Tuesday, July 31, 2012

Duke's Deposition Strategy

The H-S brings news this morning that Duke’s attorneys have succeeded in obtaining a protective order to prevent discovery items from being revealed before trial. Such an approach would come as little surprise: a university, after all, for which the Bowen/Chambers report remains its sole official word on how theadministration botched its handling of the lacrosse case would hardly be eager to have material emerge publicly that would contradict the party line.

The order does, however, contain an unusual line: “Although Plaintiffs initially disagreed as to the contents of the order, the parties have now submitted a Stipulated Protective Order for consideration.” The line is unusual because Bob Ekstrand, as Duke’s attorneys apologetically conceded, never agreed to such a submission. It seems likely that, nonetheless, the order will remain in place (one already exists for the Carrington lawsuit).

In various court filings since January, Ekstrand has attached three discovery items: a deposition from associate AD Chris Kennedy; a deposition from Duke PD officer Gary Smith; and two e-mail chains of Brodhead and his advisors. Given Duke’s determination to keep the discovery secret, it’s worth reviewing the scant material that has become public.

Smith Deposition

The Smith deposition was characterized by the officer’s memory problems—he said he couldn’t recall at least 30 items, including (preposterously) whether there was any conversation about the lacrosse case among Duke police officers in the early weeks of the affair. When not recalling, Smith was stonewalling: he purported to have no opinion on the integrity of the Nifong-Gottlieb investigation. (That would be the investigation of course, that set the stage for Nifong’s disbarment.)

Perhaps the most damaging admission in the Smith deposition, however, came in an apparent contradiction. Smith asserted that—on his own volition, and without a subpoena—he gave to Sgt. Gottlieb the FERPA-protected keycard information. And, he added, he didn’t tell his superiors he had done so, because he didn’t want them to know he had done wrong.

Yet when Smith e-mailed Gottlieb to tell the Durham officer he’d need to subpoena the information Smith had improperly supplied him, Smith blind-cc’d the director of the Duke Police Department, Robert Dean. Naturally, Smith couldn’t remember who told him to bcc Robert Dean. But if he had concealed his mistake from his superiors, why would he have bcc’d anyone at the Duke PD?

Kennedy Deposition

The Kennedy deposition contained no comparable blockbusters, but did feature some telling insights. Perhaps the most disturbing regarded the (successful) NCAA appeal to grant the non-seniors on the 2006 team an extra year of eligibility. In his draft of the request, Kennedy referenced the (undeniable) on-campus threats to the lacrosse players, as well as the dubious behavior of some Duke professors. The Duke counsel’s office—committed, it seems, to the Bowen/Chambers line—removed these items from the document sent to the NCAA.

Kennedy also provided what seems to be obvious analysis, regarding Pres. Brodhead’s infamous “whatever they did was bad enough” remark. He said, "I think that someone without any knowledge of any of the facts, someone on the outside would again draw the conclusion that some kind of crime had been committed and that Brodhead believed they were guilty. And furthermore, I think it was incredibly indiscreet to say ‘whatever they did was bad enough.'"

Administrators’ E-mails

To date, only five contemporaneous e-mails from the time have been made public. The whitewash Bowen/Chambers committee cited a handful of others, but didn’t reproduce any of them—and, perhaps most damningly, cited none of the e-mails uncovered in the current lawsuit, raising questions of exactly what the racial preferences duo saw.

The e-mails shed some light on one of the unanswered (and, perhaps, unanswerable) questions of the case: what motivated Brodhead?

Did fear—of being labeled a racist, of facing a faculty revolt from the Group of 88—form the principal guide of his actions? Or did he, in fact, privately sympathize with the Group’s response to the case, and issue documents such as his April 5, 2006 open letter because he shared the Group’s worldview?

The e-mails provided some ammunition for advocates of the second viewpoint—as Brodhead implied that the appropriate frame for the case might be the movie Primal Fear, in which a criminal defendant fools his lawyer into believing his innocence, only to end the film by admitting that he had committed murder.

It shouldn’t come as much surprise that Duke doesn’t want more of Brodhead’s movie criticism to see the public light.

14 comments:

Anonymous said...

How much as Duke spent so far in attempting to prevent its officers from giving depositions about their conduct during the lacrosse case?

