Quote:

 

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.

[I wonder if the public will ever be able to see what has been "preserved"...]

The Court notes that the Duke Defendants
previously filed a Motion for Status Conference 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 regarding the
deposition of Plaintiffs’ counsel in a related case,
which now appears to be moot. [due to the settlement of the Carrington suit]

Plaintiffs’
related Motion for Extension of Time to file a reply brief, Duke’s related Motion
to Strike , and Plaintiffs’ related Motion for Leave to File Reply Brief
are also moot. [for the same reason]

The parties also filed a Consent Motion to Extend Discovery 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. According to a
subsequently-filed Notice, the requested affidavit has been provided, and the Motions therefore
appear to be moot.

In addition, the parties filed Consent Motions 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, seeking to compel additional
discovery from Defendant Duke, and a Motion for Oral Argument 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;

[Well, I believe a more expedited schedule is needed... but I'm just a citizen, not a party...]

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.

[What happened to the original MANDATORY conference on discovery, which was REQUIRED
by the federal rules to
be held shortly after the initial filing; but which was POSTPONED by Judge Beaty?]

Finally, Plaintiffs filed a Motion to Modify Protective Order. 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
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

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.

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

Quote:

 

Lawyers seek evidence exchange in lacrosse case
By Ray Gronberg : The Herald-Sun
gronberg@heraldsun.com
Jul 1, 2008

DURHAM -- Lawyers for three former Duke University lacrosse players falsely accused of rape have complained to a federal judge that city officials are dragging their feet about providing evidence in connection with the players' civil-rights lawsuit.

In a motion filed June 24, lawyers for David Evans, Collin Finnerty and Reade Seligmann asked U.S. District Court Judge James Beaty Jr. to order city officials to sit down for a formal conference to discuss the exchange of evidence.

The move came because the players' legal team wants to start gathering depositions from key officials soon so their testimony "can be preserved before memories fade still further," the lawyers said in their request to Beaty.

They added that the city and its lawyers have brushed off the players' requests for a discovery conference. The most recent refusal came in late May.

The motion was the second one like it to come up in the trio of lawsuits the lacrosse case has generated. Lawyers for 38 unindicted players have also requested a discovery conference.

Federal rules dictate that the parties in a lawsuit meet "as soon as practicable" to plan the work involved in exchanging documents and testimony.

City lawyers haven't responded yet to the motion in the Evans/Finnerty/Seligmann case, but they have answered the one in the 38-player lawsuit. There, they pointed out that Beaty is considering a series of dismissal motions that could undercut much of the players' case.

Given that, the judge "should not require the parties to begin the costly process of full discovery before the contours of [the players'] claims have been decided," the city's legal team argued.

[Why don't we wait another couple of years so Beaty can ruminate on it a bit more? (Where was Brendan Sullivan to fight like a tiger to end this kind of stalling?)]

Beaty is considering a similar set of dismissal motions in the Evans/Finnerty Seligmann case.

Officials are claiming governmental immunity for some of their actions, and that the independent decisions of a grand jury and former District Attorney Mike Nifong to press on with what proved a bogus prosecution shield them from responsibility.

City officials are known to have promised to preserve e-mails and other computer-generated documents.

[Except that they have also claimed they might not be able to find anything prior to Aug. 2007...]

But that "represents only a fraction of the evidence in this case, and prompt action is required to preserve other types of documents and to preserve witnesses' testimony," the Evans/Finnerty/Seligmann legal team argued in their motion.

Documents associated with the case indeed have proven to have gaps, suggesting that the full story of how city officials investigated the lacrosse case will emerge only from testimony.

For example, the notes of the lead detective in the case, former Durham Police Department Investigator Ben Himan, omitted mention of key meetings with City Manager Patrick Baker and Mayor Bill Bell that occurred before police and Nifong planned a key photo-ID session for the exotic dancer who lodged the false rape charges.

Meanwhile, on Monday court officials relayed to Beaty the record of a hearing on whether federal bankruptcy law should shield Nifong from the Evans/Finnerty/Seligmann lawsuit.

[That was the claim of $180 million in liabilities. Did Sullivan, Emery, Scheck, or other big names have a comment about that? Bankruptcy proceedings are not supposed to be permitted as a ruse to stall a case. Suspending a case is not automatic if there is suspicion of ulterior motivations. But did it matter to the big name attorneys if the case was stalled another ten months? Was Judge Beaty supposed to be impressed by
their silence? Or was that just accepted as part of the game, and since they
expected Duke would pay off anyway in the end, nothing that happened in between the filing and the settlements really mattered to them? (entirely MOO, of course)]

Nifong claimed that he didn't have sufficient assets to pay a large award to the players.

But a bankruptcy judge, William Stocks, ruled that most of the claims the three players have made against the former prosecutor belong in front of Beaty.

Nifong plans to appeal that ruling.