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

Filing 128

Transcript of Status Conference held on January 28, 2016, before Judge Allison D. Burroughs. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Carol Scott at carollynnscott@cs.com Redaction Request due 2/24/2016. Redacted Transcript Deadline set for 3/7/2016. Release of Transcript Restriction set for 5/3/2016. (Scalfani, Deborah)

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1 1 UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS 2 3 4 5 6 7 * * * * * * * * * * * * * * * STUDENTS FOR FAIR * ADMISSIONS, INC., * Plaintiff, * * vs. * * PRESIDENT AND FELLOWS OF * HARVARD COLLEGE, et al, * Defendants. * * * * * * * * * * * * * * * * CIVIL ACTION No. 14-14176-ADB 8 9 BEFORE THE HONORABLE ALLISON D. BURROUGHS UNITED STATES DISTRICT JUDGE STATUS CONFERENCE 10 A P P E A R A N C E S 11 12 13 14 CONSOVOY McCARTHY PARK PLLC Ten Post Office Square, 8th Floor Boston, Massachusetts 02109 for the plaintiff By: Patrick Strawbridge, Esq. 15 16 17 18 CONSOVOY McCARTHY PARK PLLC 3 Columbus Circle, 15th Floor New York, New York 10024 for the plaintiff By: Michael H. Park, Esq. 19 20 21 22 23 24 25 Courtroom No. 17 John J. Moakley Courthouse 1 Courthouse Way Boston, Massachusetts 02210 January 28, 2016 10:00 a.m. 2 1 APPEARANCES CONTINUED 2 3 4 5 BURNS & LEVINSON LLP One Citizens Plaza, Suite 1100 Providence, Rhode Island 02903 for the plaintiff By: Benjamin C. Caldwell, Esq. 6 7 8 9 WILMER CUTLER PICKERING HALE and DORR LLP 1875 Pennsylvania Avenue, NW Washington, D.C. 20006 for the defendants By: Seth P. Waxman, Esq. 10 11 12 WILMER CUTLER PICKERING HALE and DORR LLP (Bos) 60 State Street Boston, Massachusetts 02109 for the defendants By: Felicia H. Ellsworth, Esq. 13 14 15 ALSO PRESENT: Ara Gershengorn, Esq., Harvard Office of General Counsel 16 17 18 19 20 21 22 23 24 25 CAROL LYNN SCOTT, CSR, RMR Official Court Reporter One Courthouse Way, Suite 7204 Boston, Massachusetts 02210 (617) 330-1377 3 1 P R O C E E D I N G S 2 THE CLERK: All rise. 3 THE COURT: Hi, Everyone. 4 VOICES: 5 THE CLERK: 6 7 8 9 Good morning, Your Honor. Court is in session. Please be seated. This is civil action 14-14176, Students for Fair Admissions versus President and Fellows of Harvard College. Will counsel identify themselves for the record. 10 MR. STRAWBRIDGE: Yes, on behalf of the 11 plaintiff Students for Fair Admissions, Patrick Strawbridge, 12 Consovoy McCarthy Park. 13 Park and my co-counsel Benjamin Caldwell. 14 MS. ELLSWORTH: I'm here with my colleague Michael Good morning, Your Honor. 15 behalf of defendant Harvard Felicia Ellsworth. 16 with my partner Seth Waxman and Ara Gershengorn from 17 Harvard's Office of University Counsel. 18 THE COURT: On 19 22 23 24 25 So the intervenors are not represented here today, the aspirational intervenors? 20 21 I'm here MR. WAXMAN: Probably preparing their cert THE COURT: All that fighting and then they petition. choose not to show up. All right. So we were here initially as sort of a conference to follow up on the Court of Appeals' opinion on 4 1 the motion to intervene and I had both of your, you both 2 submitted sort of memos at my request and your suggestions 3 about what we could do while Fisher was still pending. 4 then in the meantime on the 27th I got a letter from SFFA 5 and later that same day the letter from Harvard. 6 And So I take Harvard's point that they would have 7 liked more time to respond to this. On the other hand, I am 8 a big proponent of sort of letters rather than motion 9 practice where we can try to resolve some of these issues 10 short of taking the time and the money to do this in a 11 motion. 12 The way this one is teed up, I mean, it is just 13 hard to see what is going on with all the redactions in the 14 attachment. 15 don't really know what we are talking about so -- I can't, I mean, I take the general point but I 16 MR. CALDWELL: 17 THE COURT: 18 MR. CALDWELL: If I may, Your Honor? Yes. An unredacted version of the 19 letter was submitted yesterday morning along with the motion 20 to impound. It was -- 21 THE COURT: I don't think so. 22 THE CLERK: I didn't get it but -- 23 THE COURT: I got the motion to impound but 24 25 there wasn't anything attached. MR. CALDWELL: There should have been a sealed 5 1 letter, a sealed envelope attached to that motion. 2 check -- 3 THE COURT: I can Normally, I mean, normally when 4 somebody files a motion to impound and the thing is attached 5 I can look at the attachment and then once I grant the 6 motion it is to be refiled but I have, I generally can look 7 at the one that is attached to the motion to impound even 8 before the refiling. 