. Because of the type of
damages sought by the Plaintiffs and the multitude of
information that would be relevant to those damages claims, a
keyword search cannot be used to limit the volume of the
Plaintiffs’ data that is reviewed. Accordingly, the Plaintiffs
should review their entire set of data for responsiveness,
relevance, and privilege, and only responsive, relevant, nonprivileged documents should be produced.
(5)

Production of ESI and Documents. The Duke Defendants and
the City propose rolling productions from all parties. The
Defendants also propose that the parties produce electronic files
and documents as outlined below:

11

“The use of key words has been endorsed as a search method for reducing
the need for human review of large volumes of ESI to be followed by a cooperative
and informed process [that includes] sampling and other quality assurance
techniques.” Romero v. Allstate Ins. Co., 271 F.R.D. 96, 109 (E.D. Pa. 2010).
Because of the significant volume of ESI associated with these 12 custodians, if a
keyword search were not used, and the ESI was to be manually searched, the time
required to conduct such a search would likely result in the “burden of the
proposed discovery outweigh[ing] its likely benefit.” Ulyanenko v. Metro. Life
Ins. Co., No. 09 Civ. 3513, 2011 WL 2183172, at *5 (S.D.N.Y. June 3, 2011).
23

(a)

ESI and non-ESI should be produced to the requesting
party as text searchable image files (e.g., PDF or TIFF).
The parties should produce their information in the
following format:
 Electronic files should be converted to group IV
single page tiff or multi-page PDF. All paper
documents should, at the option of the producing
party, be produced in paper or be scanned to group IV
single page tiff or multi-page PDF.
 Each file should have a unique bates number applied
to the images matching the image file name. (I.e.
Bates number = ABC0000123.tif or
ABC0000123.pdf)
 All confidential documents should have the
‘Confidential’ designation applied to the image.
 Each searchable native/near-native file should have an
extracted text file in multipage .txt format named with
the Bates number of the corresponding file. Each
non-searchable file containing text should have a

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multipage OCR text file named with the Bates number
of the corresponding file. (I.e., Bates number =
ABC0000123; Filename = ABC0000123.txt.)
 OCR for redacted files in multipage .txt format. Each
file should be named the same as the Bates number of
the corresponding document. (I.e. Bates number =
ABC0000123.tif; OCR Filename = ABC0000123.txt.)
 Load file(s) for native/near-native, images, extracted
text and OCR files should be produced in
Concordance database format if reasonably possible.
(b)

Native files: Spreadsheets and files that are not usable in
image format should be produced in native or near-native
format and named the same as the Bates number. (I.e.
Bates number = ABC0000123; Filename =
ABC0000123.xls for MS Excel document.)

(c)

Metadata fields: The parties should provide the
following metadata for all ESI produced, to the extent
such metadata exists: Custodian, Native File Path, File
Name, Email Subject, From, To, CC, BCC, Date Sent,
Date Modified, Control Number Begin, Control Number
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End, Attachment Begin, and Attachment End. (Not all of
the foregoing metadata may be available for ESI
produced by the City.)
(d)

Electronic data should be produced using hard drives that
will be shipped to the party requesting the data.

(6)

Cost allocation. When requests for production of ESI that are
not reasonably accessible without undue burden or cost are
served, the party asked to produce the ESI should be allowed to
move the Court for an order that requires the requesting party to
pay the reasonable expenses of producing the ESI.

(7)

Privileged and protected ESI. The parties should be able to
reserve the right to withhold any relevant ESI subject to a
common law or statutory privilege.

5.

Mediation. Mediation has already been conducted in this case, with
Jonathan Harkavy serving as the mediator pursuant to the Court’s 21
September 2011 Order. After working diligently with the Plaintiffs and the
Duke Defendants in attempts to reach a settlement, Mr. Harkavy declared an
impasse.

6.

Preliminary Deposition Schedule. The Defendants propose the following
schedule for depositions:
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a.

Because the entire discovery period proposed is about 7 weeks (for
the purposes of allowing sufficient time for expedited briefing and
decision of motions for summary judgment as discussed below) and
many of the witnesses the Duke Defendants anticipate the Plaintiffs
will want to depose have calendars that are booked months and even
years in advance, the Duke Defendants are concerned about
coordinating schedules of counsel and witnesses with respect to
depositions. Accordingly, the Duke Defendants have identified the
following witnesses whom Plaintiffs reasonably might want to depose
and have collected dates on which these witnesses are available to be
deposed. The Duke Defendants are proposing these dates to facilitate
the discovery process and minimize scheduling conflicts.
 Richard Brodhead: 17 June 2014; 18 June 2014
 John Burness: 13 June 2014; 16 June 2014; 20 June 2014; 23
June 2014; 25 June 2014
 Victor Dzau: We are working with Dr. Dzau to obtain available
dates and will provide those promptly.
 Larry Moneta: 19 June 2014; 26 June 2014
 Robert Steel: 9 June 2014; 10 June 2014

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Likewise, to facilitate scheduling, the Plaintiffs should be required to
provide at least two dates within the discovery period on which each
of them can be deposed.
b.

