Saturday, March 01, 2008

More on Duke's Peculiar Motion

As noted below, yesterday Duke filed a motion requesting that the "Duke Lawsuit" site be shut down, and also suggesting that the unindicted players' lead attorney, Chuck Cooper, violated ethics rules in holding a Washington, DC press conference to announce the suit.

The stated rationale for the request is Duke's alleged concern that the publicity generated from the press conference could poison a jury pool in Greensboro, North Carolina. Leaving aside the fact that the ethics rule in question seems to allow the kind of remarks made by Cooper--which were designed to counter negative publicity "not initiated by the lawyer or the lawyer's client"--there are certainly less drastic ways (voir dire comes to mind) than a gag order or sanctions to deal with publicity from a Washington, DC press conference.

Even stranger, however, is Duke's demand that the website be shut down. Duke has its own website on the case, placing its own positive spin on the actions of the administration that are at issue in the civil suit. For instance, one item cited in the lawsuit is Richard Brodhead's April 5, 2006 decision to cancel the lacrosse season. The Duke website claims that "concerns including the safety of Duke’s players" played a role in Brodhead's decision. Yet there is no contemporaneous evidence--at least available in the public record--to bolster that assertion.

Similarly, the website includes a link to Brodhead's statement announcing the season's cancellation--which doesn't mention the players' (and now plaintiffs') safety--but does state that Brodhead's knowledge of "reports of persistent problems involving the men’s lacrosse team, including racist language." Yet, as the Coleman Committee subsequently discovered, there was no evidence to justify an assertion of "persistent problems . . . including racist language" [emphasis added] on the part of team members. Duke keeping this statement on its website, it would seem, could do far more to bias a potential jury pool against the lacrosse players than anything on the Duke Lawsuit website could do in the other direction.

So, Duke's official position is: it should be allowed to maintain a website that (a) contains a highly damaging false assertion on the players' character by the president; and (b) places a pro-Duke and seemingly unsupported spin on one of the items in the lawsuit that's--but the unindicted players should be forced to take down a website whose most prominent item is a copy of the civil suit itself.

That is, indeed, a most peculiar standard.

62 comments:

mac said...
This comment has been removed by the author.
miramar said...

I think that KC and other bloggers have taught Duke the power of the internet. It was much easier for them when they could simply put out press releases, accurate or not, and no one would respond.

BTW, is there a Guiness record for the most lawsuits filed against a college president? Or the amount of settlement money a college has paid out under one president? If not, I think it's time to start those categories.

Anonymous said...

One wonders why do they persist in this charade? How about saying we screwed up, we apoligize to the players and their families, and we will settled this matter. We support an independent investigation of why three students and their teammmates were put through hell over a crime which never happened.

Nope, let's draw it out for a couple of years and be clowns. We can pay the attorneys lots of money and embarass this University to protect a few Senior Officials.

Debrah said...

H-S:

Cost to attend Duke going up by 4.8%

By William F. West : The Herald-Sun

Mar 1, 2008

DURHAM -- The cost to attend Duke University is going to increase by nearly 5 percent this fall, but administrators are quick to say trustees approved a 28 percent increase in support for financial aid.

"High-quality education is a costly thing," University President Richard Brodhead said Friday after the trustees approved the hike and upped the assistance.

The total estimated yearly cost to receive an education from Duke, including room and board, will be $47,985, a 4.8 percent increase.

"And our tuition increase recognizes only a portion of the cost. Every student who comes here gets the benefits of investments the university makes that go far beyond what tuition pays for," Brodhead said. "What I really hope you will recognize is there are two significant figures."

The president said Duke expects to increase undergraduate financial aid expenditures by more than 17 percent to roughly $86 million in 2008-09.

"What we're saying is: For those who could pay the full price, we ask you to do so. And for those who can't, we want to make a Duke education affordable to you," Brodhead said.

Brodhead said while the 28 percent draw from endowments may make some scratch their heads, the university has received a greater return on investments and intends to spend a higher rate of money from an increasing amount of gifts.

More than 40 percent of Duke's undergraduates receive need-based aid to help decrease their college costs.

Trustees Chairman Robert Steel said Duke "is part of a relatively small cohort of schools that is need-blind. We make an admissions decision separate from any financial decision.

"Once someone is accepted at Duke, then we get the students that we've invited to connect with financial aid. And we have more of it and the pot is bigger so that we hope that more and more will come," Steel said.

Tuition for undergraduates in the Trinity College of Arts and Sciences and the Pratt School of Engineering will be $36,065 for 2008-09, up 5 percent from $34,335 now.

About 82 percent of Duke's undergraduates are enrolled in Trinity and 18 percent in Pratt.

The trustees also approved new tuition rates for graduate and professional schools, as follows:

* Divinity School, $16,570, a 4.5 percent increase.

* Fuqua School of Business, $44,100 (daytime MBA student), a 5.8 percent increase.

* Graduate School, $36,190, a 6 percent increase.

* Law School, $42,160, a 5.5 percent increase.

* Nicholas School of the Environment and Earth Sciences, $27,600, a 3.8 percent increase.

* School of Medicine, $41,126, a 5.5 percent.

* School of Nursing, $36,900, a 13.9 percent.

In other business, the trustees approved a resolution prohibiting Duke from making direct future investments in companies doing business with Sudan. U.S. sanctions have been in place since 1997 against Sudan, which the State Department has deemed a terrorist sponsor. It has also been condemned internationally for treatment of its minority populations in Darfur.

Although Duke does not have any direct holdings there, the university wanted to go on record symbolically in the matter, Brodhead said.

In other business Friday, the trustees approved:

* Construction of a new 1,900-space parking garage at the southeast corner of Erwin Road and Research Drive, adjacent to the Duke Eye Center.

* Renovations to the Few Quad residence halls, including renewed and relocated commons rooms, infrastructure work and the addition of a complete fire-protection system.

* Renovations to the Nanaline Duke Building on Research Drive, the Medical Center Library and the Teer Engineering Library Building. Approval also was given to renovating the Smith Building on South Buchanan Boulevard to provide work and support space and offices for Perkins Library's technical staff.

* Expansion of the Duke Clinical Research Unit in the Duke Clinics Building on West Campus and the Cord Blood Bank on Pratt Street.

Debrah said...

