MCFADYEN et al v. DUKE UNIVERSITY et al

Filing 403

Rule 26(f) Report (Individual). by BRECK ARCHER, RYAN MCFADYEN, MATTHEW WILSON.(EKSTRAND, ROBERT)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF NORTH CAROLINA
RYAN McFADYEN, et al.,
Plaintiffs,
v.

1:07-CV-953-JAB-JEP

DUKE UNIVERSITY, et al.,
Defendants.

PLAINTIFFS’ RULE 26(f) REPORT & PROPOSED
SCHEDULING ORDER
Conference of the Parties
Pursuant to Fed. R. Civ. P. 26(f) and LR16.1(b), a meeting
was held on May 16, 2014 and was attended by Robert C. Ekstrand
for Plaintiffs; Dixie T. Wells, Dan J. McLamb, and Paul K. Sun Jr.
for the Duke Defendants; Reginald B. Gillespie, Jr., and Kimberly
Rehberg for the City of Durham, and Linwood Wilson, pro se.1
Agreement was not reached by the parties except as noted below;
however, Plaintiffs’ counsel intends to continue to confer with
opposing counsel to resolve the parties’ differences prior to the
hearing on this matter.
Discovery Plan
1. Discovery will be needed on the subjects set out in the
pleadings relating to the remaining claims on which discovery has
not yet been conducted, as set out in the Court’s orders on the
Defendants Rule 12 motions and summarized in the chart below.
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Linwood Wilson has since been dismissed from this action.

Claim

Defendants

Count 18:

Steel, Brodhead, Dzau,
Burness, and Duke
University

Common Law Obstruction of
Justice and Conspiracy
Count 41:

City of Durham, North
Violations of Article I and Article Carolina
IX of the North Carolina
Constitution and Conspiracy
2. The parties agreed that the protective order entered in the
first phase of discovery in this case should continue to govern
discovery in the upcoming second phase, except that the City and the
Duke Defendants expressed their belief that the protective order
should include a specific provision authorizing the parties to disclose
materials that are otherwise protected by HIPAA and by North
Carolina statutes governing disclosure of personnel records.
Plaintiffs believe that the existing protective order is sufficient to
address the requirements of those statutes, however, Plaintiffs do
not object to supplementing the existing protective order with
specific provisions authorizing the disclosure of personnel records
and protected health information, so long doing so does not delay
discovery of those materials. In that regard, discovery should not be
delayed by any party’s belief that any protective order beyond the
existing protective order is required in connection with any discovery
request. Rather, to protect any such interest in confidentiality
without delaying discovery, Plaintiffs propose that the Court adopt

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the provisions of LR 102.2 to govern discovery of any matter that any
party believes is not sufficiently addressed by the existing protective
order.
3. Plaintiffs propose the discovery plan set out below.
a. The appropriate plan for this case with the modifications set
out below is that designated in LR 26.1(a) as: Exceptional.
b. Modifications to the case management track include:
i. Duration of Discovery Period: June 2, 2014September 1, 2014.
ii. Number of Depositions: Each side is authorized to
depose a total of 60 persons, with entities counting as one person for
purposes of this provision, regardless of the number of individuals
the entity designates to testify on its behalf.
iii. All other discovery shall be governed by the Federal
Rules of Civil Procedure.
c. Initial disclosures required pursuant to Fed. R. Civ. P.
26(a)(1) shall be made within 10 days of the entry of this order.
d. The date to complete all discovery (general and expert) is:
September 1, 2014.
e. Reports from retained experts under Rule 26(a)(2) are due
from Plaintiffs by July 29, 2014, and from Defendants by August 12,
2014.
f. Supplementations will be as provided in Rule 26(e) or as
otherwise ordered by the Court.

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g. The use of interrogatories should be governed by the
Federal Rules of Civil Procedure.
h. The use of requests for admission should be governed by
the Federal Rules of Civil Procedure.
i. For purposes of determining how many depositions have
been taken, each Rule 30(b)(6) deposition shall be counted as a single
deposition, without regard to the number of witnesses who are
designated to testify on behalf of the corporation and/or municipality.
j. The Parties agree that depositions may be taken at any
time during the discovery period and Plaintiffs propose that all
depositions be conducted in North Carolina.

Summary Judgment
Motions for Summary Judgment shall be filed by September 2,
2014, with the notice of intent to file motion for summary judgment
due on or before August 15, 2014. Responses shall be filed by
September 16, 2014. Replies shall be filed by September 23, 2014.

Mediation
Mediation should be conducted as early in the discovery process
as practicable. Plaintiffs propose that the mediator be John Harkavy.

Electronically Stored Information (ESI) Protocol
Plaintiffs propose that issues concerning ESI not be addressed in
the Court’s Order, as the parties have discussed concerns and

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proposals concerning ESI and have agreed to try to resolve them by
agreement. Issues concerning ESI may be raised by the Parties in
due course to the extent that becomes necessary or in the event that
an agreement resolving all of the existing concerns of the parties
cannot be reached in this matter.
Other Items
The parties should be permitted to join additional parties or
amend the pleadings upon the Court’s determination of, inter alia,
whether the granting of leave would delay trial.
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 did not come to any agreement as a result of
those discussions.
A jury trial has been demanded. The parties discussed and have
agreed that the trial of the action is expected to take approximately
15 business days.
The parties agree that they should be permitted to modify this
Initial Pretrial Order without the consent of the Court, except that
the close of discovery and deadlines relating to any summary
judgment motions may not be changed without the consent of the
Court. The Parties shall, however, provide notice to the Court of any
agreement to modify any of the other terms.

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Respectfully submitted.
/s/ Robert C. Ekstrand
Robert C. Ekstrand
N.C. State Bar No. 26673
110 Swift Avenue, Second Floor
Durham, North Carolina 27705
E-mail: [e-mail]
Tel. [phone]
Fax [phone]
Counsel for Plaintiffs
/s/ Stefanie Sparks Smith
Stefanie Sparks Smith
N.C. State Bar No. 42345
110 Swift Avenue, Second Floor
Durham, North Carolina 27705
E-mail: [e-mail]
Tel. [phone]
Fax [phone]
Counsel for Plaintiffs

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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF NORTH CAROLINA
RYAN McFADYEN, et al.,
Plaintiffs,
v.
1:07-CV-953-JAB-JEP

DUKE UNIVERSITY, et al.,
Defendants.

CERTIFICATE OF SERVICE
I certify that on the date stamped below, the foregoing Plaintiffs’
Rule 26(f) Report & Proposed Scheduling Order was electronically
filed with the Court’s CM/ECF System, which will issue a Notice of
Electronic Filing (NEF) to counsel of record for every party
registered to receive NEFs through the Court’s CM/ECF System. I
further certify that every party to this action has at least one counsel
of record registered to receive NEFs in this action.

/s/ Robert C. Ekstrand
Robert C. Ekstrand
Counsel for Plaintiffs

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