Saturday, March 01, 2008

President Reagan & Duke’s Web Site Motion

Most of you know Duke University defendants in the 38 suit have filed a motion in federal court asking the court to, among other things, find that that the press conference announcing the suit, a summary of the suit complaint and the creation of www.dukelawsuit.com all violate a section of the NC State Bar’s ethical code.

As I read the motion, the Duke defendants are also asking the court to place limits on what www.dukelawsuit.com can post and direct them as to how to respond to what’s posted.

An account of the motion and some related issues can be found in this Durham Herald Sun story. The motion can be read at www.dukelawsuit.com.

There are serious matters involved here. As just one, and by no means the most important one, JinC Regulars know I’ve relied on documents and a video tape available at www.dukelawsuit.com to expose serious misreporting by the Raleigh N&O of the Feb. 21 press conference announcing the complaint filing.

In a subsequent post I’ll say more about serious matters relating to the Duke defendants’ motion.

Right now all I want to do is share a President Ronald Reagan story the defendants’ and some N&O journalists’ upset with www.dukelawsuit.com brought to mind.

As Secretary of Education in the Reagan administration, Bill Bennett was outspoken in his determination to see classroom expectations raised, teacher unions’ power curbed, and voucher programs expanded.

Naturally, that all drew howls from the usual “advocates for children.”

The howls were particularly loud just before a cabinet meeting with calls in Congress and the press for Bennett’s resignation. Reagan was ridiculed and denounced for having appointed him.

Reagan began the cabinet meeting by addressing Bennett directly. The President had before him a folder crammed with press clippings of stories and editorials attacking Bennett and sometimes himself.

Reagan read some of the headlines. As he put each clipping down, he’d look at Bennett who was saying nothing.

After a minute or two, Reagan closed the folder and said to the cabinet: “Well, I know Bennett’s doing his job. What about the rest of you?”

6 comments:

Anonymous said...

From H2G2
All white males at Duke need to be castrated and forced to have sparklers placed in their butts to demonstrate that they have been rendered totally harmless.

Anonymous said...

http://www.americanthinker.com/blog/
2008/03/dukes_boundless_chutzpah.html

Enoch said...

Broadhead and the academics are used to controlling what can be said and to keeping their decision making secret. Of course they start by limiting the free speech of the plaintiffs! And this after the Dukies have had years of saying what ever they want, slamming the players and maintaining their own website. If Duke is so worried about fairness, why did they not discipline the professors who discriminated against t players in class or the faculty and students who banged pots and called for the player's mutilation. I hope the court will reject the attempt by the Duke defendants to muzzle the players and deny them the right to balance the playing field.

Anonymous said...

Thanks John!

Great post there!

How about a re-write here;

'...and as Cooper put down the Duke motion, he smiled and thanked Robert Bork, Jr, knowing they were doing their jobs correctly, as that motion is simply the first step in this complaint that Duke will take to keep the sun from shining on the truth...'

Unfortunately, we may be faced with the problem of NOT seeing the depositions and various other discovery until the trial takes place, with exception for any that can be passed along into the public record filed with the court.

If I am at all accurate in that above statement, I hope the battle against a summary judgment produces more details.

It seems to me that most all of the defendants (except Duke) are looking for immunity one way or another. The response to that may be directed at laws violated and malice... involved in that conduct.

It looks like the problem with Duke is more like showing conduct that illustrates how they were involved in a conspiracy. That could require revealing quite a few details.

Maybe the sun will shine on this case! Wish I knew more about the process.

kbp

drew said...

The Duke filing brings to mind an occasional joke among those practicing law; specifically, “When you have the winning case, pound the case. If you don’t have the case, pound the law. If you have neither, pound the table…”

Duke apparently felt that they had to respond somehow, and (probably at the urging of their newest Washington-based counsel) decided to try to play the “victim” card. By alleging that the plaintiffs haven’t been playing by the rules, they hope to put in the potential jurors’ minds the “fact” that Duke is, and that any further pronouncements from the plaintiffs’ team (particularly if they are reported on the DukeLawsuit website) cannot be taken at face value.

