Students for Fair Admissions, Inc. v. President and Fellows of Harvard College et al

Filing 112

RESPONSE TO COURT ORDER by Students for Fair Admissions, Inc. re 110 Order on Motion to Stay,, Order on Motion for Protective Order,,, . (Strawbridge, Patrick)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

STUDENTS FOR FAIR ADMISSIONS, INC.,
Plaintiff,
v.

Civil Action No.
1:14-cv-14176ADB

PRESIDENT AND FELLOWS OF HARVARD
COLLEGE (HARVARD CORPORATION),
Defendant.
PLAINTIFF’S PROPOSAL FOR DISCOVERY DURING THE FISHER II STAY
Plaintiff Students for Fair Admissions, Inc. (“SFFA”) respectfully submits this
proposal in response to the Court’s Order of October 9, 2015 directing the parties “to
submit, jointly or separately, no later than October 23, 2015, written proposals
concerning what additional discovery each believes should go forward during the Fisher
stay.”1
As an initial matter, the Court properly stated its inclination “to allow discovery to
proceed. . . .” Consistent with this “general guideline,” SFFA proposes that, after the First
Circuit decides the pending appeal by the proposed intervenors, the discovery listed

1
SFFA provided counsel for Defendant President and Fellows of Harvard College
(“Harvard”) with a written summary of its discovery proposal on October 12, 2015. The
parties conferred by telephone on October 15, during which counsel for Harvard advised
that it would send SFFA a proposed discovery plan early the following week so the
parties could identify the issues on which they agree those on which they disagree.
Harvard did not do so, and on October 22, one day before the proposals were due,
Harvard informed SFFA that it would not be circulating its proposal in advance of filing.
As a result, the parties are filing separate proposals.

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below proceed with the goal of moving the case forward so that the parties can proceed
quickly to summary judgment (and trial, if necessary) after the Supreme Court issues a
decision in Fisher v. University of Texas at Austin, No. 14-981 (“Fisher II”).
Specifically, SFFA proposes the following:
•

Document Production.

E-mail and production of other requested

documents (aside from individual application files) will represent a substantial portion of
the discovery in this case. The relevant custodians, date ranges, or search terms are not
contingent on the Supreme Court’s decision in Fisher II. Regardless of the outcome
there, SFFA will need to understand the facts about how Harvard uses race in the
admissions process to advance its case. The parties should thus negotiate the parameters
for e-discovery and each proceed with productions of documents from the relevant
custodians, as well as any other documents responsive to pending requests.2 If Harvard
can articulate how Fisher II could render a particular document request or custodian
unnecessary, SFFA would be willing to consider staying discovery of such items on an
individual basis. But it would cause substantial and unnecessary delay and would be
contrary to the Court’s prudent guidance simply to halt the largest areas of document
discovery.
•

Third-Party Discovery. Third-party discovery also will be necessary

regardless of the outcome of Fisher II. As with document discovery between the parties,
the scope of third-party discovery will generally uncover and make known the facts about

2
SFFA respectfully notes that while most of the issues raised in its pending
Motion to Compel (Dkt No. 64) have for now been resolved, one issue essential to
SFFA’s case remains outstanding: SFFA’s requests for the disclosure of at least some of
the names of third parties who serve as alumni interviewers and qualify as potential
witnesses under the Federal Rules of Civil Procedure.

2

Harvard’s use of race in its admissions process. No party will be prejudiced by such
discovery moving forward.
•

Depositions. Given the history in this case, it is doubtful that Harvard

will sufficiently complete its production of documents while Fisher II is pending to
enable the parties to move forward with further depositions. SFFA thus believes that the
proper course is to stay party depositions until after Fisher II is decided. SFFA
understands that Harvard intends to seek depositions as to SFFA, while resisting
depositions of its own officials. This one-sided proposal is clearly inappropriate and
unfair, and if the Court were to permit party depositions to move forward, SFFA
respectfully requests that they should move forward as to both parties.
•

Regular discovery status conferences. Regrettably, SFFA expects that it

will be necessary for this Court to keep a vigilant eye on this case to ensure that any
ordered discovery proceeds in a timely and diligent fashion. Even in response to the
Court’s Order of October 9, 2015, Harvard took almost two weeks before making its first
production of documents on October 21, failed to provide a discovery proposal as the
parties previously discussed, and reiterated its view that any discovery against Harvard
should remain largely stayed, contrary to the Court’s explicit guidance that discovery
generally should proceed (with the limited exception of individual student or applicant
files). Moreover, disputes about custodians, date ranges, and other issues may continue to
arise, and the parties would benefit from quick resolution by the Court. SFFA thus
respectfully requests that this Court schedule regular status conferences during the
pendency of Fisher II to help ensure that the parties are moving forward at a pace that
will make efficient use of the coming months.