9 refiled and there wasn't one attached. 10 But in this case there hasn't been one Now, if you are saying that you sent it in a 11 separate envelope, those never come to me and Karen said she 12 didn't get that one either. 13 14 So it is fine -- MR. STRAWBRIDGE: Your Honor, if it helps, I have an unredacted version. 15 THE COURT: 16 MR. STRAWBRIDGE: 17 That would be great. I'm happy to hand that up. (Whereupon, the document was handed to the Court.) 18 THE COURT: So where I would propose we start, 19 I am just sort of figuring out what we can do while Fisher 20 is still chugging along and I have my tentative thoughts on 21 it, tentative thoughts that I am sure are going to make 22 everybody equally unhappy, but I am going to throw them out 23 there and you can talk about what people think about it, 24 make your arguments and then I will go ahead and order what 25 I will. 6 1 I would like to get as much done as possible, as 2 you all probably know by now, I have been pretty consistent 3 in that, while at the same time not, keeping in mind that 4 Fisher is out there and not wanting anybody to do too much 5 of anything that Fisher might actually impact. 6 thoughts, and it's fairly in line with Harvard's fallback 7 position, I would like to do the discovery on the standing 8 issues in a limited sort of way. 9 respond to SFFA's Request for Productions 16, 18, 27 and 31. 10 And I would like to the extent possible all of the discovery 11 disputes and sort of foundational work to get done, Bates 12 ranges, custodian search terms, just sort of get, have the 13 parameters set so that when Fisher is decided we can jump 14 right back into this. 15 All right. So my I would like Harvard to You know, as I say, I don't want to 16 jackpot Fisher but I don't really have any confidence that 17 Fisher is going to move this case either. 18 us to tee it up to get going right after Fisher is decided. 19 20 21 So I really want And then SFFA had asked for regular discovery conferences and I am happy to do that as well. And, again, Harvard in their submission regarding 22 the scope of discovery was sort of more specific than SFFA's 23 was but I am guessing the only thing that SFFA is going to 24 have an issue with in what I just said is the standing 25 discovery. 7 1 2 MR. STRAWBRIDGE: Would you like me to address it, Your Honor? 3 THE COURT: I am happy to have you talk about 4 it but I know you think it is unbalanced that you should 5 have to be providing information and they don't but in the 6 meantime they're -- and we will get to this -- but they are, 7 they're producing on their database and the production 8 burden has been on them so far. 9 And I really do view standing as just a threshold 10 jurisdictional issue that is going to have to get dealt with 11 and I don't see any reason not to deal with it now. 12 MR. STRAWBRIDGE: 13 THE COURT: 14 MR. STRAWBRIDGE: So, if I may, Your Honor? You may. All right. You know, SFFA's 15 proposal did not object to the notion of standing discovery 16 proceeding forward. 17 the notion that discovery somehow is going to be layered or 18 sequenced in a way that's going to basically permit Harvard 19 all discovery at once to file a dispositive motion on 20 standing while keeping really the meat of the case away from 21 Students for Fair Admissions. 22 23 THE COURT: In particular -- Well, why should we get to the meat of the case if there is no standing? 24 25 What we have a bigger problem with is MR. STRAWBRIDGE: this. Well, first of all, I'll say In almost every single case involving affirmative 8 1 action that has gone up to the Supreme Court starting with 2 Bakke, including Parents Involved, including Gratz, 3 including both rounds of Fisher, standing has been raised in 4 every point and it's routinely been rejected. 5 organization, SFFA, hundreds of members, I don't think that 6 standing, there is even a realistic chance that standing is 7 actually going to be put into issue in any way in this case. 8 9 A 501(c)(3) Secondly, we cite the First Circuit precedent in our filing about the fact that standing is to be litigated 10 like any other issue and alongside the other issues. 11 Harvard did not file a 12(b)(1) motion which certainly would 12 have been their right if they wanted to front load this 13 issue. 14 We're in discovery so I have that perspective. 15 in particular I think our concern is with respect to 16 unilateral deposition testimony. 17 document discovery is going to be exchanged. 18 willing to exchange documents with Harvard going back to 19 last spring and Harvard wasn't willing to exchange any 20 documents. 