More than five years after rogue ex-DA Mike Nifong and his subordinates in the DPD obtained indictments, the discovery process has begun in the civil suits. Ironically, however, only some of the Duke defendants are currently subject to that discovery.
The reason? Durham is appealing Judge Beaty’s ruling allowing the lawsuit to proceed, on the grounds that the city has governmental immunity against the lacrosse players’ claims. In other words: the city can violate its own procedures to frame innocent citizens, and should have no civil liability for its actions.
Very broadly reading the terms of the 2009 Ashcroft v. Iqbal decision, and citing a host of other cases of which the only absolutely on-point was a 2002 holding from the Middle District of Alabama that obviously isn’t binding precedent in North Carolina, Judge Beaty granted Durham’s request to delay discovery for (at the very least) many months, as Durham’s longshot appeal winds its way through the federal court system.
On the surface, Durham’s legal strategy makes no sense, especially given its political leaders’ constantly complaining about the cost of the lawsuit to them. But at a practical level, the Durham approach is unsurprising. First, the more time that elapses before discovery, the more opportunity for the DPD to “lose” evidence, or for DPD officers to claim that they don’t recall what happened in spring 2006. Perhaps more important, dragging the case out for as long as possible means that the political enablers of the hoax (such as Diane Catotti, the Nifong-supporting city councilor who strove mightily to neuter the commission intended to investigate the DPD) will get more time before having to justify their conduct to the electorate.
One element of Beaty’s discovery order, however, provides some insight into how he (at this very preliminary stage) views the case. In his rulings on the motion to dismiss, Beaty dismissed claims of malpractice against Duke and former SANE nurse-in-training Tara Levicy on the grounds that Levicy had no legal obligations relating to care to the public. (Her only legal obligations in this regard, Beaty asserted, were to false accuser Crystal Mangum.) This finding struck me as odd, since Levicy’s primary role in this case was not to provide medical care of any type to Mangum, but rather to gather evidence and offer analysis that the state might use in any prosecution.
In his discovery order, Beaty backtracked—at least intellectually—from this finding, and has now decided to lump Levicy in with the Durham defendants. The allegations against Levicy, he wrote, are "so intertwined with the claims against the city” that no discovery relating to Levicy or Duke Hospital can proceed.
In the short term, this finding is a tremendous victory for Duke: if Durham succeeds in its longshot appeal, and either the 4th Circuit or the Supreme Court holds that qualified immunity applies even when city employees attempt to frame innocent people, then Tara Levicy or records relating to her dubious conduct will never face the plaintiffs’ attorneys.
In the long term, however, this finding poses terrific risks for Duke, since Beaty appears to be conceding that the allegations on the table (before, it’s worth reiterating, any discovery has occurred) demonstrate that a Duke employee was inextricably “intertwined” with the hoax. If he’s consistent with that finding, it will be much harder down the road for Duke to separate itself from the misconduct of Durham employees.