gronberg@heraldsun.com; 419-6648
DURHAM – A lawyer for three members of Duke University’s 2005-06 men’s lacrosse team has subpoenaed the records of two public-relations companies Duke officials consulted in the course of dealing with false rape allegations a stripper made against the team.
Durham attorney Bob Ekstrand has told federal judges information from the two firms, Burson-Marsteller and Edelman, is important to his clients’ civil-rights lawsuit against Duke because public-relations worries were central to the school’s response in 2006.
“Duke’s media strategy drove its decision-making, including its decisions to deprive [players] of the procedural protections it promises to all of its students in connection with its disciplinary proceedings,” Ekstrand said in a memo defending his move.
University lawyers, however, have asked that judges quash the subpoenas.
They contend that Ekstrand is fishing for information about matters going beyond those judges have said are fair game while preliminary rulings on the lawsuit and two like it are under appeal.
Pending a higher-court ruling, they said, Ekstrand’s only entitled to look at two things: whether Duke breached a contract with the players and whether it conspired with authorities to hide the fact it’d turned over to police information about the players’ movement during the night of a now-infamous team party.
Ekstrand’s subpoenas are so broadly worded that they extend “well beyond the appropriate scope of discovery,” Duke’s lawyers said.
They added that Duke’s “public response” in 2006 to stripper Crystal Mangum’s allegation is “not ... at issue” for the moment, and that it appears unlikely a judge can help Ekstrand by narrowing the scope of the two subpoenas.
Ekstrand is representing three players – Ryan McFadyen, Breck Archer and Matt Wilson – who escaped indictment in the Durham police investigation that followed Mangum’s allegations.
Thirty-eight other unindicted players represented by other players are pursuing their own lawsuit against Duke and the city.
As with Ekstrand’s suit, evidence gathering involving the Duke-only aspects of that case is under way. Lawyers have said the process will go continue at least through the late summer of 2012.
A third lawsuit, filed against the city by a trio of indicted-but-exonerated players, is basically on hold pending an appeals-court ruling about governmental immunity.
It doesn’t target Duke at all because the players in question settled out of court with the university.
Ekstrand’s defense of his subpoenas indicated that he’s already questioned one key Duke official, Senior Associate Athletics Director Chris Kennedy.
The 160-page transcript of Kennedy’s deposition indicated that he was sharply critical of the way Duke President Richard Brodhead and other administrators had reacted to Mangum’s allegations.
Their actions – including Brodhead’s decision to cancel the 2005-06 lacrosse season and the ouster of former coach Mike Pressler – appeared “impulsive and reactive rather than well thought out,” Kennedy told Ekstrand and the Duke lawyers sitting in on the session.
Kennedy added that he thought Brodhead had been “incredibly indiscreet” in one of his public statements, in which the president said that regardless of whether there’d been a rape, the team’s conduct had been “bad enough” to warrant severe discipline.
But Kennedy admitted that he personally had bawled out the team’s captains early on after learning about the ill-fated party, telling them “they were supposed to be leaders and that this was a real failure of leadership on their part” for either having organized and hosted the party or for not having stopped it from happening.
“I got up on my high horse,” Kennedy told the lawyers. “I wanted them to learn something from it. If I had foreseen what was coming, I would never have gotten up on the horse.”
Ekstrand’s questioning established that senior officials at Duke cut Kennedy out of the decision-making about the team after the crisis broke, even though he was Pressler’s immediate boss.
But Kennedy’s responses hinted at a reason for that. He admitted he was close to the coach and some of the players, Wilson included, because his own son had played lacrosse for Duke and for Pressler. Kennedy’s son graduated after the 2004-05 season.