21 And case has been at the order of the Court. 22 You know, if -- the SFFA was Almost every document they've produced in this So to the extent that, you know, when we get into 23 the questions as to SFFA's organizational documents, SFFA is 24 prepared to produce those but we really think that the case 25 needs to be set up in a way so that both parties are moving 9 1 forward. 2 Harvard's side and then everything that they need to file 3 dispositive motions to try to short circuit the case, that 4 is just going to delay the case. 5 It's not just simply some low hanging fruit from That's our concern. We have members who applied to Harvard, were 6 rejected, they're members of this organization. 7 fair chance to compete for admission at Harvard and they're 8 aging out of their window to transfer. 9 They want a The case has been pending for more than a year. 10 It's been almost a year since the Answer was filed. 11 our view is that, you know, the meat of discovery is really 12 going to be how the admissions process works, what role race 13 is playing when they actually get into the meetings, when 14 the readers are doing their evaluations of the applications, 15 we haven't had one page of discovery on that information. 16 We think that discovery does need to move forward and it 17 goes a little bit beyond just the four or five RFPs that 18 Harvard has cherrypicked which are largely, I think "low 19 hanging fruit" is a fair characterization of these 20 documents. 21 I guess There needs to be some real email discovery. We 22 know there are daily reports regarding the makeup of the 23 class during the meeting process that needs to be produced. 24 I think that there is more discovery out there; but, again, 25 you know, the First Circuit says standing is to be litigated 10 1 along with any other issue. 2 but we don't think that the case should be sequenced and we 3 certainly don't think that the staging motion should take 4 priority over SFFA's -- 5 THE COURT: We're happy to litigate that I am not going to sequence it. 6 What I am trying to do is do what we can do while Fisher is 7 pending. 8 is positioned a little bit differently because Fisher is out 9 there. I mean, I take the general principle but this case And it is not even just a First Circuit case, it's a 10 Supreme Court case, right. 11 trying to get as much done as we possibly can while it's 12 pending. 13 because I am sequencing it because I know the standing issue 14 is not going to be, or at least I don't have any reason to 15 think the standing issue is going to be impacted by Fisher. 16 So, I mean, I am just, I am And it is not because it is low lying fruit or If I allow discovery on the standing issue, what 17 are you all proposing to do? 18 MS. ELLSWORTH: 19 20 21 22 In terms of what discovery to take, Your Honor? THE COURT: Yes. Are you looking for just documents and how many depositions and of who? MS. ELLSWORTH: So, I think how many 23 depositions will depend a little bit on what the documents 24 reveal about membership and decision making of the 25 membership and decision making of the Boards of Directors. 11 1 I think we had in our proposal indicated at one point that 2 two or three depositions might suffice. 3 bind us to that right now, although we certainly are willing 4 to be reasonable. 5 witnesses have gone forward already or one and a half really 6 of the directer McGrath and then another former admissions 7 officer. 8 9 I don't want to I know two depositions of Harvard So depending on how many decision makers are implicated and certain of the members, the proposed, the 10 members of SFFA that are proposed applicants, we may need to 11 depose some of them, which we're willing to be reasonable 12 and come up with a proposal for what we would seek to submit 13 to the Court, if that would be useful. 14 THE COURT: I can do it two ways. I can give 15 you a limit of three depositions and then you come back or I 16 can take them at their word that they're going to be 17 reasonable and that you come back if you feel like they're 18 not being reasonable, or I can just set another status 19 conference for a month and we can have everybody talk about 20 how unreasonable everybody else is being here in a public 21 forum. 22 MR. STRAWBRIDGE: Your Honor, I guess my view 23 is if the Court is really inclined to allow depositions on 24 their side and not on our side, we'd appreciate as much 25 clear guidance as we can. Agreement unfortunately has been 12 1 difficult to come by in this case. 2 I do just want to make an additional point, and 3 maybe Your Honor's mind is made up, but, you know, I have 4 yet to hear from that side of the table -- and we've been 5 through this several times now -- any articulated way in 6 which the actual scope of the fact discovery of how Harvard 7 uses race is going to be changed by Fisher. 