UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
YADKIN RIVERKEEPER, INC., and
WATERKEEPER ALLIANCE, INC.
Plaintiffs,
v.

No. 1:14-CV-753-LCB-JEP

DUKE ENERGY CAROLINAS, LLC,
Defendant.
DUKE ENERGY’S BRIEF IN SUPPORT OF
MOTION FOR PROTECTIVE ORDER
Duke Energy Carolinas, LLC (“Duke Energy”) respectfully submits this brief in
support of its motion for protective order prohibiting the public dissemination of the
partial deposition transcript of Kenneth Mark Rudo, Ph.D. As demonstrated in excerpts
submitted herewith, Dr. Rudo’s deposition testimony is largely hearsay and therefore
inadmissible as evidence at trial. Public dissemination of the testimony is therefore
inappropriate under Rule 3.6 of the North Carolina Rules of Professional Responsibility,
as such dissemination would create a substantial risk of prejudicing Duke Energy’s right
to a fair and impartial jury trial.
This case and the pending parallel state court enforcement actions involving
Duke Energy’s alleged violations of North Carolina groundwater standards and the Clean
Water Act at its coal ash facilities have garnered media attention since the cases’
inception. Through this coverage, Plaintiffs have sought to manipulate the media and the
public, igniting fear and consternation in order to garner support for the extreme remedy

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 Plaintiffs seek in these cases: excavation of all of Duke Energy’s coal ash basins—a
measure that would require the relocation of millions of tons of ash, impose billions of
dollars in costs to the residents of this State, and cause decades of disruption for
communities involved, all without measurable environmental benefit. In recent months,
Plaintiffs’ counsel’s efforts to influence the public escalated when Plaintiffs’ counsel
released certain deposition transcripts and mischaracterized the content and effect of such
transcripts on these proceedings. Now, Plaintiffs’ counsel have expressed their intent to
release yet another deposition transcript—a partial transcript consisting primarily of
testimony answering Plaintiffs’ counsel’s questions, on topics of which the witness
admittedly lacked personal knowledge—to inspire further public concern and confusion
on the issues at stake in this litigation. As set forth herein, Plaintiffs’ counsel’s release of
Dr. Rudo’s partial deposition transcript to the public is substantially likely to materially
prejudice Duke Energy’s right to an impartial jury trial in this matter. As a result, Duke
Energy is entitled a protective order prohibiting the public dissemination of the partial
deposition transcript.
BACKGROUND
In this case, Plaintiffs allege that Duke Energy has allowed pollutants from ash
basins at the Buck Steam Station to percolate into groundwater in violation of the Clean
Water Act, placing people who live, work, and recreate near the Buck site at risk from
contamination. Compl. ¶¶ 4-5, Doc. No. 1. Additionally, in pending parallel State
Enforcement Cases, citizen groups including Plaintiffs and others—all represented by
Plaintiffs’ counsel in this case as well as other attorneys in Plaintiffs’ counsel’s firm—
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 allege similar claims involving the Buck Steam Station and the coal ash basins at six
other power plants owned by Duke Energy and Duke Energy Progress, LLC (State of
North Carolina v. Duke Energy Carolinas, LLC, Mecklenburg Co. Superior Court Case
No. 13-cvs-14661, and State of North Carolina v. Duke Energy Progress, LLC, Wake
County Superior Court Case No. 13-cvs-11032). Per the Parties Joint Rule 26(f) Report
and the Court’s order approving the same, the Parties have stipulated that any discovery
taken in the State Enforcement Cases may be used in this case. Doc. Nos. 74, 75.
Discovery is currently pending in both the State Enforcement Cases and this case, which
the Court has scheduled for a jury trial the term beginning April 3, 2017. Doc. No. 77.
During the pendency of this case and the State Enforcement Cases, both Duke
Energy and the North Carolina Department of Environmental Quality (“DEQ”) have been
taking action to address groundwater conditions and surface water issues at Duke
Energy’s coal ash facilities in compliance with the North Carolina Coal Ash Management
Act of 2014, N.C. Gen. Stat. §§ 130A-309.200 to 130A-309.231 (2014) (“CAMA”).
Pursuant to CAMA, DEQ commissioned a health study from the North Carolina
Department of Health and Human Services (“DHHS”) to evaluate any potential risks to
human health that could be affecting owners of private drinking water wells located near
Duke Energy’s coal ash facilities. DHHS conducted a health risk evaluation (“HRE”) for
two contaminants frequently associated with coal ash: hexavalent chromium and
vanadium. 1 Although federal drinking water standards allow for a concentration of up to
100 parts per billion of total chromium (which may contain hexavalent chromium),
1

