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Depositions, depositions...; what to expect next?
Topic Started: Apr 8 2011, 01:23 PM (4,291 Views)
chatham
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I am wondering some if any of the Duke defendants, such as Dean Sue, will say that because the parents of the LAX players decided to hire their own lawyers rather than take Dean Sues advice and use Covington, then that was one reason for everything getting out of control and going in the direction it did by gottlieb, nifong and himan. I suppose she could claim that the "fix" was in (only minor charges) with her lawyer recommendation and the whole thing went haywire when gottlieb found out that the kids started hiring their own lawyers. Didn't gottlieb or someone say something about that? We don't have covington around to answer any of those questions.
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MikeZPU

All good stuff, Walt! Thanks for sharing all that!
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cks
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Walt-in-Durham
Apr 9 2011, 12:27 PM
cks
Apr 9 2011, 11:25 AM
I would think that Dean Sue should and would be deposed. Since she was not acting in a legal capacity (as the lawyer of record for the students) it would seem that she can not hide behind the confidentiality screen.
I double dog dare Dean Sue to assert the privilege. She got grieved by Walter Abbot and beat the grievance by claiming she was not acting as an attorney. Now if she asserts the privilege, she'll be getting a first hand view of the inside of the Guilford County lockup. Not only will the bar revoke her license for perjury, they will demand she be prosecuted for it. Lying to win your disciplinary case will provoke the bar beyond all comprehension.

Walt-in-Durham
I have to admit, next to seeing Nifong and Brodhead doing the perpwalk and in lock-up, nothing would warm the cockles of my heart more than seeing Dean Sue being frogmarched through a phalanx of popping flashbulbs and then appearing in too big flipflops and whatever is the suit du jour of a Durham county inmate!
Edited by cks, Apr 9 2011, 01:12 PM.
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kbp

Free Saturday lessons from Walt ...da man!
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abb
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Walt-in-Durham
Apr 9 2011, 12:27 PM
cks
Apr 9 2011, 11:25 AM
I would think that Dean Sue should and would be deposed. Since she was not acting in a legal capacity (as the lawyer of record for the students) it would seem that she can not hide behind the confidentiality screen.
I double dog dare Dean Sue to assert the privilege. She got grieved by Walter Abbot and beat the grievance by claiming she was not acting as an attorney. Now if she asserts the privilege, she'll be getting a first hand view of the inside of the Guilford County lockup. Not only will the bar revoke her license for perjury, they will demand she be prosecuted for it. Lying to win your disciplinary case will provoke the bar beyond all comprehension.

Walt-in-Durham
That is some information that I didn't know.

In the NC State Bar letter to me, Grievance Committee Chairman James R. Fox didn't specify why the grievance was dismissed. That correspondence is floating around somewhere on the LS site.

If your information is correct (and I have no reason to think it isn't), then I must confess to everyone that I am deeply honored that I was able to play some small part in helping exact some justice upon at least one of these malefactors.
:D Egr93: :D Egr93:
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abb
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Here is the thread from two years ago when the grievance letters were published, along with some contemporary conversation on the issue.

http://s1.zetaboards.com/Liestoppers_meeting/topic/1526899/1/?x=50#new
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Deleted User
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Did I miss Levicy's name on the list for depositions?
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sdsgo

abb
Apr 9 2011, 03:02 PM
Walt-in-Durham
Apr 9 2011, 12:27 PM
cks
Apr 9 2011, 11:25 AM
I would think that Dean Sue should and would be deposed. Since she was not acting in a legal capacity (as the lawyer of record for the students) it would seem that she can not hide behind the confidentiality screen.
I double dog dare Dean Sue to assert the privilege. She got grieved by Walter Abbot and beat the grievance by claiming she was not acting as an attorney. Now if she asserts the privilege, she'll be getting a first hand view of the inside of the Guilford County lockup. Not only will the bar revoke her license for perjury, they will demand she be prosecuted for it. Lying to win your disciplinary case will provoke the bar beyond all comprehension.

