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Another hearing scheduled for both suits; March 17, 2014
Topic Started: Mar 17 2014, 07:42 PM (309 Views)
Quasimodo

The same order has been posted for both suits (Evans v Durham, and McFadyen v. Duke, Durham)


Quote:
 

ORDER


This matter has been referred to the undersigned to address discovery issues on an
expedited basis while the case is otherwise held in abeyance. The Court will therefore set this
matter for a pretrial scheduling conference on Friday, March 28, 2014. On or before Friday,
March 21, 2014, the parties must meet and confer as required by Federal Rule of Civil Procedure
26(f) and Local Rule 16.1. On or before Tuesday, March 25, 2014, the parties must file Rule
26(f) reports, jointly if possible, addressing the extent of discovery to be conducted and a plan
for completing that discovery on an expedited basis as directed by the District Judge.

It is therefore ordered that this matter is set for a pretrial scheduling conference on Friday, March 28, 2014,
at 10:100 AM . . . The parties must confer by March 21, 2014, and must file Rule 26(f) reports by
March 25, 2014.

Elizabeth Peake
Magistrate Judge


Edited by Quasimodo, Mar 17 2014, 07:57 PM.
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Quasimodo

Quote:
 
to address discovery issues on an expedited basis while the case is otherwise held in abeyance


I have no idea what that could refer to...


Quote:
 
the parties must meet and confer as required by Federal Rule of Civil Procedure
26(f) and Local Rule 16.1.


Right. After stalling for THREE YEARS, and putting off compliance with Rule 26(f) --which
requires a mandatory discovery conference to be held promptly--and due to the direct
intervention of Judge Beaty--

NOW, the court wants prompt action...

This is the same kind of PROMPT ACTION which is called for in the rules,
and which Beaty should have enforced several years ago.
Edited by Quasimodo, Mar 17 2014, 07:50 PM.
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Quasimodo

I'm snarky enough to wonder if this might not be an attempt to pressure one side or the other
as they move towards settlements

(and not to have any doubts as to which side that might be).

(But I could be wrong.) But whenever this sclerotic court wants to "expedite"
matters, my antenna go up.


(purely MOO; the uniformed and cynical musings from the bleachers; speculation; and quite
possibly way off base...)


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Quasimodo


I'm hoping that this is one of the issues that has to be revisited:


Quote:
 
Plainitiff's response 2/14/12

(snip)

C. THE LONE WITNESS DUKE DESIGNATED TO TESTIFY TO THE FEW TOPICS NOT
SUBJECT TO ITS OBJECTIONS WAS NOT PREPARED TO DO SO.

To testify to all of the topics noticed in Part I of the Notice of Duke’s 30(b)(6)
Deposition, Duke designated one witness: Suzanne Wasiolek. With respect to the topics
relating to Plaintiffs’ fraud claim, Ms. Wasiolek had no personal knowledge of any of the
material facts,
reviewed a handful of documents, and spoke with only 4 people. Ms.
Wasiolek had no clear recollection of the documents she reviewed, and she did not interview any of the individuals named or identified in connection with Plaintiffs’ fraud claim.

Instead, Ms. Wasiolek interviewed Sara-Jane Raines (who appears nowhere in Plaintiffs’
Complaint) and an associate university counsel who is not named in Plaintiffs Complaint.
Ms. Wasiolek testified that her interviewees had no personal knowledge of the fraud
Plaintiffs’ allege either. The other two individuals also do not appear anywhere in Plaintiffs’
allegations and were equally ignorant of the material facts as Ms. Wasiolek.

Ms. Wasiolek’s omissions were even more striking:
Ms. Wasiolek did not interview
Sgt. Smith, who requested the DukeCard reports from the DukeCard office and delivered
them to Sgt. Gottlieb. Ms. Wasiolek also failed to interview the DukeCard employee who
produced the DukeCard reports for Smith and Gottlieb.

Ms. Wasiolek appeared oblivious to the correspondence that evinced the fraud and
the agreement among Duke and Durham defendants to cover it up through a bogus
subpoena, and the ensuing fraud on Plaintiffs and the court. For example, Ms. Wasiolek was
ignorant of the communications and transactions culminating in Sgt. Smith’s delivery of the
DukeCard reports to Sgt. Gottlieb, and was even unaware of Sgt. Smith’s April 14, 2006
email directing Sgt. Gottlieb to obtain a subpoena for the DukeCard records that Smith gave
Gottlieb two weeks before, on March 31, 2006.

Ms. Wasiolek also conceded that she had not even reviewed the transcript of Sgt.
Smith’s deposition.


[And Wasiolek is an attorney. Was this an example of "plausible denial? (MOO)]

As a result, Ms. Wasiolek did not know that Sgt. Smith admitted that he
enlisted the aid of a specific programmer in the DukeCard Office (Roland Gettliffe) to
produce Plaintiffs’ DukeCard records; she did not know that Mr. Gettliffe routinely
produced such reports without a subpoena; that the subpoena for Plaintiffs’ records was the
only subpoena for DukeCard data that either Mr. Gettliffe or Mr. Drummond received
before 2006 or since.

Ms. Wasiolek did not know that, after Mr. Gettliffe produced the
DukeCard reports on March 31, 2006, Sgt. Smith obtained Gottlieb’s agreement to obtain a
subpoena for the same records, or that, before the subpoena was issued, Sgt. Smith solicited
Mr. Gettliffe’s agreement not to disclose that he had already given Plaintiffs’ DukeCard
records to Durham Police.

Ms. Wasiolek did not even bother to ascertain the identity of the DukeCard Office
employee who produced the DukeCard reports to Sgt. Smith, and therefore she did not even
know that the DukeCard employee was Mr. Gettliffe. As a result, Ms. Wasiolek also did not
know
that Mr. Gettliffe told Matthew Drummond that he produced the same records sought
by the bogus subpoena that Smith, Gottlieb, Himan and Nifong agreed to issue, and she did
not know
that Mr. Gettliffe did so before Mr. Drummond advised Plaintiffs that their
DukeCard data would be released pursuant to the subpoena unless Plaintiffs’ lawyers filed a
motion with the Court.

Further, because Ms. Wasiolek did not inquire into the policies,
customs, or practices of the DukeCard office, she did not know that Mr. Gettliffe always
notified Mr. Drummond whenever he produced reports of students’ DukeCard data to
police, that Mr. Gettliffe did so as matter of course to ensure that Mr. Drummond would
know that he need not act on a subsequent request for the same information Mr. Gettliffe
had previously produced.

Ms. Wasiolek simply did not prepare to testify on the subjects Plaintiffs identified in
their Cross-Notice – even when those subjects were unilaterally limited to a handful of
topics by Duke’s last second objections. And yet, Ms. Wasiolek swore under oath that no
one else was more knowledgeable or better able than she to testify about the noticed topics
on behalf of Duke University.


Plaintiffs need not belabor the point any further than to simply note that the
transcript of Ms. Wasiolek’s testimony as Duke University’s corporate representative is rife
with variations of “I don’t know.”
Ms. Wasiolek’s consistent lack of knowledge across all
topics on which examination was actually permitted is tantamount to a failure to appear for
the deposition
in violation of Rules 30(b)(6) and 37(d)(1)(A), and as a result, caused a
significant waste of time and resources, and will continue to do so as Plaintiffs undertake to
remedy Duke’s failure.
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