But the case is in Federal, not State, court. Although the prohibitions against extra-judicial comments are largely the same, the comments need to be misleading or prejudicial in order to be enjoined. Furthermore, Duke cannot rely on a relatively meek local bench to knee-jerk its own petitions. Merely reporting known facts (particularly those that are not a matter of argument) is not prejudicial. If the DukeLawsuit website publishes a copy of its filings (which are a matter of public record), the publication of this fact is not a matter of argument or prejudice. The initial complaint does indeed make certain allegations which, if proved, would be dispositive as to a judgment. As such, some might consider those statements prejudicial. But, the allegations in the complaint are just that, and are referenced as such. That’s what the two sides to the case actually get to argue about – not the manner in which either side discloses information.

It is quite possible that Duke’s filing was/is intended to suggest to the Plaintiffs’ attorneys that Duke will be constantly litigating over any subsequent disclosures or publication of any discovery in the case. Certainly, the decision to publish or not to publish information is within the purview of the publisher; thus, the DukeLawsuit website owners are neither obliged to make all the discovery findings public, nor are they necessarily enjoined from doing so. I’ve commented before that it would likely be best from the plaintiffs’ perspective to hold back release of any discovery information, in order to maximize the leverage that the plaintiffs will have at the inevitable settlement negotiations. It’s hard to imagine that Duke has any additional dirt to dish about the LAX team – most of the dirty laundry that they have aired has been either made up, or taken grossly out of context. I suspect, however, that the vast majority of Duke’s dirty linens is still not in public view, and (at some point) Duke will go to unbelievable lengths to avoid any of its disclosure. For the plaintiffs, discovery=information, information=power, and power=winning.

Duke should be more concerned that any potential evidence has not been destroyed or otherwise covered up. Some of the allegations in the plaintiffs’ filing are quite specific, in regards to conscious acts to amend records, cover up facts, or otherwise practice a form of revisionist history. The Federal courts do not take spoliation of evidence lightly at all, and Duke needs to be very much afraid of any sort of “Rose Mary Woods” moments with respect to e-mails, the key-card records, and any other evidentiary matters related to the case. Duke’s own hubris in this entire matter suggests that it would not stop at knowingly destroying and altering information (that’s what they do anyway, isn’t it?); however, the Federal Courts will no look kindly on some sort of BS answer about “records retention policies” or “privacy issues” in relation to actual evidence in the case. Likewise, Duke will have a hard time arguing that they were unaware of the importance of such destroyed evidence in the absence of a specific lawsuit, when the LAX incident has been a matter or national consideration for over two years.

As a final impression for this comment, I am struck by the manner and the tenor in which Duke’s filing was and is made. If read from the perspective of just words on a page, the filing doesn’t have the gut-level reaction that it does when considered in light of all the prior goings-on in this case. In the context of knowing some (but clearly, not all) of the history of the underlying incidents involved, the University’s filing cries out as a desperate act by a desperate litigant. Maybe the “Brodhead Bullies” are finally beginning to see the walls close in.

Anonymous said...

Thanks Drew!

I enjoyed reading your comments.

"It is quite possible that Duke’s filing was/is intended to suggest to the Plaintiffs’ attorneys that Duke will be constantly litigating over any subsequent disclosures or publication of any discovery in the case."

Would the process not then be for both sides to argue in filings that will be attended to in hearings? If so, I would anticipate many details to be included within the pleadings, public records unless ruled otherwise. It seems it would be quite a bold move to request that all of the filings be sealed before anyone knows what the exact content is. I wish I understood the system well enough to know what to anticipate here. Maybe someone with knowledge on the topic can ring in with a comment on it.


"Certainly, the decision to publish or not to publish information is within the purview of the publisher; thus, the DukeLawsuit website owners are neither obliged to make all the discovery findings public, nor are they necessarily enjoined from doing so."

I fear that Bork being contracted by the plaintiff's attorney could be a topic brought up in any hearing on the matter.


"The Federal courts do not take spoliation of evidence lightly at all, and Duke needs to be very much afraid of any sort of “Rose Mary Woods” moments with respect to e-mails, the key-card records, and any other evidentiary matters related to the case. Duke’s own hubris in this entire matter suggests that it would not stop at knowingly destroying and altering information (that’s what they do anyway, isn’t it?)..."

LOL! "...that’s what they do anyway, isn’t it?" Short of conversations in person or on the phone (which could still leave some records), quite a bit of what may fall under that discovery leaves a long trail to hide in today's digital world. It would certainly need multiple parties involved to eliminate all traces. Unless they are much more intelligent than Mikey & crew was, I anticipate there would be too many loose ends to cover all of it up after it has been around for so long. I doubt they were very worried about it until recently.

kbp