In an upcoming deposition, lead defense attorney Thomas Dixon plans to ask former associate vice president for student affairs Bill Kirk why he was fired. Dixon represents the “ND 88,” a group of demonstrators who were arrested for protesting President Obama’s visit to Notre Dame in May 2009.
In a September 22 hearing, Judge Michael P. Scopelitis denied Notre Dame’s motion to quash the deposition of Kirk. He also denied Dixon’s request that Notre Dame produce any documents that, as the order states, “discuss, deal with or delineate [Kirk’s] employment status with the University of Notre Dame or any changes thereto.”
Dixon explained his rationale for deposing Kirk.
“Kirk was in charge of granting demonstration permits, and there appear to be some discrepancies in the application of ND’s demonstration policy,” he told The Rover.
As associate vice president, Kirk was responsible for handling all demonstration requests, including requests from members of a gay rights activist group and an anti-ROTC protest group in 2007. Though the university dropped the charges against these groups, the university continues to press charges against the ND 88.
In April, Judge Scopelitis lifted a stay order that prevented Dixon from deposing university officials. On June 3, the university sent Director of Security Police Phillip Johnson to a scheduled deposition with Dixon.
Johnson, who was designated by the university as its representative, could not provide any of the details Dixon requested in his deposition. “Phil Johnson’s testimony supported our inclination that we would need to seek Mr. Kirk’s testimony as well,” Dixon stated.
Dixon proceeded to take Kirk’s deposition. Kirk was fired June 14, two weeks after Johnson’s deposition.
After Dixon requested that the university produce documents pertaining to Kirk’s dismissal and said he would ask Kirk why he was fired during the deposition, Notre Dame filed a motion to quash Kirk’s deposition.
According to Dixon, Notre Dame’s stated position is suspicious.
“That Notre Dame produced Kirk’s unqualified underling should itself indicate Notre Dame is trying to hide something,” he wrote.
Moreover, Dixon claims that Kirk’s testimony is key to the case.
“When (controversial protester) Randall Terry came to town to engage in pro life demonstration on Notre Dame’s campus in 2009, he met with Bill Kirk, not Phil Johnson,” he said. “When Soul Force came to town to engage in pro gay-lesbian transgender demonstration on Notre Dame’s campus in 2007, they were required by Father Poorman to communicate with Bill Kirk, not Johnson…. When members of the Catholic Worker came to town to engage an anti-war/peace demonstration on Notre Dame’s campus in 2007, they were required to reach out to Bill Kirk, not Phil Johnson, to get approved to demonstrate on campus.”
In a letter to Dixon, Richard Nussbaum, legal counsel to Notre Dame and the attorney who filed the motion, argued that Kirk’s firing is irrelevant to the trial of the ND 88.“Clearly the personnel issues involving Mr. Kirk do not relate to the subject matter of the pending case nor does it involve information reasonably calculated to the discovery of admissible evidence,” Nussbaum stated. “His change of status occurred over a year following the arrests of your clients and is no way tied to the claims or defenses in this case.”
Nussbaum referred to Johnson’s deposition in the letter, pointing out that “Director Johnson testified Mr. Kirk had no role in these arrests, nor is there any evidence Mr. Kirk had in role or was present when the arrests occurred.”
In the motion to quash, Nussbaum argued that the request for documents pertinent to Kirk’s firing was a “fishing expedition,” a phrase that indicates an attorney’s attempt to discover information in court that is irrelevant to the case.
The date of Kirk’s deposition is not yet determined.
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