The legal skirmishing in the civil suits by both the falsely accused and the unindicted players has featured two unusual items of contention.
The first was Duke’s motion to close down the Duke Lawsuit website—even as the University hosted a website containing (among other items) President Brodhead’s April 5, 2006 letter to the community. (That document severely denigrated the personal character of the very people now suing the University.) The judge correctly decided that both websites were proper under legal ethics guidelines.
The second unusual item has been a refusal first by Duke (in the suits by the unindicted players) and then by Durham (in all the cases) to formally confer with the plaintiffs’ attorneys about discovery matters. The Duke/Durham argument in a nutshell: all the motions to dismiss will be granted, and therefore our clients shouldn’t have to submit to the burdensome requirements associated with the discovery process.
Intellectually, the Duke/Durham argument is a perfectly reasonable one: why should defendants, in a lawsuit they consider frivolous, have to deal with discovery matters before a judge has even decided whether the lawsuit can go forward?
Legally, however, the argument is bizarre, as revealed in a motion filed yesterday by attorneys for the falsely accused players. As the motion notes, Rule 26(f) requires attorneys in a civil suit to confer “as soon as practicable” about establishing a schedule for discovery issues, and the rule doesn’t give defendants the unilateral power to override its terms.
As the motion notes, some of Durham’s arguments strain credulity: the city, claims Durham attorneys, shouldn’t have to deal with discovery matters involving the falsely accused players until the court decides motions to dismiss involving the unindicted players. Or the city, claims Durham attorneys, has no relevant information to turn over, because the criminal-case attorneys conducted their own investigation and brought all relevant facts to light.
These assertions make no sense.
Other aspects of Durham’s justification for refusing to begin the discovery process are sheer demagoguery, part of the continuing effort to suggest that the “wealthy” lacrosse players should have no right to sue the “poor” citizens of Durham. In the words of yesterday’s motion,
The City Defendants’ claims that starting discovery now would waste “taxpayer money” ring hollow, given that the City has announced that it already spent its insurance deductible and that its defense, and those of its defendant employees, are now being funded exclusively by the City’s insurance carrier, not Durham taxpayers.
Moreover, as yesterday’s response makes clear, the Durham/Linwood Wilson briefs didn’t even challenge all points in the lawsuit—meaning that portions of the civil suit would still go forward even in the (wildly unlikely) event that the defendants scored a 100% victory in their motions to dismiss.
The real reason why Durham has appeared to reluctant to begin the discovery process, despite the seemingly clear requirement under federal law to do so? It’s not hard to determine. From yesterday’s motion:
Far from obviating the need to commence discovery, the parties’ prior communications regarding electronically stored information (“ESI”) demonstrate the need to commence such discovery as soon as possible. Eight months after Plaintiffs had asked Defendants to preserve potentially relevant ESI, the City of Durham’s counsel not only had failed to secure the computers used by the City Defendants—they had not even determined which of them used a City-issued computer . . . Even more remarkably, the City’s counsel revealed to Plaintiffs that the City had made no effort to locate or secure the computers used by its two lead investigators, Defendants Gottlieb and Himan, for purposes of this litigation . . . The City also claims that it has no server-based emails[??!!] for a significant portion of the relevant time period.
The explanations for such a delay don’t inspire confidence: utter incompetence, malevolence, or both.
Given that their position defies both established federal procedure and basic common sense, what really motivates the Durham attorneys’ delaying tactics? The answer, it would seem, is risk-avoidance. Despite the fact that the city has scant chance of prevailing at trial against the falsely accused players, Durham did not seriously consider a settlement offer. The move was based largely on the (perhaps correct) assumption that demagogic appeals to a civil-suit jury might hold down the amount of the ultimate judgment.
This strategy, however, carries with it one enormous risk: that the discovery process in the civil suit would uncover evidence of misconduct so blatant (such as direct intent to frame) that even demagogic appeals won’t prevent a massive judgment against the city. So why not minimize the chances of such an outcome by delaying discovery as long as possible, and then claiming that significant items (such as Gottlieb’s and Himan’s computers) somehow got lost in the shuffle?