8 of speculation as to how the legal standard might shift but 9 the way that Harvard actually applies race, the way that it There is a lot 10 actually takes it into account, and the way it affects 11 individuals or groups of people in the admissions process is 12 just a question of fact and I don't think there is any 13 reason to sort of forestall discovery into that process. 14 THE COURT: If the Supreme Court, for example, 15 says race cannot be considered in any way, shape or form, 16 right, that's one case; and if they leave things generally 17 sort of status quo saying that it can be considered under, 18 you know, certain limited circumstances, that is a different 19 case. 20 And I am concerned about letting discovery go 21 forward premised on this case being one of those two things, 22 and I don't know which it would be, and I am sure there is 23 many permutations of it in between so -- 24 MR. STRAWBRIDGE: 25 THE COURT: I appreciate the concern -- -- if they say that race is not 13 1 being considered at all ever, they're going to have to 2 change their admissions process. 3 MR. STRAWBRIDGE: In the unlikely event that 4 they say that race cannot be considered at all, then we may 5 be entitled to judgment at that point. 6 I think, if you read the transcript, I think that 7 far and away the most reasonable expectation is going to be 8 a statement about the University of Texas's program and how 9 the University of Texas's program fits within existing 10 precedent. I mean, any case could always alter 11 fundamentally the scope of the law but I think that has to 12 be balanced against the harms to the student members of this 13 organization whose window to transfer is closing. 14 THE COURT: It is only another few months. 15 And I am willing to concede right out there that all those 16 people in the Supreme Court, at least most of them, are a 17 lot smarter than I am. 18 what they're going to do. 19 going to do. 20 I am just not willing to guess about I really don't know what they are So, but I do want to use this time, so I am going 21 to let standing discovery go forward. She says she is going 22 to be reasonable. 23 you need more, come back and ask. 24 three are unreasonable, you come back and let me know. 25 let's just get, let's get it done while we can. I'll limit you to three depositions. If If you feel like their But 14 1 And, you know, I take your point on the RFPs that 2 we've talked about, 16, 18, 27 and 31, being low-lying 3 fruit. 4 They made sense to me. 5 think are, that should be included in that group for 6 whatever reason, you can also send me a letter and they can 7 respond and we can review that. 8 be a larger group but, you know, what I didn't do was parse 9 through the discovery RFP by RFP trying to figure out which Those are the ones that they sort of suggested. If you have other ones that you I would like to have that 10 ones could get done and which ones couldn't. 11 suggestions about ones you'd like me to add to that list, 12 I'm happy to do that. 13 what I am trying to stay away from is the individual 14 applications at this point. 15 you know, batches of documents, policies, protocols, you 16 know, the same sorts of things that are in these RFPs, I'm 17 certainly willing to add them to the list. 18 So if you have I think as sort of a bright line, So if you have sort of generic, MR. STRAWBRIDGE: If I may ask, Your Honor, do 19 you have a view with respect to some of the third-party 20 discovery in this case? 21 had raised. 22 23 24 25 THE COURT: That was one of the issues that we I am, I -- I thought I had already ordered this but I may not have. In terms of, say, like the alumni interviewers, is that one of the categories you were thinking about? 15 1 2 MR. STRAWBRIDGE: That's one but there are a number of others. 3 THE COURT: Which other categories? 4 MR. STRAWBRIDGE: Well, there is certainly 5 potential third-party discovery at the high school level 6 with respect to people who are intimately involved in their 7 students' applications to the Ivy League schools and Harvard 8 in particular. 9 higher education trade groups that, you know, there is some 10 indication that they would have highly relevant information 11 with respect to Harvard's policies as well as general 12 policies and understanding. 