H-S:

Duke contests publicity of lacrosse suit

By Ray Gronberg : The Herald-Sun
Mar 1, 2008

DURHAM -- Lawyers for Duke University have attacked efforts by 38 current or former members of Duke's men's lacrosse team to publicize their lawsuit against the school.

In a federal District Court filing, Duke contends the players' legal team violated state and federal ethics rules by using a news conference, news release and Web site last week to announce the lawsuit.

All three were likely to prejudice court proceedings in the case, given that the players want a jury trial, Duke's lawyers said in their filing.

Given the obvious attempt to marshal sympathy for the players, justice demands a judge's "direction and guidance as to whether there are any limits on such attorney-initiated media contact," the filing said.

Court clerks responded by scheduling a March 20 hearing on the school's motion.

The school didn't specify exactly what it wants federal District Judge James Beaty Jr. to do, other than declaring last week's publicity effort a violation of ethics rules. Beyond that, the filing said, the proper response is what "the court deems appropriate."

Federal rules give a judge considerable latitude in such matters. Their power includes the right to order a disciplinary investigation or refer the matter to the N.C. State Bar.

Duke's Thursday filing invoked one of the same ethics rules that figured in former District Attorney Mike Nifong's disbarment last summer.

The rule -- laid down by the State Bar and adopted without change by the federal judges who hold jurisdiction over Durham -- forbids lawyers from making out-of-court statements they know will attract publicity and "have a substantial likelihood of materially prejudicing a [court] proceeding."

The rule includes exceptions for, among other things, statements detailing a client's formal legal claims or that discuss information in the public record.

The bar also makes an exception for statements "required to protect a client from the substantial undue prejudicial effect of recent publicity" initiated by others.

Those exceptions are certain to figure in arguments during the upcoming hearing. Indeed, the lawsuit's primary contention is that Duke and city officials did and said a lot in the spring of 2006 to poison public opinion against the lacrosse team after a stripper falsely accused three of their teammates of rape.

In their filing, Duke's lawyers tried to get a jump on one possible countering argument, namely that last week's news conference by Washington, D.C., attorney Charles Cooper merely detailed players' claims.

While Cooper basically read aloud the introduction to the lawsuit, it featured such "incendiary language" that he "should not be permitted to hide behind" its "highly prejudicial" words, Duke's lawyers said.

They also noted that in 1998, the State Bar issued a clarifying rule that said a lawyer can't get around the rule by allowing others to make statements for them.

The obvious target of that point was a Washington-area public-relations agent who's working as the players' spokesman: Robert Bork Jr., the son of the rejected U.S. Supreme Court nominee and former federal appellate judge. Bork is running the disputed Web site.

However, the same 1998 opinion by the bar said out-of-court statements in civil cases are "generally not as strictly scrutinized" as those in criminal cases. It also underscored the exceptions for publicity based on material in the public record and for statements countering previous adverse publicity.

Bork didn't answer an e-mail and two phone calls seeking a response from him late Friday afternoon.

Anonymous said...

Does Duke believe that, assuming they can shut the site down, no one will put up a site with comparable information?

The site is simply a place to go and view publicly available information. That information is not going away even if the attorneys for the plaintiffs are not allowed to have the site.

Could be envy. The Duke Lawsuit site probably gets far more traffic than the Duke Univ site.

Anonymous said...

I was not aware of the Duke website about the case until now. Of course elements of this website contain false information that is prejudicial to the players. Irony on top of irony. One wonders if the lawyers filing this latest motion for Duke knew about Duke's own website.

How strikingly at odds the Bowen-Chambers report is with the Complaint. The Bowen-Chambers report seems to hold the DUPD primarily responsible
for Duke's failure to respond more quickly to the growing pr nightmare and especially President Brodhead's failure to appreciate the "serious" nature of the allegations--which I read to mean the "highly credible and racially charged" nature of the allegations. (As we know, many seem to have conflated "highly credible" with "racially charged" and in fact the allegations gain credibility only BECAUSE they are racially charged). Yet, the Complaint seems to indicate that the administration (Brodhead/Steel) spent the time straightening the DUPD out about the credibility of the accusations and giving the DUPD some emergency diversity/sensitivity training--in much the same way the DPD did for Officer Shelton. This "training," of course, took place long before Mr. Nifong got hold of the case and went berzerk. For the integrity of the Bowen-Chambers report it was pretty crucial to get the facts of what happened during that nearly two week period completely correct.

Can it be that, as the report asserts, President Brodhead and other key administrators were kept so ignorant of the details, such as the race of the accuser, for nearly two weeks while the DUPD scrambled to obscure and distance itself from its initial impressions and reports? Does this make any sense?

Yet Bowen and Chambers state that they believe nothing had been held back from them. This report must be deeply embarrassing to them now.

Observer

Debrah said...

This is a funny story. You have to admit...Nifong is not exactly a common name.

Could be a long, lost relative.

Perhaps she would hire Mikey part-time.


H-S:

Mortuary intern finds niche

By Allison Miller : The Herald-Sun
Mar 1, 2008

CHAPEL HILL -- Like thousands of other 20-somethings, Veronica Nifong is in Chapel Hill to learn skills that will help her in her chosen career. But UNC doesn't offer what she's looking for. She wants to be a funeral home director.

Nifong, 25, is an intern at Walker's Funeral Home at 120 W. Franklin St. She embalms bodies, comforts families, sells urns and caskets and drives the hearse.

"People tend to perceive this profession as borderline scary and gross," she said.

She said that isn't true. She got into the funeral business because she enjoys helping others.

"We're just like anybody else," she said. "It's another day at work."

Nifong, who lives in Greensboro, quit her job working in a hospital emergency room to start her journey toward becoming a licensed funeral home director. Funeral directors are responsible for planning funerals and visitations, comforting the families, picking up and preparing the bodies.

Nifong graduated from Fayetteville Technical Community College last May. She completed a two-year program in funeral direction. FTCC is the only college in North Carolina that offers the program.

"My parents were mortified when I wanted to go to mortuary school," she said. Her parents asked her what they had done wrong in raising her. Later they became more understanding, she said.

For the funeral-direction program she took ethics, law, anatomy, chemistry and religion. She also studied embalming and restorative art -- using wax to fix damage a body suffered in an accident.

Chuck Harker, a funeral director at Walker's Funeral Home who attended Gupton-Jones College of Funeral Service in Atlanta, said the first time he saw a corpse it bothered him.