3

Permitting discovery to proceed as outlined above will allow the parties and their
experts to make substantial progress while Fisher II is pending. By contrast, Harvard’s
proposal appears likely to include very limited discovery (at least, as to it) and would
further stall this case in a manner inconsistent with the intent of this Court’s recent order.
And to the extent that Harvard renews its request to engage in full discovery, and even
motion practice, on SFFA’s associational standing, while at the same time largely
avoiding discovery itself, such a proposal plainly would be improper and unfair.3 There is
no basis for any lopsided approach that would impose the full burdens of discovery on
SFFA (including document and depositions) while shielding Harvard from the same type
of discovery.4 This is especially true here because any questions concerning SFFA’s
standing “are to be resolved much like any other factual issue,” and “[t]he court must
resolve any genuine disputed factual issue concerning standing, either through a pretrial
evidentiary proceeding or at trial itself.” Munoz-Mendoza v. Pierce, 711 F.2d 421, 425-26
(1st Cir. 1983); see also Vander Slam v. Bailin & Assocs., Inc., No. 11-40180, 2014 WL

3
As a recognized 501(c)(3) with its own Board of Directors and thousands of
members—including numerous students who have applied, or wish to apply, to Harvard
without being penalized because of their race—SFFA is confident that any attempt to
challenge its factual basis for standing is without merit.
4

See, e.g., Inland Am. (LIP) SUB, LLC v. Lauth, No. 09-893, 2010 WL 670546, at
*2 (S.D. Ind. Feb. 19, 2010) (rejecting request because “Defendants want to be able to
conduct discovery on their counterclaims, while denying Plaintiff the ability to conduct
discovery on its claim”); Bank of Am. v. Veluchamy, No. 09-5109, 2010 WL 1693108, at
*4 (N.D. Ill. Apr. 26, 2010) (noting that “it would be unfair to impose a one-sided stay
that would allow Counterplaintiffs to pursue discovery, while preventing Bank of
America from engaging in the discovery necessary to defend against the nine-count
counterclaim brought by Counterplaintiffs”); Pendergest-Holt v. Certain Underwriters at
Lloyd’s of London & Arch Specialty Ins. Co., No. 09-3712, 2010 WL 3199355, at *3
(S.D. Tex. Aug. 11, 2010) (rejecting a stay of discovery that was “one-sided and would
impose an undue hardship” on other party).

4

1117017, at *5 (D. Mass. Mar. 18, 2014) (denying motions for summary judgment on
standing because of genuine issue of material fact). Harvard is thus free to raise the issue
of standing at the time the Court sets for other dispositive motions (and at trial, if
necessary), but there is no practical or legal basis to subject SFFA to a unilateral
discovery burden during any partial stay.
Finally, the Court’s initial scheduling order has been overtaken by events,
including a unilateral standstill by Harvard on nearly all discovery between July and
October. SFFA therefore respectfully requests that this Court issue a new scheduling
order, resetting all deadlines in the initial order, following the resolution of Fisher II.
Respectfully submitted,
/s/ William S. Consovoy

Paul M. Sanford
BBO #566318
Benjamin C. Caldwell
BBO #67506
BURNS & LEVINSON LLP
One Citizens Plaza, Suite
1100 Providence, RI 02903
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]

William S. Consovoy
Thomas R. McCarthy
J. Michael Connolly
CONSOVOY MCCARTHY PARK PLLC
3033 Wilson Boulevard
Suite 700
Arlington, Virginia 22201
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
Patrick Strawbridge
BBO #678274
CONSOVOY MCCARTHY PARK PLLC
Ten Post Office Square
Boston, MA 02109
Tel: [phone]
[e-mail]

Dated: October 23, 2015

Counsel for Plaintiff Students for Fair
Admissions, Inc.

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CERTIFICATE OF SERVICE
In accordance with Local Rule 5.2(b), I hereby certify that I filed the preceding document
through the ECF system, and that this document will be sent electronically to the
registered participants as identified on the Notice of Electronic Filing.
/s/ Patrick Strawbridge________

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