13 who look at everyday students whose hopes to apply to these 14 schools are crushed and are sometimes told explicitly that 15 their race is a factor in their decision making and so that 16 is all fair ground for third-party discovery. 17 There is also discovery among trade groups, THE COURT: There are witnesses to the harm So sort of consistent with my view 18 that I am not going to get into individual applicants, I am 19 willing to do generalized discovery so, for example, on the 20 alumni interviewers, if I haven't ordered it already, and I 21 thought that I had, sort of the general guidelines of their 22 alumni interviewing program but not the specific individual 23 alumni interviewers. 24 high school trade group or witnesses to the harm. 25 interested in the broader sort of structural policy program And that's why I am not going to allow I am 16 1 protocol discovery and not getting into individual 2 applications or situations. 3 Ms. Ellsworth. 4 MS. ELLSWORTH: I was just going to clarify, 5 Your Honor. 6 procedures about the alumni program. 7 production that we made and are making on a rolling basis. 8 9 You have ordered the general policies and THE COURT: That's included in the That is what I thought. So, I mean, that is where I stand on sort of as a bright line as I 10 can give you now. 11 hold back on anything that involves individual applications, 12 individual interviewer, an individual high school guidance 13 counselor. 14 Fisher is decided. 15 I am not -- I am holding back, trying to I'm trying to keep this on a broader level until MR. STRAWBRIDGE: And then let me just, maybe 16 this is the application of sort of your more general 17 approach, but does Your Honor have a view on email 18 discovery, for example, for both parties? 19 something that we can negotiate or start production on -- 20 21 22 THE COURT: You said Yes, can you be a little more specific about -MR. STRAWBRIDGE: Sure. I mean, the parties 23 obviously have, especially with respect to Harvard's 24 admission policies, a lot of their responses to our RFPs 25 basically say that they're going to produce, you know, ESI 17 1 so -- and we know that there are particular documents and 2 reports that were circulated via email that are going to be 3 relevant to the case. 4 we would obviously appreciate the opportunity to at least 5 start negotiating custodians and the scope of ESI but I 6 think some of that is going to be a big chunk of the 7 relevant document discovery. 8 9 So I guess the question is, you know, So if email is on or off for both sides, that's fine, but I think we want -- 10 THE COURT: Certainly negotiating the scope is 11 on and what -- let me hear what you have to say, you're 12 standing up. 13 MS. ELLSWORTH: 14 THE COURT: 15 MS. ELLSWORTH: 16 17 18 19 Sorry. No, that's fine. I just wanted to be heard briefly. THE COURT: That is as polite a way of letting me know that you want to be heard. MS. ELLSWORTH: Certainly our position is, I 20 mean, ESI means a variety of different things. 21 lots of electronic documents that have been produced and 22 will be produced responsive to the RFPs that we've 23 identified and Your Honor has indicated will order 24 production on. 25 There are I think specific individual email would be, follow 18 1 on what I guess we are viewing as on the sort of should be 2 pending Fisher II side of the line so that's going to relate 3 to individual applicants or the actual, you know, 4 application process if it goes to -- I fail to see what 5 email discovery could relate to some of the more general 6 structural policies. 7 THE COURT: If there is a weekly report that 8 is -- and I have no idea. I am just -- if there is a weekly 9 report that circulates every Monday that says right now we 10 have this many people in, we have this many people out, 11 there is statistical information we have this many spots 12 left, if there is statistical information that isn't, that 13 doesn't focus on individual applications or name individual 14 applicants, that is the kind of information that I would 15 like exchanged now. 16 But, you know, I am in a little bit of a difficult 17 position here because I don't really know what the documents 18 look like but I'm trying to make clear that a statistical or 19 objective report that doesn't name individual students, that 20 is the sort of thing I would like to be having exchanged 21 now. 22 MS. ELLSWORTH: There is not to my knowledge a 23 weekly report that comes around on a regular, you know, on 24 sort of a scheduled basis. 