"It kind of made me a little queasy," Harker said. "But I got over it."

After graduating from mortuary school, Nifong was required to complete a year-long internship before she can be licensed by the N.C. Board of Funeral Services. She had trouble finding a funeral home willing to hire her.

"Nobody really wanted to give me that opportunity," Nifong said. "It's hard for a young female to get a job [in the funeral industry]."

She said funeral direction has traditionally been a male-dominated business, although this is changing.

"I think women are really coming into this profession," Nifong said.

In November, she was hired by Walker's Funeral Home. Her male co-workers, she said, are very accepting of her. She said the only other woman who works at the home is Elizabeth Walker, the owner.

Walker's Funeral Home has been on Franklin Street since 1937. The Walker family owns two other funeral homes, in Hillsborough and Mebane. The Chapel Hill home handles about 200 funerals each year.

Adjusting to the job isn't easy.

"Who the heck would want to go to a job where you have to work 24 hours a day, seven days a week?" asked Keith Howerton, a funeral director at Walker's. "About the time you get in bed and get warm, the phone rings."

The funeral home takes calls at all hours of the day and night. The employees at Walker's said this is the biggest drawback of the job. Nifong has learned not to make too many plans for the weekends. She knows she will be called in to work when viewings and funerals are scheduled on her days off.

Nifong also acknowledged that being around grieving people sometimes upsets her.

"It's really hard to watch someone go through that pain and that loss," she said. "Some days are harder than others."

Nifong has also discovered that her profession can make social situations awkward.

She said she sometimes tries to avoid telling new acquaintances what she does for a living because people seemed shocked or unsure of what to say.

Nifong and funeral director Harker agreed that their favorite part about working at the funeral home is helping people thorough a difficult time.

Harker said he has experienced difficulties dealing with families.

"You get a lot of people who are mad because their mom or dad is dead, and they take that out on you," he said.

Dealing with the death of a loved one is an emotional time for families. Nifong has learned to tread cautiously.

"The most important thing is never telling anyone, 'I'm sorry for your loss,' " Nifong said. "You don't really know what their loss is."

She said some people at a funeral are mourning the loss of someone close to them. Others may be there out of a sense of obligation. But no one can understand what a family member or friend is feeling, she said.

Instead, she tells them that she can't imagine what the family is going through.

"You're working for the family in this profession," she said.

Anonymous said...

I have re-read Brodhead's "letter to the community," and there is nothing in it that would indicate anything close to the website's claim that it simply was looking after the safety of the lacrosse players.

The letter all but implies guilt; however, it says nothing about the conduct of Tara Levicy, a Duke employee. It says nothing about the wanted posters, the campus hatefests aimed at the players, and all of the other things that were done at Duke to make the players look guilty.

Furthermore, the Bowen-Chambers Report is a sham, and to link a report in which the principals interviewed ONLY the most hateful critics of the lacrosse players like Houston Baker and Karla Holloway is dishonest at best and deliberately deceitful at worst.

This latest salvo from Duke tells us that Duke never intended to be fair at all. Brodhead and the campus radicals saw this as an opportunity for them to impose a hard left social agenda at Duke, and jumped into it with both feet.

We also know now that Duke University did everything it could to aid Nifong and the police in framing innocent people, all in the name of "Campus Cultural Initiatives" and Political Correctness. That was the agenda, and it seems that Duke is not veering from its initial course of action.

Also know that Duke's defense is going to be to slime the players and families and try to re-attach the "hooligans" tag on them. Doing the right thing apparently was not in Duke's lexicon in 2006, and it is not in 2008.

W. R. Chambers said...

Re: Duke's website

1. It makes no reference to the new case.
2. It does not appear to have been generated by a lawyer and therefore does not violate the Rules of Professional Conduct.

Therefore, although a small point, I don't think comparing the two websites is fair. Under the law, as at least I understand it, there is no question that the Duke website is not covered by the Rules of Professional Conduct while there may be some question about the dukelawsuit. com website, which I find very interesting and helpful. I suggest Duke put up its own website following the format that Bork uses.

There's a difference between basically repeating the allegations of a complaint or answer and attacking the credibility of witnesses and evidence.

Anonymous said...

Duke should not be involved in this case except on the side of the lacrosse players . . . what . . . truth, justice, and the American way? What is going on here when an American university of Duke's supposed stature is all slapped-up with the tarbaby of manipulation and dishonesty before the law. The wretchedness of their employees' supported racism and purpose is an awful thing to watch.

Timothy Murray said...

It is most ironic that Duke is only now conerned about adverse publicity after allowing innocent students to be mistreated by its faculty. The fact is, Duke is the gratuitous author of its own disatisfaction.

KC Johnson said...

A clarification item:

The Duke Lawsuit website was put together by a publicist--who, as with the Duke public relations department, wouldn't be subject to the Rules of Professional Conduct.

(Of course, Duke could argue that the publicist should be so subject--but that would make Duke's website also subject.)

traveler said...

“Quackademics” That is a good word from this interesting medical standpoint blog. The doctor was misquoted by Miriam Cook, his quest for a correction, led him to Duke, the lacrosse scandal, and KC Johnson’s D-I-W, which he praised. Even the comments to the article are telling.
---------------------------
Health Care Review (Blog): by MedInformaticsMD

A Truly Appalling Lawsuit Against Duke University

…..“It's not a simple matter of incompetence. "Quackademics" who do not believe in reason and logic - the tools of the "oppressors" - are largely incapable of true critical thinking.

Hysterical rants, semantic trickery, obfuscation they can do. Distortions and mistruths are no problem for them, since in their minds the means justifies the ideological ends. Put plainly, they are deceptive liars“……

…..“Not surprisingly, I discovered that Cooke was a member of the "Group of 88", a group of Duke professors who apparently gave the accused students a behind-closed-doors fair trial (of course, defendants' presence not required), then lined them up and had them figuratively shot with a well-publicized statement implying their guilt.“

Comment: Luddite crazy professors trapped in the past, who think their hegemony over discourse is secure and that the internet technologies can't touch them, had better think again, very hard.

http://hcrenewal.blogspot.com/2008/01/truly-disturbing-lawsuit-against-duke.html

Anonymous said...

An argument could be made that Duke established its website in anticipation of future legal action by the players which Duke had to know was likely once the players were declared innocent.

