This isn't my area of law, but I did look at FERPA on the day of the hearing.
A student's address is directory information. Not a big deal. The student or the parent can ask the school not to reveal the information, but Nifong did make a viable argument to release the information about the addresses. That is, the potential witness argument.
1. The order is limited to the students' addresses. Not their parents' addresses. The order doesn't require Duke to release the last known address. Duke is not under an obligation to track its students (other than for fundraising purposes! LOL!) Duke can respond that it does not know the current address of a particular student who has graduated (if it doesn't really know).
2. The ripeness is probably the best argument for not releasing the address information now, but I don't see where FERPA prohibits it. Also, there is nothing in the order imposing a continuing obligation on Duke. IOW, by the time Nifong needs the information to send out subpoenas, the information may be incorrect. That's why I think that the address issue was a red herring. It's no big deal.
3. He did. His potential witness argument was sufficient for the judge. And notice that a gag order (a real one) was imposed with respect to the address information.
4. Well, that's where ripeness also comes in. The judge should have asked Nifong if he had even tried to get the information from the attorneys. Here in Michigan, an attorney has to certify that he did attempt to resolve a matter by contacting opposing counsel before he can bother the court with a motion. That's obviously not a requirement in NC. But the issue should have been raised by one of the defense attorneys and framed as an argument for costs and attorney fees. (I'm assuming that would be allowed in NC.)
5. IIRC the defective argument went to the place of delivery of the information. I thought it was a weak argument. Obviously Titus did too.
JLS, the addresses just aren't a big deal and Nifong didn't get what he really wanted.
You have some good ideas, but I'm not arguing the law. I guess, I'm speaking to how things SHOULD be.
North Carolina law has made the DA into a potential monster. He/She controls the Docket and much else. You point out Michigan's law that the it's a requirement to attempt to contact opposing counsel. NC law again cedes too much power to the Gov't and the District Attorneys, in my opinion.
I can not argue law because I'm not equipped!
I think reasonable people could agree that some laws need to be overhauled in the wake of this case, including the Rape shield laws. It's not really fair and equitable to automatically make assumptions to whom is a victim and whom is a perpetrator, IMO.
thanks