25 are discussed in the Admissions Office and used that have There certainly are reports that 19 1 some statistical information that don't fall into the 2 categories that we had offered or proposed as sort of our 3 fallback position to produce here. 4 So there is not, you know, we can investigate 5 whether there is something that is, in fact, a regular 6 circulation. 7 that there is not something that is quite so regular. 8 not saying this report doesn't exist. 9 something that goes around every Monday morning as Your 10 11 My knowledge of the facts of the documents is I'm It's just not Honor suggested. MR. STRAWBRIDGE: Just, Your Honor, briefly, 12 there is a daily report during the meeting process. 13 going to try to respect the protective order but we know the 14 daily report, at least when the actual admissions meetings 15 are convened, that was the subject of testimony already in 16 this case and that's the kind of thing we're talking about. 17 THE COURT: I'm I mean, I don't have it in front 18 of me so just to try to give you some guidance. To the 19 extent that that says we reviewed, you know, Tommy, Sue and 20 Mary, Tommy is in, Mary is out, Sue we're going to defer, I 21 am not going to require them to exchange that sort of 22 information now. 23 about we reviewed this many applicants, that leaves this 24 many spots, this is what the current statistical breakdown 25 is or not, by that I mean if they're, you know, I think But if there is a more general report 20 1 there is a difference if they're looking at any racial or 2 ethnic or bugle-playing composition of the class week to 3 week versus if they get, like, 80 percent of the class and 4 then look to see where they're deficient. 5 think there is a difference in that and I think they are 6 entitled to know which model it is. And then -- I 7 And if there is a way to do that now, the reports 8 that don't discuss individual student applications and why 9 this one is in and this one is out, I would be inclined to 10 let that sort of report go over now. 11 individual student information, I would be inclined to hold 12 it off until after Fisher. 13 MR. STRAWBRIDGE: But if it includes That's some suitable 14 guidance. 15 order with respect to some additional RFPs that we think 16 should be fair game but I think I understand the parameters 17 of the Court's guidance. 18 We're happy to submit a letter in very short MS. ELLSWORTH: I understand what Your Honor 19 is saying. 20 exists in that way but I understand your guidance and we 21 can -- 22 I'm not sure that there is a document that THE COURT: If there is not, there is not, 23 right. I really am not privy to the documents. I am just 24 trying to -- I am happy to resolve, you know, this RFP by 25 RFP, document by document, but I feel like if I give you 21 1 some general guidance about how I am going to come down on 2 these things, you guys are all excellent lawyers and surely 3 you, you know, hopefully you can resolve some of these 4 things without coming back here every other day, although it 5 is always a pleasure to see you. 6 MS. ELLSWORTH: 7 THE COURT: Thank you, Your Honor. If you saw what the rest of my day 8 looked like, you would know that I am being completely 9 honest. 10 (Laughter.) 11 12 MR. STRAWBRIDGE: We appreciate that, Your Honor. 13 THE COURT: So that is what I am inclined to 14 do. 15 the pot, I am happy to consider those, but for the moment -- 16 and we will get an order out to try to give you some 17 guidance -- but standing discovery and, if need be, motion 18 practice, the four RFPs we talked about and whatever you can 19 get done in terms of negotiating the parameters of discovery 20 so we can hit the ground running when Fisher is decided. 21 will schedule regular conferences. 22 thinking or -- 23 If either one of you have more things you can add to MR. STRAWBRIDGE: I How often are you I mean, I would suggest that 24 they should -- monthly seems appropriate. If the parties 25 can agree that there is no need for a particular conference, 22 1 we're happy to notify the Court and move them. 2 THE COURT: So we will schedule them monthly 3 and then if you decide it is not necessary, just let us 4 know. 5 6 Karen, you can start looking ahead for a month. And then, so these two letters which, again, are a little, I guess I could take a second to look at this. 7 (Pause in proceedings.) 8 THE COURT: So there is 296 fields that 9 Harvard has not turned over; is that right? 10 MS. ELLSWORTH: There is 296 fields that are 11 identified by SFFA in their letter. You know, we would like 12 an opportunity to respond more fully. 13 Honor is interested in adjudicating this by letter, we're 14 happy to submit a letter response in some shorter period of 15 time than the 14-day motion period. 