In any event, it seems that a strong argument could be made that the lawsuit website was established in response to Duke's website which presents a very biased (in Duke's favor ) view of the events. Duke's website states that it should be viewed as an "historical record" which implies it is accurate and truthful--- not the case at all.

Anonymous said...

For Duke, the greatest cost of the lawsuit may come not from the legal bills or from a future settlement but from the negative publicity that will come from the on going public scrutiny of their actions.

As the process goes through discovery, whatever negative information about the university's conduct is turned over to the plaintiffs can result in a potentially damaging news story. Though the story may not have any bearing on the case it could be damaging to the reputation of the university.

This creates a dilemma for the judge. On the one hand, without the gag order, the university could be pressured to make a generous settlement to avoid a constant barrage of negative publicity. On the other hand, the gag order allows the university to continue to evade their responsibility to make amends with the players and delays the restoration of the players' reputations.

The judge may rule in the university's favor. The judgment could be justified by claiming that the pre-trial publicity resulting from the website will "poison" the jury pool and render a fair trial impossible.

Such a judgment would not shut down Lie Stoppers or Durham in Wonderland but it would stop the flow of information from the lawyers. In particular, it will end the public dissemination of information obtained in discovery that would be supportive of the student's claims.

I think this is unfortunate because the primary point of the player's lawsuit is to force some accountability on the part of the university. My impression is that the players and their families were seeking an honest apology for the misery the university had caused them.

In the unfortunate lack of remorse shown in the statements of the administrators and faculty of Duke, one can see there is still no sign that they understand what went wrong. The administration has given concerned members of the Duke community little reason to be reassured that a similar example of political correctness run amok could not occur again.

Shutting down the website will encourage Duke to avoid the necessary soul searching about what they did to the players and delay the implementation of the required reforms. For everyone's sake, including especially the Duke community, I hope the judge leaves the website alone.

Sid said...

As I have seen posted on previous threads, the real issue for Duke is the 88 faculty and the individual administrators. Until the Board of Trustees is willing to deal with the issue of dismissal of most if not all of that group, then the lawsuit will proceed.

Duke will be forced to deal with the faculty who deserve to be terminated. Settling is not possible for Duke. To do so, an in dependent commission would have to recommend the termination of the gang of 88 and many senior administrators. No commission will ever take that step. To get to that point, Duke must fight and lose the lawsuit. Then, by force of financial capitulation an ad hoc committee will terminate the gang and others.

Settling on the issue of Duke Hospital or the DUPD is simple. Firing tenured faculty for failure to follow established university policy is next to impossible.

Once you focus on the faculty issue, you begin to understand the sense of Duke's actions or the logic that it is following.

Steven Horwitz said...

On a side note, the current issue of the Foundation for Economic Education's magazine The Freeman contains an article on the Duke case by Wendy McElroy discussing the issue of why prosecutors can get away with abuses of power:

Prosecutorial Indiscretion.

AF said...

It's a crying shame but a movie probably can't be done with Dickie boy Boardhead as the main character. That's because Liar Liar came out a few years ago. I was reminded as I read of the Duke objection to a scene from the movie--towhit, Jim Carrey objects to a statement by his legal opponent. When the judge asks the basis for the objection, his response is something to the effect that it is detrimental to his case. Boy does that sound familiar to anyone who has been following the Duke Debacle????????????????
Key difference--Jim Carrey's character had an attack of conscience. The Dynamic Dookies (Boardhead, Moneta, et al have no conscience to have an attack with!!
Maybe Dook should hire Addison to be their PR guy!!

miramar said...

There is one unintentionally hilarious comment in the Duke website:

"Duke later modified the status of the two players to 'administrative leave' and, soon after it became clear in court that Nifong’s statements were not credible, invited them to return in good standing, months before Cooper’s decision."

Reade Seligman and Colin Finnerty were indicted in mid-April 2006, yet they were not invited to return to school until early January 2007, or "soon after it became clear in court that Nifong’s statements were not credible." In other words, it took Duke almost eight months to figure out that the charges were bogus. Brilliant!

Gary Packwood said...

miramar 03/01/2008::9:18 AM said...

...I think that KC and other bloggers have taught Duke the power of the internet. It was much easier for them when they could simply put out press releases, accurate or not, and no one would respond.
::
I had to think about that for a moment because Duke has taught me over the years the value of their wonderful web resources when I need information or help with a project.

However, now that you mention it, I don't know if the Duke administration or staff have any understanding at all about the power of the internet or that real people might be so bold as to comment on what administration and staff have to say.

Perhaps the current Duke sophomore class might take on the task of teaching Duke administration and staff that the web is an electronic network of computers that includes nearly every university, government, and research facility in the world.

And sophomores at Duke don't find it particular 'awesome' that other people around the world might wish to actually respond to what they have to say.

A practical application of ...Future Shock...for Duke administrators and staff members courtesy of Duke sophomores.

Priceless
::
GP

Anonymous said...

(rolls eyes) Both Duke and Durham just keep making things worse for themselves.

Anonymous said...

Another argument that can be used by the Plaintiffs is the balance of power and the unequal access to the media. Duke has an entire administrative department dealing with community and public relations. Duke is a political and economic power in the area. How are the Plaintiffs supposed to deal with Duke's ability to tap into the media, especially the local media?

Exhibit A -- The news reports about Duke's motion to close the Plaintiffs' website. Exhibit B -- All of the articles written by, or quoting, Brodhead, Burness, Holloway, Lubiano, Chafe, etc....

Another argument to shore up K.C. Johnson's analogy between the Plaintiffs' and Duke's webstites is that Duke has in-house counsel to go over the material on the Duke website. It is hard to believe that in-house counsel did not carefully vet the material before it was placed on the website.

Perhaps the Plaintiffs should subpoena Duke in-house counsel Pam Bernard to the hearing so that she can testify about how her office dealt with media requests to Duke administrative and faculty personnel. She can also testify about her office's actions vis-a-vis the Duke website.

Finally, the history of the case shows a dramatic anti-lacrosse bias in the media, national and local. Is that going to stop now? [Attach Barry Saunders article here].

Moreover, the local media may be targets for future defamation lawsuits. Should the Plaintiffs have to rely only on that source to provide information to the public?

mac said...
This comment has been removed by the author.
Anonymous said...