These constituents are also frequently naturally occurring.
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 DHHS initially recommended a very conservative and cautious health screening level of
0.07 parts per billion for hexavalent chromium, representing an increased cancer risk of 1
in 1 million, according to DHHS. In the spring of 2015, DHHS sent “do not drink”
advisory letters to several hundred owners of private water drinking wells located near
Duke Energy coal ash facilities in whose wells hexavalent chromium and/or vanadium
had been detected at levels higher than the HRE levels recommended by DHHS.
Subsequently and after further extensive research of the regulation of hexavalent
chromium and vanadium throughout the country, DHHS withdrew its “do not drink”
recommendations and sent letters to private well owners near Duke Energy facilities
advising them that their drinking well water was, in fact, safe to drink. (See DHHS press
release

available

at

http://www.ncdhhs.gov/news/press-releases/well-owners-start-

receiving-letters-drinking-water). Notwithstanding DHHS rescinding its “do not drink”
letters, Duke Energy has continually supplied bottled drinking water to recipients of the
letters.
In connection with this case and the State Enforcement Cases, Plaintiffs have
taken the depositions of several individuals involved in DHHS’s development of the
HRE, the “do not drink” advisory letters, and the rescinding thereof: State Epidemiologist
Megan Davies, M.D.; acting State Toxicologist Mina Shehee, Ph.D.; State Health
Director Randall Williams; and, most recently, Environmental Public Health Toxicologist
Kenneth Mark Rudo, Ph.D. Purportedly in an attempt to create fear and manipulate
public opinion around the safety of water in those private wells, Plaintiffs’ counsel
released the deposition transcripts of Drs. Davies, Shehee, and Williams to media outlets,
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 resulting in stories that misrepresented the contents of those transcripts. Additionally,
Plaintiffs’ counsel released a document they themselves prepared which purports to list
“significant points” from Dr. Davies’ deposition but actually contains several
overstatements and inaccuracies. 2 To illustrate, a number of articles, opinion pieces
authored by SELC clients, and SELC’s list of “significant points” discussing the
transcripts are attached hereto as Exhibit A. Notably, one of these opinion pieces was
authored by Pete Harrison, staff member of Plaintiff Waterkeeper Alliance, Inc. That
article misrepresents the substance of Dr. Davies’ testimony, stating that her deposition
transcript “confirms that high-level officials in the McCrory administration ignored the
State Epidemiologist when they recklessly advised families that their water was safe to
drink even though it had extremely dangerous levels of a potent carcinogen.” (See
“Transcript Sheds Light on Deceptive North Carolina Do-no-drink Advisories,” May 12,
2016, page 2, included in Exhibit A). Mr. Harrison’s opinion piece goes on, stating, “Dr.
Davies is essentially saying that her superiors went against her own expert advice and
started making up justifications to convince people their water is safe, when in fact it
poses serious health risks.” (Id.) A full reading of the transcript makes it clear that Mr.
Harrison has misrepresented the testimony. 3
2

See “Significant Points in Deposition of Dr. Davies,” included in Exhibit A, which is
linked to the opinion piece authored by Pete Harrison and published on Waterkeeper
Alliance, Inc.’s website. The list of points inaccurately suggests that Dr. Davies testified
that she flatly disagreed with DHHS’s “Do Drink” letters, when in fact her testimony was
that she disagreed with certain language in the letter and its timing.
3

Similarly, Plaintiffs’ counsel previously released an internal draft risk classification
report prepared by DEQ prior to the official release of DEQ’s proposed classifications,
and Plaintiffs’ counsel misrepresented the draft document to reflect the best judgment of
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 Coverage of these issues and the depositions of these DHHS representatives has
been widespread and extensive, with print and online publications including The
Charlotte Observer, The Winston-Salem Journal, North Carolina Health News,
WRAL.com, The Independent Weekly, The News & Observer, WTVD-TV, and more.
Now, Plaintiffs’ counsel intend to release Dr. Rudo’s partial deposition to the press,
despite Duke Energy’s objection and despite the highly prejudicial nature of the partial
transcript. (See email correspondence with Plaintiffs’ counsel attached hereto as Exhibit
C).
Part I of Dr. Rudo’s deposition was taken on July 11, 2016, and it is the
transcript of that part of his deposition which is at issue in Duke Energy’s subject motion
for protective order. (See excerpts of Rudo partial deposition transcript attached hereto
as Exhibit D). At the deposition on July 11, Plaintiffs’ counsel questioned Dr. Rudo
about the “do-not-drink” advisory letters and related issues for nearly five hours, leaving
only about one hour for Duke Energy’s counsel’s questioning at the end of the day. (Id.)
Through such questioning, it became clear that Dr. Rudo had virtually no personal
knowledge of or involvement with DHHS’s decision to rescind the do-not-drink
advisories; thus, his prior testimony on such topics was entirely hearsay. (Id.) Dr. Rudo
brought several documents to his deposition and referred to them in his testimony; Duke
Energy has requested copies of such documents but has yet to receive them from
Plaintiffs’ counsel. By a conservative estimate, attorneys have several hours of questions
DEQ’s professional staff. See “Draft report: Belews Creek is high risk,” published by
The Stokes News on December 21, 2015, attached hereto as Exhibit B.
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 remaining in many cases challenging statements made by Dr. Rudo in the first part of his
deposition. Duke Energy is currently working to schedule the second part of Dr. Rudo’s
deposition, which was adjourned at 5:00 p.m. on July 11, to reconvene at a later date and
time. (Id.)
ARGUMENT
A protective order prohibiting the public dissemination of Dr. Rudo’s partial
deposition transcript is appropriate in this case because releasing the partial transcript to
the public would violate Rule 3.6 of the North Carolina Rules of Professional
Responsibility. That rule provides:
A lawyer who is participating or has participated in the . . .
litigation or a matter shall not make an extrajudicial statement
that the lawyer knows or reasonably should know will be
disseminated by means of public communication and will
have a substantial likelihood of materially prejudicing an
adjudicative proceeding in the matter.
The official comments to Rule 3.6 provide additional guidance on the need “to strike a
balance between protecting the right to a fair trial and safeguarding the right of free
expression.” N.C. Rule Prof. Resp. 3.6, Comment 1.
Preserving the right to a fair trial necessarily entails some
curtailment of the information that may be disseminated
about a party prior to trial, particularly where trial by jury is
involved. If there were no such limits, the result would be the
practical nullification of the protective effect of the . . .
exclusionary rules of evidence.
Id. Specifically, the official comments advise that information that is “likely to be
inadmissible as evidence in a trial” is the type of information appropriate to withhold