How much has Duke spent so far on Kunshan?

Which sum is larger?

Anonymous said...

I've seen pre-trial protective orders in civil cases for trade secrets (business statistics and information, secret formulae, research, etc.), to protect the identity of minors, and the like, but never to save a university from embarrassment.

What could possibly meet the "good cause" requirement of the rules that might outweigh the fundamental openness of court proceedings? Pretrial publicity is hardly a reason in a civil case -- and especially not for this case. Duke, I would think, waived any objections to pretrial publicity with all the harmful statements made by Brodhead, Burness, and the Gang of 88.

The Judge is bending way over backwards for Duke. This is something you'd expect from lawyers representing a tobacco company. Duke must have them some cigarette lawyers. For shame. MOO! Gregory

skwilli said...

Is Jamie Gorelick still part of the team from Duke?

Anonymous said...

Is Smith a Communist?

Anonymous said...

Is Gary Smith a Marxist?

KC Johnson said...

To skwilli:

No--Gorelick & her firm withdrew after the motion to dismiss was denied.

skwilli said...

Gorelick has thus moved on to the next train-wreck in American History? She is like the Forrest Gump of Legal Leeches. She is in every iconic American Catastrophe, siphoning off any slush fund monies to fill her ever-growing personal coffer. And very rarely giving any advice that's useful to anyone but her.

Jim In San Diego said...

It is disheartening this court has enabled/participated in such extraordinary delays.

Is this normal for North Carolina cases?

How many years has it been since the complaint was filed? Yet, we are still in initial discovery stages, with much on hold.

In our region of California, judges are expected to bring cases to trial within 12 months. They are evaluated on how well they keep their calendar moving.

We are very litigious here, and there are lots of lawsuits. Nevertheless, no civil case here, in my experience, is ever delayed as the Duke case has been. Explanation?

Justice delayed is often justice denied, as here.

Jim Peterson

Anonymous said...

"It is disheartening this court has enabled/participated in such extraordinary delays."

Moreover, what have the plaintiffs' lawyers (who include some of the best in the country) done about the delays?

Or, IMHO, the rather obvious bias of the presiding judge for the defendants?

(It's past time to be something more than a potted plant, Sullivan...)

Anonymous said...

Duke is using the "OBAMA" legal strategy of spending Millions to keep the facts from being KNOWN...obviously to alledegly protect its BOARD MEMBERS who know the facts, from being pursued, to protect its former chairman Goldman salesman Steele, and of course its president...and his henchmen the group of 88...

happiness is watching how the liberals run like

KC Johnson said...

I'm afraid I don't see much of a similarity between Duke's legal strategy and that of Obama.

To point out a couple of obvious differences: the executive is subject to FOIA requests, which help bring documents to light, while Duke is not; and the executive is subject to congressional oversight, while it's tough to imagine the House Judiciary Committee demanding documents from Duke.

And, of course, if we're talking about governmental agencies "spending Millions" on dubious legal ventures, I'm not sure of any agency that could rival the Republican-controlled BLAG.

Anonymous said...

To Jim in San Diego:

Yes, Duke is dragging this out but there is some consolation - as the legal meter continues to run, thanks to the confidential settlements, Duke's money is likely paying the tab for both sides!

Jack in Morris County

Anonymous said...

To Jack in Morris County Respectfully, the only thing Duke has paid for is the protection of its own Trustees, not a dime beyond the settlement of the "indicted players". The handful of the Trustees that manipulated the proceedings until the announcement on 11 April of innocence, have had their bad decision making covered up by endowment money. And because of their failures in business: Robert K Steele, Wachovia Bank; Roy Bostock, Yahoo; John J Machoul Morgan Stanley; Rick Wagoner, General Motors; these individuals are relying on endowment monies to go on paying for their failures apart from their careers.

Anonymous said...

KC...Obama has spent million in legal fees to keep how he was able to attend OXY, COLUMBIA, HARVARD from public scrutiny

...what special gifts did he bring to these universities that they needed to accept hum...indeed yesterday we learned that 400 fellow classmates at columbia told FOX they never attended a class with him...nor has anyone at any of these universities revealed his grades unlike bumbrain bush's grades were leaded...the analogy was a reference to obama's legal strategy to fight disclosure...not the government