As a litigator, my reaction to Duke's motion is somewhat different from many on the blogs. I give the Duke lawyers plenty of credit (I learned long ago that underestimating or dismissing opposing counsel's apparent "silly" motion strategies is potentially case killing) . The Duke lawyers are smart as hell and must have thought very carefully before filing this motion. My intuitive sense of their true objective: to feel out the judge for receptiveness to limiting discovery. The "close the website" motion will provide both sides some insight into whether the assigned judge will be pro-protective order, or pro-open, public access.

A protective order under Rule 26 of the Federal Rules of Civil Procedure allows a party opposing disclosure of documents, information, or testimony to move for an order, after showing "good cause", that the subject information should not properly be within the public documents realm.

It is normally an onerous burden to carry, but it is also judge-specific. Moreover, a judge has very wide discretion in ruling on discovery motions, and such rulings are rarely overturned on appeal.

The defendants have placed front and center the judge's inclinations in this regard. Viewed through this lens, the motion is very smart litigation strategy. If the judge summarily rejects the motion, then I wouldn't be surprised to see the Duke defendants aggresssively seeking a settlement. If the motion is granted, the Duke defendants have some hope that they can move forward with a reasonable likelihood of success in obtaining a protective order that would prevent damaging documents and deposition testimony from being made public.

In either case, and if i am correct, it seems to me that Duke has much to fear if discovery proceeds without protective order limitations.

Debrah said...

The idea that Duke tries to inhibit free speech reminds me of the local newspapers' editorial pages.

Both the H-S and the N&O will not tolerate too much truth or too much reality from the other side.

Anything that is pointedly on the opposite side of their personal ideology will not have much of a voice.

From the start, Richard Brodhead made me sick and things have only descended from there.

Also, after having watched the video at the lawsuit website of the press conference, attorney Charles Cooper revisits just about every item that has been discussed by KC and Stuart and by everyone inside Wonderland.

It's a compelling case; however, many reporters seem to have the Barry Saunders/Bob Ashley disease.

They cannot fathom more lawsuits, especially from those who were not indicted.

Once the underbelly of Duke administrators' actions and inactions are exposed it will be more difficult for apologists and the "move on" crowd.

Lastly, of course Charles Cooper is an excellent attorney with a great résumé, but I simply can't stand his speaking style.

Choppy....not fluid.....constant "uh, uh, uh's" drive me crazy!. He's not a clear and deliberate speaker and I was on the edge of my chair coaxing him at my computer screen to just spit it out!

I can't stand this tentative way of speaking, especially from those who make a living talking.

Compare him to someone like KC or one of the attorneys for Reade, Collin, and David. They speak in a demonstrative way and get to the point.

This Cooper is so irritating to the senses.

W. R. Chambers said...

Re: dukelawsuit.com

Thank you KC for the clarification. Here's my take on why the dukelawsuit.com website - or part of it - may be subject to the Rules of Professional Conduct while the duke website from 2007 is not.

Counsel for the plaintiffs', Charles Cooper,contributed, substantially, to the dukelawsuit.com website by giving a press conference arranged by the publicist, a press conference that is now available on the website. Cooper's excellent advocacy for his clients in the press conference may violate the Rules of Professional Conduct, and raises the question of how much the publicist is part of the team representing the plaintiffs, a team led by Cooper. If the publicist works hand in hand with Cooper the RPC may apply. Cooper won't be allowed to do through a third party what he himself is not permitted to do.

Duke should put up its own website modeled on dukelawsuit.com. Duke's counsel should give a press conference focusing on Duke's response to the complaint.

One reason for Duke's counsel not doing so may be that Duke has no real defense or at least not one that could be publicized without doing more harm than good.

Having been tried and convicted in the court of public opinion, the players are now using the court of public opinion to redress the harm done to them.

Two points:
1. I wonder if DIW was the inspiration for dukelawsuit.com; and
2. I wonder if DIW has fundamentally changed the court of public opinion by creating a public opinion appellate court to which persons vilified in the mainstream media can take an appeal.

mac said...
This comment has been removed by the author.
Joey7777 said...

I almost feel like there's enough juice here, and in what's to come, for a second book.

Anonymous said...

"In either case, and if i am correct, it seems to me that Duke has much to fear if discovery proceeds without protective order limitations."

This has never been about "the truth." It is about Steel and power.

Anonymous said...

If you look at the Duke motion analytically, here are some conclusions you might reach:

1. Is there anything on the site now that would be a violation of NC Rule 3.6? If not, then the motion is a prior restraint of free speech, and those are NOT favored by the courts. Duke loses.

2. Is the website run by Bork or the attorneys? Did the attorneys or the clients retain Bork? The answer to the first question should be dispositive, but if the website is truly run separately from the litigation, this is another reason Duke loses.

3. How can anyone claim that the small website even begins to counteract the hundreds of millions of google hits caused by the false accusations and Duke's response to the false accusations? Just based on a reading of Rule 3.6, Duke loses.

Anonymous said...

Wow. Great insight 8:42. Thanks.

Debrah said...

".....it seems to me that Duke has much to fear if discovery proceeds without protective order limitations."

Of course they do.

That's the whole point and the significance of these new civil suits.

It's telling that so many in the media--especially local--wish to assist Duke in any way they can by trying to minimize the efforts of these lacrosse players and their families to get to the truth.

Some even mocking them.

I want it ALL to come out. We know that Richard Brodhead worked with Durham officials, NCCU officials, and the Gang of 88 to create a Grade B tale so that the agenda-driven Durham community wouldn't tear up the town.

And they certainly would have without the sacrifice of the lacrosse players.

Once news of this Hoax was circulated, all the Triangle "activists" came alive like vampires at a mortuary.

Just sit back for a moment.

Turn off all the noise--TV, CD's, your computer....whatever.

Think about what it took to make this Hoax happen.

Think about the kind of mentality these people must have in order to not only entertain their strained ideology, but to hold onto its seasoned narratives and its phony melodrama knowing that a rape never took place.

Wanting to hold onto that more than the truth.......clawing and clawing into their dark hole to find yet another justification for their actions.

If this case hasn't shown the world just how dangerous the politically-correct lifestyle is, I don't know what will.

Debrah said...

Almost every day the Diva is met with countless outlandish examples of hypocrisy.

Such a drag!

Is it any wonder why she must markedly and vividly point this out constantly.......

