It perhaps should surprise few that the civil cases would be as peculiar as was the criminal case. First came Duke's peculiar (and unsuccessful) motion demanding that the judge shut down the dukelawsuit.com website—even though the website only had links to case events and documents, while Duke itself hosted a website containing President Brodhead's official statement linking the plaintiffs to racism and the legacy of rape.
Then came Linwood Wilson—acting as his own attorney—calling on the court to disqualify Bill Thomas from the case. The act seemed less like a legal maneuver than payback for the fact that Thomas consistently and effectively stood up for due process during Mike Nifong's 2006 reign of terror.
Now comes the latest filing of Duke and
Duke's lead attorney, Jamie Gorelick, claims that the University should be trusted to preserve all relevant documentation, and that having attorneys for both sides get together to begin the process at this stage would be premature. First, she says, she wants the court to rule on the motion to dismiss.
Indeed, it seems as if Gorelick wants to delay the start of discovery for a considerable period of time. The Duke brief states,
The task of arriving at an efficient discovery plan is complicated by the fact that there are three other pending cases in this District that would be affected by a decision to commence discovery now in this case. Coordination among the many parties involved in these multiple lawsuits and their counsel will be necessary and challenging, given the volume of potential witnesses and issues that are common to all the matters.
Any discovery plan in this action should be fashioned in a manner that will accommodate, but not unnecessarily duplicate, discovery needs in the other cases. The most efficient and sensible way to achieve this aim is to proceed with discovery after all the motions to dismiss in the pending cases have been resolved by the Court, whereupon the parties in the various cases can assess which claims against which parties remain to be litigated and can then develop a coordinated discovery plan.
In other words, Duke wants the University to receive a free pass on discovery issues not only until the motions to dismiss in this case and the Ekstrand lawsuit are ruled upon—but until the court also deals with the motion to dismiss in the lawsuit filed by the three falsely accused players against Durham. Duke, of course, is not even a party to this lawsuit.
Even more oddly, the Duke brief cites two cases that appear to undermine its argument. First, Gorelick approvingly quotes Tschirn v. Kurzweg to bolster her claim that "under these circumstances, where discovery may prove superfluous and unnecessary costs of early discovery may be avoided, proceeding with discovery only after resolution of the motions to dismiss is warranted. Yet Tschirn, as her own citation notes, granted "the defendants’ motion for stay of all discovery pending ruling on motion to dismiss and completion of Rule 26(f) conference." [emphasis added]
The lacrosse players, of course, had filed a motion explicitly requesting . . . a Rule 26(f) conference, in which Duke thus far has refused to participate. (The players' motion is entitled, "MOTION TO REQUIRE DEFENDANTS TO PARTICIPATE IN THE MANDATORY RULE 26(F) DISCOVERY CONFERENCE.") How a case justifying deferring all discovery pending completion of a Rule 26(f) conference is relevant to Duke's claim that it doesn't have to participate in a Rule 26(f) conference at this stage Gorelick doesn't reveal.
Gorelick concedes that case law for a defendant to unilaterally refuse to participate in a 26(f) conference is murky, but the Duke brief cites another case Hall v. Witteman, which lays out guidelines for "staying discovery pending resolution of dispositive motions or motions to dismiss."
Hall holds that “it is appropriate for a court to stay discovery until a pending dispositive motion is decided … where the case is likely to be finally concluded as a result of the ruling thereon; where the facts sought through uncompleted discovery would not affect the resolution of the motion; or where discovery on all issues of the broad complaint would be wasteful.” [emphasis added]
*In evaluating a motion to dismiss, the judge must assume that all facts in the motion are true. But--as the Duke and Durham motions to dismiss repeatedly pointed out--the judge need not assume that legal conclusions (such as an allegation of conspiracy) are true. Such a claim is a critical component of the Ekstrand lawsuit. Both the Duke and Durham responses allege that the facts presented did not support the conspiracy claim. But would facts sought through discovery colster it?
Take the most vulnerable of the Duke defendants, Tara Levicy. Among other items relating to Levicy is the Gottlieb brief, which essentially blames the entire initiation of the case on the former SANE-nurse-in-training. Is it really Duke's position that nothing in a deposition of Levicy (which would surely include the heretofore wholly unrevealed questions of how much her supervisors knew about her performance, and what she said in a June conference with Nifong) would "not affect" the motion to dismiss, regarding the conspiracy claim?
Or take the e-mails of the senior administrators of the Brodhead administration, especially those penned by guilt-presuming Larry Moneta. Is it really Duke's position that an examination of Moneta's files, or a deposition of Moneta himself, would "not affect" the motion to dismiss, regarding the conspiracy claim?
Update: A reader points out another anomaly in the Duke response. Gorelick demands that discovery (and, indeed, even convening a 26(f) conference) must be deferred until all motions to dismiss (including the motion to dismiss the suit filed by the three falsely accused players) are decided. But that motion, which solely involves non-Duke actors, raises legal issues (namely immunity and qualified immunity) that are wholly irrelevant to the unindicted players' suit against Duke. What possible rationale, then, exists for Duke to avoid even scheduling a discovery conference while a judge evaluates various constitutional claims that have nothing to do with any issue at hand in the lawsuit against Duke?
*--corrected and clarified