The Defendants should be able to depose the experts retained by the
Plaintiffs before having to produce their own expert disclosures. The
schedule proposed above so provides.

7.

Other items.
a.

Written Discovery: Because the period for discovery is short, the
Court should order that the time for responding to written discovery
should be expedited as allowed under Rules 33(b)(2), 34(b)(2)(A),
and 36(a)(3) of the Federal Rules of Civil Procedure. The Court
should order that responses to all written discovery should be served
electronically on opposing counsel within 20 days of actual receipt of
the discovery requests, rather than the 30 days (plus three days for
service by mail) allowed under Rules 33, 34, and 36.

b.

Summary Judgment
(1).

Under LR 56.1(b), a party has 30 days following the close of
the discovery period in which to file dispositive motions.
Under LR 56.1(d), a party opposing the dispositive motions
must file its opposition within 30 days, and the party filing the
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dispositive motion then has 14 days in which to file its reply.
When the 3 additional days that are allowed for service are
included and assuming that each party takes the full time that it
is allowed under the Local Rules, if the discovery period ended
on 15 July 2014, then any dispositive motion would not be ripe
for decision until 3 October 2014, a mere 2 calendar days (0
business days) before the 6 October 2014 trial date.
(2)

To allow for the longest possible discovery period while still
preserving time for briefing of summary judgment motions and
decision of those motions before trial, the Defendants propose
that
(a)

Any dispositive motions be due within 14 days following
the close of the discovery period.

(b)

Any responsive briefs be due within 21 days following
service of the dispositive motions and briefs, and that the
3 additional days allowed for service not be allowed,
such that any responsive briefs are due in a true 21 days.

(c)

Any reply briefs be due within 7 days following service
of the responsive briefs and that the 3 additional days

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allowed for service not be allowed, such that any reply
briefs are due in a true 7 days.
(d)

This proposed schedule would provide the Court with 40
calendar days (24 business days) during which to decide
any dispositive motions.

c.

If any party seeks to request leave to join additional parties or amend
the pleadings, the Court should consider, inter alia, whether the
granting of leave would delay trial, as well as the dictates of Rule 16.
Because the original complaint in the McFadyen case was filed over
six years ago, has already been amended twice, and has been the
subject of extensive motions to dismiss, the Defendants contend that
good cause should be shown under Rule 16(b) for any amendment
and/or the addition of parties that occurs at any point from this date
forward.

d.

Because fact discovery has closed on Counts 21 and 24, no additional
fact discovery, including but not limited to questioning during
depositions, should be allowed on those counts.

e.

By the written consent of counsel for the Plaintiffs, the City, and the
Duke Defendants, the parties should be able to agree to modify this
Rule 26(f) Report without the consent of the Court, except that the
30

close of discovery should not be changed by consent of the parties
without the consent of the Court.
f.

The protective order that was entered in this case on 24 July 2012 [DE
283] should remain in effect during this second phase of discovery
and should apply to discovery provided/produced by the City. In this
regard, criminal investigative files and employee personnel records
shall retain their confidential status as provided by applicable North
Carolina law and subject to the protective order.

g.

The parties have discussed special procedures for managing this case,
including reference of the case to a Magistrate Judge on consent of the
parties under 28 U.S.C. §§636(c), or appointment of a master: The
parties do not consent to either procedure.

h.

The Defendants anticipate that trial of all of the counts in McFadyen
that survive this Court’s Orders of 31 March 2011 and 20 May 2014,
is expected to take 3 weeks.12 A jury trial has been demanded.

12

Please see preceding notes 4-6. This estimate is based on the articulation
of Plaintiffs’ claim(s) comprising Count 41, and it remains the City’s position that
such articulation is insufficient and defective.
31

This the 20th day of May, 2014.

/s/ Dixie T. Wells
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]

/s/ Reginald B. Gillespie, Jr.
Reginald B. Gillespie, Jr.
N.C. State Bar No. 10895
Email: [e-mail]
WILSON & RATLEDGE, PLLC
4600 Marriott Drive, Suite 400
Raleigh, North Carolina 27612
Telephone: [phone]
Facsimile: [phone]

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
1100 Crescent Green, Suite 200
Cary, North Carolina 27518
Telephone: [phone]
Facsimile: [phone]

Counsel for Defendant City of
Durham, North Carolina

Counsel for Duke Defendants

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CERTIFICATE OF SERVICE
I hereby certify that on 20 May 2014, I electronically filed the foregoing
Rule 26(f) Report of the Duke Defendants and the City of Durham 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 20th day of May, 2014.

/s/ Dixie T. Wells
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 Defendants

33