16 don't think we -- Harvard certainly doesn't want to discuss 17 these in a public setting hearing. 18 the courtroom be closed if we're going to have a, sort of a 19 field-by-field discussion of this. To the extent Your But these are -- I We'd have to ask that 20 But I think it probably would be more productive to 21 have some equivalent of briefing on the fields and the basis 22 for withholding certain fields. 23 THE COURT: So why don't we go ahead and do 24 that. We will have another status in a month. 25 decide it on the papers, we will. If we can If I want to hear from 23 1 you, we will do it in a month. 2 But I, you know, I guess -- and, again, I thought I 3 could look at this quickly but I can't, it is not in a 4 format that I can look at it really quickly and know what we 5 are talking about. 6 So if you are talking about fields that, for 7 example, take out the names of the recommenders for a 8 particular student or, you know, that sort of information, I 9 am going to let them hold that back for now. You know, I am 10 going to let them hold back information that specifically -- 11 I want the statistical information to go over but I want 12 the, if you are talking about like names of people and how 13 they regard recommendations from one person over another, 14 you know, that kind of stuff I am going to let them hold 15 back but -- 16 MR. STRAWBRIDGE: Just briefly, Your Honor. 17 That's certainly one category. There is another category 18 that actually has been the subject of public testimony in 19 this case already so I think it is okay to talk about that, 20 that is, there is some applicant-specific information. 21 You're right, one of the categories of information we're 22 seeking is information about potential third-party witnesses 23 so perhaps that falls within what Your Honor is talking 24 about. 25 We also have raised some issues specific to 24 1 applicants and, I mean, including things like what extra 2 curricular activities they participated in, what honors they 3 won. 4 a database. 5 identified as being useful to SFFA that, you know, on that 6 level and obviously relevant to the admissions process. 7 don't have that at this point. 8 9 The names and the street addresses are strictly out of There is material that their expert actually We There is more that I could go into except for it's covered by the court -- 10 THE COURT: I am cognizant of the request not 11 to discuss it here but to the extent you want to comment on 12 it, go ahead. 13 MS. ELLSWORTH: We will file a more full 14 response but I would just note that the basis for 15 withholding certain of the fields that are not specific 16 individuals' names are that they do render the applicants 17 identifiable or could render the applicants identifiable so, 18 again, it's a privacy concern for the applicants and 19 students at Harvard. 20 THE COURT: Like I said, if it says, you know, 21 No. one tennis player at Newton North High School, I am 22 going to hold off on that; but if it says tennis player, I 23 want that produced, okay. 24 unencumbered by any actual documents. 25 Generally speaking off the top MS. ELLSWORTH: We understand. We'll provide 25 1 a letter that will hopefully educate Your Honor a little bit 2 more on whether that type of line drawing can be done from 3 the information. 4 THE COURT: How many fields are there? Like, 5 if you have an individual student applicant, they get a -- 6 there is a database that is filled out with all the 7 information for that applicant, how many fields are there 8 for each applicant? 9 MS. ELLSWORTH: 10 are about 1600 fields. 11 In the entire database there filled out. 12 Not every applicant has every field THE COURT: I don't know if I should be 13 starting to feel better or worse about the fact that I 14 didn't get into Harvard. 15 (Laughter.) 16 THE COURT: 17 have been deficient in a lot of them. 18 I feel like I hopefully would have made the cut. 19 All right. 20 If there is 1600 fields, I could If there is only 10, (Laughter.) 21 So -- THE COURT: So why don't you go ahead and 22 brief that. 23 know if it were a motion you would be entitled to your two 24 weeks. 25 Let's have it -- how much time do you want? Do you need the two weeks? MS. ELLSWORTH: We could certainly do it in I 26 1 one week, Your Honor. 2 THE COURT: 3 take a look at it. 4 Why don't we do that. We will them? 5 Karen, do you have the next date for THE CLERK: Thursday, February 25th, at eleven 7 THE COURT: Is that school vacation week? 8 THE CLERK: No, that is after. 9 MS. ELLSWORTH: 6 10 a.m. that's fine. 11 12 I had the same question so THE COURT: Mr. Waxman, you look like you are going to say something. 