Walt-in-Durham
That is some information that I didn't know.

In the NC State Bar letter to me, Grievance Committee Chairman James R. Fox didn't specify why the grievance was dismissed. That correspondence is floating around somewhere on the LS site.

If your information is correct (and I have no reason to think it isn't), then I must confess to everyone that I am deeply honored that I was able to play some small part in helping exact some justice upon at least one of these malefactors.
:D Egr93: :D Egr93:
:bd: :bd: :bd:
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abb
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Walt-in-Durham
Apr 9 2011, 12:22 PM
Quasimodo
Apr 9 2011, 10:52 AM
I suppose some of the parties might also want to depose records custodians, of
which there are about 50 in these cases.

(IE, who kept the emails).

If the parties do not agree to more than ten deponents, or if the judge refuses to allow
more than ten, then a lot of information relevant to the actions of the defendants is
going to remain undisclosed, IMHO.
Not to worry. Plaintiffs' counsel will simply issue a subpoena duces tecum to the custodians of the records and allow them to comply by furnishing all the records in lieu of being deposed. Common practice in large scale litigation. Given the record retention laws in this country and the rather severe penalties for failing to adhere to appropriate record retention rules, Duke, the city and the DPD will produce more rather than less in the way of records. Further, under the federal rules of civil procedure, the defendants have to make a disclosure to the plaintiffs, before discovery begins with all the records they intend to rely on and the names of all persons who hold those records along with copies of the records. So, discovery in federal court begins with a document dump.

In short, in federal court if the other side turns up something you did not disclose in your document dump, it's hello sanctions time.

Walt-in-Durham
Just recently I've had some experience with that type subpoena on a news story that I'm covering in Jonesboro, LA.

http://en.wikipedia.org/wiki/Subpoena_duces_tecum

A subpoena duces tecum (or subpoena for production of evidence) is a court summons ordering a named party to appear before the court and produce documents or other tangible evidence for use at a hearing or trial.
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Joan Foster

abb
Apr 9 2011, 03:02 PM
Walt-in-Durham
Apr 9 2011, 12:27 PM
cks
Apr 9 2011, 11:25 AM
I would think that Dean Sue should and would be deposed. Since she was not acting in a legal capacity (as the lawyer of record for the students) it would seem that she can not hide behind the confidentiality screen.
I double dog dare Dean Sue to assert the privilege. She got grieved by Walter Abbot and beat the grievance by claiming she was not acting as an attorney. Now if she asserts the privilege, she'll be getting a first hand view of the inside of the Guilford County lockup. Not only will the bar revoke her license for perjury, they will demand she be prosecuted for it. Lying to win your disciplinary case will provoke the bar beyond all comprehension.

Walt-in-Durham
That is some information that I didn't know.

In the NC State Bar letter to me, Grievance Committee Chairman James R. Fox didn't specify why the grievance was dismissed. That correspondence is floating around somewhere on the LS site.

If your information is correct (and I have no reason to think it isn't), then I must confess to everyone that I am deeply honored that I was able to play some small part in helping exact some justice upon at least one of these malefactors.
:D Egr93: :D Egr93:
Our Abb!

:bd: :bd: :bd: :bd: :bd: :bd:
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Joan Foster

And Walt, thanks for all your wisdom on this thread.
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Bill Anderson
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Walt, this is most interesting. I remember when Abb filed the complaint and I remembered when it was dismissed. Now, I cannot imagine Dean Sue actually trying to claim legal privilege, since she was not claiming at the time that she was the attorney for the players.

Nonetheless, this was a very bad moment for Duke and an example of very bad judgment on behalf of the administration. (I don't think that DS was acting on her own, and I would love to know where the fingerprints of Brodhead and other administrators were in this situation.) First, an attorney should NEVER tell someone under criminal investigation that he or she does not need an attorney. Second, we already know that Gottlieb and the DPD were planning a trap, getting each player off by himself and trying to trick him and intimidate him to implicate others.