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 from public dissemination under Rule 3.6. Id., Comment 5 (emphasis added).
Dr. Rudo’s partial deposition transcript should not be released to media outlets
that will unfairly disseminate a message to the public largely based on inadmissible
hearsay and other testimony elicited by objectionable questions. Such dissemination
deprives Duke Energy of its right to an unbiased pool of jurors and fair trial. Rather than
a “trial by media,” Duke Energy is entitled a fair trial governed by the Rules of Evidence
and Civil Procedure. Dissemination of Dr. Rudo’s partial transcript is especially likely to
prejudice Duke Energy because Duke Energy’s participation in the deposition was
incomplete. Furthermore, there is little if any justification to support the dissemination of
Dr. Rudo’s partial transcript from a public interest or policy perspective. Trial of this
case is scheduled to take place in less than nine months. Doc. No. 77. DHHS has
confirmed that water from private drinking wells located near Duke Energy’s coal ash
facilities is, in fact, as safe to drink as the majority of public water supplies in the
country. Nonetheless, Duke Energy continues to provide bottled water to residents who
previously received “do-not-drink” advisory letters.

Additionally, pursuant to the

recently enacted “Drinking Water Protection/ Coal Ash Cleanup Act,” Duke Energy must
provide permanent municipal water supply to neighbors of Duke’s coal ash ponds.
N.C.Sess. Law 2016-95 (signed by governor July 14, 2016) 4. Accordingly, any limited
public interest in Dr. Rudo’s partial deposition transcript is largely outweighed by the
substantial material prejudice that dissemination of the partial transcript is likely to cause
4

Also pursuant to this recently enacted legislation, under certain circumstances, Duke
Energy could provide water filtration systems to neighbors of its coal ash facilities. Id.
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 Duke Energy to suffer.
CONCLUSION
The Court should grant Duke Energy’s motion for protective order.
DATED: July 19, 2016

Respectfully submitted,

WOMBLE CARLYLE
SANDRIDGE & RICE, LLP

HUNTON & WILLIAMS LLP

James P. Cooney, III
N.C. Bar No. 12140
One Wells Fargo Center
301 S. College Street, Suite 3500
Charlotte, NC 28202
Telephone: (704) 331-4980
jcooney@wcsr.com

/s/ Emma C. Merritt
Nash E. Long
N.C. Bar No. 24385
Brent A. Rosser
N.C. Bar No. 28781
Melissa A. Romanzo
N.C. Bar No. 38422
Emma C. Merritt
N.C. Bar No. 35446
Bank of America Plaza
101 S. Tryon Street, Suite 3500
Charlotte, North Carolina 28280
Telephone: (704) 378-4700
Facsimile: (704) 378-4890
nlong@hunton.com
brosser@hunton.com
mromanzo@hunton.com
emerritt@hunton.com
Counsel for Defendant Duke Energy Carolinas,
LLC

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 CERTIFICATE OF SERVICE
The undersigned hereby certifies that the foregoing was electronically filed with the
Clerk of Court using the CM/ECF system and that such filing will be sent electronically
using the CM/ECF system to the following counsel of record:
Frank S. Holleman, III
Myra Dean Blake
John Timothy Suttles, Jr.
Leslie Griffith
Southern Environmental Law Center
601 W. Rosemary Street, Suite 220
Chapel Hill, NC 27516-2356
fholleman@selnc.org
mblake@selcnc.org
jsuttles@selcnc.org
Counsel for Plaintiffs
This 19th day of July, 2016.
/s/ Emma C. Merritt
Emma C. Merritt

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