......to the detriment of peace and harmony inside The Diva World?

I should think that the high-minded among us would glorify and celebrate such candor.....

......for the Diva is a single Picasso.....lit by a shaft of soft light......her Fauvist colors standing out among the mortuary of audacity!

To wit:

Not long ago, the Diva was criticized for remarks made about the ineradicable Elizabeth Edwards on another lacrosse-participating blog; however.......

........I see that there is no problem at all among those on the same blog with daily innuendo and despicable falsehoods about Obama.

No one says a thing.

That makes the Diva's work all the more delicious when she obliterates such hypocrites!

Anonymous said...

Although I am the one who wondered whether Duke lawyers knew about Duke's own website before filing this latest motion, I agree completely with 8:42's assessment. The Duke lawyers are brilliant strategists, have years of experience, and understand exactly what they stand to learn by their motion. With good reason, they would be most happy to comply with any limitations on releasing information to the public,including shutting down the Duke website about the LAX case.

The Plaintiff's lawyers purport to inform the public about the details of what happened to the Duke LAX team and thereby enhance the probabilities for accountability, and Duke's lawyers will make every effort to protect Duke's reputation, which requires keeping the public as ignorant as possible.

Observer

Anonymous said...

Has anyone tried clicking dukelawsuit.com lately?

RRH

Anonymous said...

The Duke intellectuals and their ilk are very used to controlling the narrative . . . their problem is that they are now dealing with adults and the recorded record of DNA and video tapes and electronic door keys and rape kits that just do not support the narrative that they have contrived. Their's is not the sort of explanation or position that any right, centered, or fair thinking person could or would possibly defend because to do so reveals what a bigoted, racist and mean spirited agenda these people are supporting. This bigoted way of thinking was in place long before the incident in question. It was this mind-set that Nifong was appealing to in order to cover and hide all his other motives and subliminal feelings that he might have had about this case. His thinking refected this, and the Duke intellectual community has long been as racist as it is unfair. The intectual underpinings that have allowed this horror to be maintained explains as much as anything why this university is behaving the way it behaves. Duke actually provided a background for their behavior that is every bit as caustic and racist as anything that existed or was experienced or described in the Scotsboro boys or attempted in killing a mockingbird or the Ox-bow incident where the DukeGroup88 took the place of the lynching posse deputized as it were by their PhD's. The academy as it is represented by the Duke faculty just doesn't see it. To them and their great discredit, their taught fictions and philosophies and histories have come to life in their predjudice and misbegotten behaviors. Shame on you.

Debrah said...

So gratifying to see that Duke's law school is as fascinated with hip-hop culture as 88's Prof-Thug-Intellectual.

They pull out all the stops for the important issues.


H-S:

Discussion series starts this week

DURHAM -- Discussions on immigration reform, America's changing demographics and hip-hop culture will take place over three days in March, as part of Duke University Law School's Jean E. and Christine P. Mills Conversation Series.

All three events -- Wednesday and March 20 and 26 -- are free and open to the public. Each discussion begins at 6 p.m. in Room 3037 at the law school.

Wednesday's discussion on the racial dynamics underlying the immigration debate features Kevin R. Johnson, Mabie-Apallas Professor of Public Interest Law and Chicana/Chicano Studies at the University of California-Davis School of Law. Johnson's new book is "Opening the Floodgates: Why America Needs to Rethink Its Borders and Immigration Laws."

Anonymous said...

Couldn't three congressmen — one from Long Island, one from New Jersey and the one from North Carolina who spoke out — call a press conference on Capitol Hill and demand a congressional investigation of Steel and the Duke administration, the Durham police, DUMC, Nifong, Judge Stephens and the entire District Attorney's office? They could also urge the Justice Department and the FBI to investigate fully.

W. R. Chambers said...

A point about the motion that is not peculiar but possibly of interest - the signature block.

Despite the large number of defendants, only two firms represent them. The breakdown is by corporate entity: one firm represents Duke University and its employees; another represents the Duke University Health Systems, Inc. and its employees.

There are possible conflicts of interest among the named defendants, both individual and corporate.

It is sometimes in the interest of insurance carriers to present a united front.

Sometimes the financial interests of insurance companies conflict with the reputational interests of insureds.

If the amount of coverage is inadequate, there is financial risk for the defendants.

One wonders who is calling the shots for the defendants and whether as things develop the conflicts will become a problem. Also, there is the question of the role played by the Board of Trustees.

As a purely hypothetical matter, would counsel for Duke or any of the Duke employees be permitted to raise as a defense the role played by Duke's Board of Trustees? What if, and I have no reason to believe this is the case, but what if the Board was calling the shots all along?

Anonymous said...

Wonderland indeed.

Anonymous said...

while i am 10000% supportive of the team, i also know the first thing they teach you in civil procedure

"justice is how a judge feels on the morning of the decision"

and this GOES for DUKE as well and its nasty general counsel...

all people want is the truth...and the truth is the last thing that DUKE wants...

no matter what the decision, someone will appeal...in the trial DUKE will appeal the way Clinton DID all the way to the SUPREME COURT...which is why jaime getsomeluck was hired at HIGH RATES apparently

DUKE will try to stretch this out as they have a 9 billion dollar endowment to do so...

i detest DUKE for its actions...no diffrent than CHAVEZ...the motion was smart to create way to slow down the process of trial...

how beautiful for a religious school to act..so ethical, so moral, so anxious to clear its name...like hell

so devious

mac said...
This comment has been removed by the author.
Michael said...

The address is http://www.dukelawsuit.com/

Anonymous said...

And they certainly weren't worried about websites when their students were the target ... how long did the NC-NAACP's website containing false and inflamatory "facts" about the case against their students -- and did Duke protest??

Oh the irony....

jmoo

Debrah said...

A Diva letter in the H-S today.

I had to respond to this guy who wrote a letter recently and mischaracterized me. Most Leftists want to put you in a "conservative" category if you support anything they don't like.

And as we all have seen, anyone who has vocally supported justice for the Duke lacrosse players has been called a rabid conservative by the Hoax enablers in Durham.


Obama's a big tent

I feel like Michael Corleone in "Godfather III": "Just when I thought I was out... they pull me back in."