Nifong was disbarred in part because of his statement to ESPN that people who haven't been charged with anything don't need lawyers. DS might claim that she did not know it was a trap and that the players would have had Wes Covington representing them, but that clearly was not the case, either. Covington was covering Duke's interests, not the interests or needs of the players. Given statements that we KNOW came from Larry Moneta and John Burness (not to mention Brodhead's April 5 "letter to the community"), the Duke administration openly was prejudiced against them. Thus, while I don't think that DS openly was trying to get those guys into a trap, nonetheless the EFFECT would have been a hostile administration conspiring with police to falsely incriminate innocent students. Not a good thing.

:bill:
Edited by Bill Anderson, Apr 10 2011, 07:21 AM.
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Quasimodo

Quote:
 
http://www.magerlawyers.com/index.php?option=com_microblog

As was pointed out in Hall v. Clifton Precision, etc., 150 F.R.D. 525 (E.D. 1993):

One of the purposes of the discovery rules in general, and the deposition rules in particular, is to elicit the facts of the case for a trial. Another purpose is to even the playing field somewhat by allowing all parties access to the same information thereby tending to prevent trial by surprise. Depositions serve another purpose as well: the memorialization, the freezing, of a witness's testimony at an early stage of the proceedings, before that witnesses' recollection of events at issue either has faded or has been altered by intervening agents, other discovery, or the helpful suggestions of lawyers.

[IOW, EARLY depositions--not depositions delayed for YEARS--are best.]

The underlying purpose of a deposition is to find out what a witness saw, heard, or did - what the witness thinks. A deposition is meant to be a question - and - answer conversation between the deposing lawyer and the witness. There is no proper need for the witness's own lawyer to act as an intermediary, interpreting questions, deciding which questions the witness should answer, and helping the witness to formulate answers. The witness comes to the deposition to testify, not to indulge in a parity of Charlie McCarthy with lawyers coaching or bending the witness's words to mold a legally convenient record.

It is the witness - not the lawyer - who is the witness. As an advocate, the lawyer is free to frame those facts in a manner favorable to the client, and to make favorable and creative arguments of law. But the lawyer is not entitled to be creative with the facts.

Rather, a lawyer must accept the facts as they develop. Therefore, I hold that a lawyer and a client do not have an absolute right to confer during the course of the client's deposition.
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Walt-in-Durham

Bill, Wes Covington had been Duke's fixer for a long time. But, he and Nifong go way back too. Wes was suspended for 180 days for fixing a DUI when Nifong was consigned to traffic court for some offense against Jim Hardin. Even before that, Covington and Nifong had been ADAs. At the same time as Nifong's disbarment, Covington was censured for conflict of interest. His bar file might make interesting reading.

Walt-in-Durham
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abb
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From the Medical Examiner's report on Covington's death, dated 2/5/10. Date/time of death was reported at 10:20 PM, 2/2/10.

"The decedent was a 59 year-old male who reportedly had an argument with his wife and walked out of the residence. His wife later (10-15 minutes) came outside to walk the dog and found him lying in the snow. He has a single contact GSW to his right head. A .380 handgun was found at his feet. He has a history of depression and was taking Wellbutrin. Per discussion with police there is no suspicion of foul play. The bullet remains within his head certified by plain film."

I can't make out who signed it.

Office of the Chief Medical Examiner Toxicology Folder: T201000862
Chapel Hill, NC 27599-7580 Case Folder: F201001319
Date of Report: 17-feb-2010

DECEDENT: John Wesley Covington

Status of Report: Approved
Report Electronically Approved By: Douglas Smith, MS

S100002025: 6.0 ml Blood CONDITION: Postmortem
SOURCE: Subclavian Vessel OBTAINED: 03-feb-2010

Ethanol -------- 200 mg/dL 02/17/2010
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