Tony Madejczyk [Letters, Feb. 24] is one reason some of us Obama supporters will have to hold our noses while under the same "candidate umbrella" this political season. I don't mind being grouped with George Will, who along with William F. Buckley, is a brilliant writer. And John Hood has certainly shown great judgment. However, I am not a "conservative." My ideology is more closely aligned with writer Christopher Hitchens. I am pro-choice, fiscally circumspect and socially individualistic. I have always been a registered Democrat, but just haven't had anyone decent on that side of the aisle for whom to vote in a while.

How typical for a rabid leftist to attempt to categorize someone inside a neat little package. The thought of the residue from the 1990s Clinton years -- complete with a chubby intern in the Oval Office -- has brought many people together to work for fresh leadership.

Along with possessing a sensual charisma, Obama is a pragmatist. He knows that if he's elected he will have to move toward the center and away from the more extreme leftist positions. Those of us who just like him on a gut level savor the fact that he is embraced by people from all parts of the country and from all groups -- many Republicans as well as Independents. The polarizing leftists will have to live with this reality.

DEBRAH (the Diva)
Chapel Hill
March 3, 2008

Debrah said...

From the H-S....more from the rehabilitation tour.

Duke's Prof. Davidson likes paper books:


Cathy N. Davidson: Don't be so quick to dismiss paper books

Mar 1, 2008

In 1999, Columbia University Press and the American Historical Association announced an ambitious project. Dubbed Gutenberg-e, this project would allow historians to circumvent conventional publishing (the kind that comes on paper, between book covers) and "simply" publish their books on line. There would be no paper version at all. Only an electronic one. Similar to a blog, except for serious scholarship, all digital all the time.

Some of the finest minds back in 1999 insisted that this revolutionary electronic publishing venture would allow scholars to produce books far more cheaply, faster, and more easily than ever before. They even predicted that Gutenberg-e would "solve" the crisis faced by scholarly publishing, where serious research sells to such a specialized audience that it ends up losing money for its university press publishers. Gutenberg-e would solve all that. Some predicted Gutenberg-e would supplant conventional publishing. Some said it was the best thing to happen to book publishing since, well, Gutenberg.

Those predictions have proven to fall wildly short of the mark. A few million dollars and countless hours of time spent by scholars, editors, electronic designers, programmers, librarians, publishers, and others have yielded 36 e-books. The quality is high; but the hype has turned out to be so wrong-headed as to provide a cautionary tale about the hype of new technologies. Many of the same commentators who insisted Gutenberg-e would revolutionize how books are published now say that "unsurprisingly," the e-history books ended up costing far more than conventional books and took longer and were incomparably more difficult to produce. The surprise is that, a decade ago, brilliant people thought that it could be otherwise.

If I could predict the biggest lesson that future historians will take from this electronic publishing experiment it is that even the very best historians made the common mistake of assuming a new technology would solve problems it cannot possibly solve. As a historian of technology, I recognize the trap. We seem to fall into it over and over again, when any new technology comes along.

Technology is almost never a quick fix. It invariably introduces as many problems as it solves. For example, I blog on various aspects of new media on the www.hastac.org website. It's fast for me and easy. I type. I upload. But it is easy for me because a cadre of technology people invisibly support the website, the network, the server, the computational facilities, and all the rest, the whole constellation of supports of which my little blog is simply the "free and easy" tip of the iceberg. Someone is paying all those costs that make it possible for me to communicate to my readers in a fast and efficient way.

Since I was an administrator at Duke for eight years, I know that all that hidden technology that supports my electronic publishing venture is expensive and it is labor-intensive. It's rather like the U-Pick Strawberries in a farmer's field. If you really believe that all you need to do in order to have fresh, organic, right-out-of-the-garden fruit is pick it, you have never been a farmer. Someone else ploughed that field, cultivated, watched for pests, irrigated, and did what was required so you could pluck the best. Technology is like that. It takes a lot of labor to create and support the revolutionary, new labor-saving device.

For me, the biggest problem with born-digital electronic publishing is that it relies on whatever technology exists at the time you publish. Platforms change; websites go defunct. Lots gets left behind. I can't predict if my blog will be viewable by readers two years from now, let alone a dozen years or two hundred years.

When I write a book, I want it to last, which is why I choose to publish my books on paper, not just on a url. Paper remains the best technology when you're writing for posterity. The history paperbacks I bought for $9.95 a decade ago sit on my bookshelf now, pretty much as they did when I first read them. They require no upkeep, batteries, uploads, downloads, rebooting, or software updates, nothing, really, except an occasional dusting or pleasant rereading.

Cathy N. Davidson is the Ruth F. DeVarney Professor of English and John Hope Franklin Humanities Institute Professor of Interdisciplinary Studies at Duke University.

Steven Horwitz said...

RRH:

http://www.dukelawsuit.com/

Seems fine to me. Your link was a blogger.com link that didn't work.

traveler said...

Re: Yet another false rape charge

The Dankprofessor’s Weblog reports another false rape charge, this time at Clemson. However, this time the false accuser is arrested.

I am always amazed at how many comments about the Duke case still read “Something Happened,” or “Was she lying, or at the very least, seriously, seriously mistaken?” Perhaps the Clemson arrest is a result of ‘Lessons learned.’ It remains to be seen how the college reacts.
-------------
Link headline: Clemson University:
False Police Report Worries Sexual Assault Counselors
---------------
http://dankprofessor.wordpress.com/2008/03/02/clemson-student-arrested-on-false-rape-complaint/

Anonymous said...

Jmoo brings up a good point. These players were attacked on various websites, including the NAACP site, which was full of falsehoods.

But, let there be a website that simply posts PUBLIC court documents, and Duke wants it shut down. And to think that people spend $50 grand a year to send their children to such a place. I wonder if Brodhead, Moneta, and the others tell prospective students:

"By the way, if you are not from a PC background, we hate you, but we want your money. We will denounce you and attack you, and we expect you to sit back and enjoy it. And send us money."

What a fraud of a university.

No justice, no peace said...

Robert Steel bio

One wonders if the "principal adviser to the Secretary on matters of domestic finance and leads the Department's activities with respect to the domestic financial system, fiscal policy and operations, governmental assets and liabilities, and related economic and financial matters" is required to mark-to-market the value of the Duke endowment assets. Regardless, are Duke and other Universities overstating the value of their endowments?

Should the Undersecretary exhibit decision-making skills similar to the Duke hoax with our domestic financial system, then we may all be in for a very, very rough ride.

Anonymous said...

Duke, their attorneys and publicists will do everything in their power to keep the truth from coming out. They will try to get a gag order and limited discovery. But the truth will come out no matter what they do. So Duke clean house, fess up to their wrong doing, and settle. That is the only way they will ever get any reputation back. They are digging a hole so deep they won't be able to claw their way out. Discovery will seal their fate forever.

Debrah said...

H-S:


DA hopefuls try to avoid infamous lacrosse case

By Monica Chen : The Herald-Sun
Mar 4, 2008

DURHAM -- The race for district attorney is shaping up as one in which candidates try to distance themselves as far as possible from the Duke lacrosse case.

Monday, Assistant District Attorney Mitchell Garrell did so in a news conference in front of the Durham County Courthouse.

"Durham County does not need, nor will I offer, a rehashing of a matter that has been exhaustively litigated and analyzed," Garrell said, reading from a prepared statement. "I played absolutely no role in the prosecution of the case for which we have become infamous."

Chief Assistant District Attorney Tracey Cline, private practice attorney Keith Bishop and former assistant prosecutor Freda Black, fired by then-District Attorney Mike Nifong before the Duke case, are also running for the post.

"While one case was dominating this courthouse for the past two years, I went about doing work on other homicide cases," Garrell said.

In a Feb. 12 news conference, Cline insisted the lacrosse incident has nothing to do with this year's election.

Asked whether she should have attempted to stop Nifong before he got three lacrosse players indicted on false charges, Cline noted that the district attorney's office handles some 70,000 cases annually and added: "It's impossible for an assistant DA to go in and check behind the chief DA. That was not our role."

On Feb. 1, Black had said: "With lawsuits pending and taxes likely to go up because of the transgressions of that previous [Nifong] administration, I don't know why anybody in Durham County would want to vote for someone that had ties to that administration."

The district attorney post has been held by three people since the lacrosse case outset, in which a trio of then-members of the Duke University lacrosse team were falsely accused, then charged with raping a stripper at an off-campus party. All were later declared innocent.

Nifong filled the district attorney post from April 2005-June 2007, when the N.C. State Bar stripped him of his law license and he was forced to resign. He was followed on an interim basis by former District Attorney Jim Hardin Jr., a judge, and then longtime assistant prosecutor David Saacks.

Nifong defeated Black and Bishop in the May 2006 Democratic primary and went on to win the November 2006 general election.

Saacks is serving out Nifong's term. He is a Wake County resident and cannot run.

Debrah said...

The Diva will have champagne on ice tonight......in anticipation of the end of the Billary campaign.

No doubt, it will take the jaws-of-life to pry Hillary off the trail; however, I'm feeling lucky today!

Everyone......put on your good spirits cap and pray for a decisive end to the Clinton era tonight.

Jim in San Diego said...

to: w.r. Chambers

It is highly likely that the BOT was calling the shots at each step of the way.

There is no other explanation of how so many decisions harmful to Duke (and of course its students) could have gone unpunished.

In many respects, the Duke administration and BOT is like a criminal conspiracy. Too many individuals have committed too many crimes of commission and omission to punish anyone.

Everyone knows too much.

Very sad, and very dangerous, which is why it is imperative we not "move on" just yet.

Jim Peterson

Debrah said...

N&O letter:

disagreewithbarry.com

After reading Barry Saunders' Feb. 26 column "What the devil! Are they real?" I must ask: Do you think Coach K would have been fired over three innocent basketball players falsely accused of rape? Duke University would have stood up for him, and an internal investigation would have been done before anyone was falsely accused or convicted or had their season canceled.
Is Saunders saying that only lacrosse boys are rowdy and their daddies loaded? Thank God their daddies had careers, worked hard and were loaded enough to set their sons free.

I read in your paper a couple of months ago that the man falsely accused of the Atlanta Olympic bombing died. I hope I never live to see what the obituaries of Collin Finnerty, Reade Seligmann or Dave Evans will say.

Saunders said the lacrosse players' Web site should be greedypunkstryingtoexploitatragicsituation.com instead of dukelawsuit.com. No, their Web site should be www.psychonifongALMOSTgotawaywithit.com or www.innocentuntilprovenguilty.com.

John Gates

Raleigh

Debrah said...

Yet another creep defending the Levicy drone.

N&O letter:


The lacrosse culprits

It is not often that I agree with Barry Saunders' views or hyperbole, but he nailed it on the latest Duke lacrosse lawsuit in his Feb. 26 column "What the devil! Are they real?"
Although many players are far from being privileged rich kids, they seem to have forgotten their own transgressions in this sordid episode and are now being influenced by greedy lawyers. The chief culprit in this well-documented judicial travesty is clearly established: Mike Nifong. It's not a nurse in the emergency room. Surely our justice system has more pressing issues.

Mike Lewis

Raleigh

Debrah said...

Saunders' reply today.

He always thinks his tired humor makes everything OK.

jamil hussein said...

Maybe there is some hope in academic world..

http://www.thefire.org/index.php/article/9014.html?PHPSESSID=a2b2504f9abc7bbd5991128d34ab54af

SAN FRANCISCO, March 4, 2008—Yesterday, San Francisco State University (SFSU) settled a lawsuit challenging its speech codes by agreeing to modify several unconstitutional policies to make them consistent with the First Amendment. The settlement also requires SFSU to pay damages to members of the university's College Republicans as well as to pay the College Republicans' attorney fees. The lawsuit—part of the Foundation for Individual Rights in Education's (FIRE's) Speech Codes Litigation Project—was filed in July 2007 by attorneys from the Alliance Defense Fund (ADF). "Unconstitutional speech codes have been dealt yet another blow," FIRE President Greg Lukianoff said.

Debrah said...

Excellent!

Anonymous said...

SFSU - another scalp for FIRE, a fine organization. Beat 'em and made them pay damages.

Restoring the First Amendment on campuses one ass whupping at a time.

Keep up with them at www.thefire.org. Also good stuff about the fight for freedom on campuses at www.mindingthecampus.com.

river rat said...

That stinking Albatross around Duke's neck, is going to cost a King's ransom to remove.

The collective stench of 88 racist fascists, a feckless President and corrupt staff is not going to be an inexpensive fumigation operation.

Nor should it be..
Duke must be made an example to strike fear into the hearts of "politicallly correct" but factually challenged academia.....