13 MR. WAXMAN: I don't have my electronics so I 14 have no idea about February 25th but I do believe that I 15 don't have an argument on that day, at least that I can 16 recall. 17 18 THE COURT: They don't let you bring your electronics in? 19 MR. WAXMAN: 20 prepared. 21 They do but, maybe I wasn't I have it in my briefcase; but, in any event, I think that date is fine. 22 MR. STRAWBRIDGE: 23 THE COURT: 24 MR. STRAWBRIDGE: 25 you know, to do this. Your Honor, if I may? Of course. That is fine, we're happy, 27 1 I'll note on all the issues that we raised in our 2 letter, we've raised those issues with Harvard going back to 3 December 15th. 4 were going to file something before the conference. 5 talked about it last week and let -- 6 7 THE COURT: We I am not faulting you for the way it was raised. 8 9 I don't think that it was a surprise that we MR. STRAWBRIDGE: The one issue, at least one of the issues that we did raise that I don't think requires 10 further briefing, and really shouldn't, because we have a 11 relatively reasonable request for a modest expansion of the 12 protective order so that we're able to actually talk to our 13 client. 14 MS. ELLSWORTH: We do want to brief that 15 issue, Your Honor. 16 light of the highly confidential nature of the information 17 here and the fact that the protective order was negotiated 18 by both parties so we do intend to address that in the brief 19 we file in one week. 20 We don't view it as a modest request in THE COURT: I will let them have a week. I 21 mean, I am somewhat reluctant to jump into a protective 22 order that was negotiated between two parties. 23 know, you agreed that something is going to be sort of 24 attorneys' eyes only and then you want to give it to your 25 principal non-attorney participants, it does -- And, you 28 1 MR. STRAWBRIDGE: Well, I think the scope 2 about the extent to which they're designating materials has 3 certainly caught us off guard. 4 THE COURT: I think that is a valid point that 5 you raise. I also, you know, I take from Ms. Ellsworth's 6 response that you're allowed to share the substance of the 7 documents, just not the actual document itself; is that -- 8 9 10 11 12 13 MR. STRAWBRIDGE: true at all. No, I don't think that's I think what she does is say we're not allowed to reveal the existence of the information. THE COURT: Is that what you said in your letter, that they could share the substance of the document? MS. ELLSWORTH: Yes, Your Honor. The 14 protective order in paragraph five has a provision meant to 15 address the concern that SFFA is raising. 16 interpretation of that provision is the subject of dispute 17 but it certainly, you know, as I said, was negotiated in the 18 protective order we contemplated. 19 Perhaps an Harvard has non-attorney clients as well that need 20 to be advised and, you know, proceeding under a protective 21 order which allows one to advise your client about strategic 22 legal decisions without revealing any protected information 23 so we think that should be sufficient. 24 THE COURT: 25 Why don't you put in your response what it is you think they can, the extent to which the 29 1 protective order allows them to share information with their 2 clients and how and maybe we will have some more common 3 ground than we think. 4 They say you're designating 80 percent of your 5 documents; is that accurate? 6 MS. ELLSWORTH: The percentage may well be 7 correct. I mean, the fact of the matter is that what was 8 ordered to be produced is, does, in fact, we believe quite 9 squarely fall within the protective order's terms in terms 10 of either sensitive personal information or the type of 11 trade secret information about how Harvard conducts its 12 admission process, commercially sensitive information that 13 is not appropriate for members of the public and certainly 14 not for future applicants to Harvard to have, to be privy to 15 when other applicants are not. 16 So the scope of our designation has to do with the 17 nature of the discovery as to what they are seeking rather 18 than any over-designation on Harvard's part. 19 20 THE COURT: We will see where we are in a couple of weeks. 21 MR. STRAWBRIDGE: And just one follow-up, Your 22 Honor. We will certainly do it in a reasonable time and 23 space but if they're going to brief a full response, we'd 24 like a brief opportunity to submit a reply to respond to 25 whatever they -- 30 1 THE COURT: That is fine. I mean, I would 2 like it to be fully briefed for me with a little bit of time 3 to think about it before we meet again. 4 5 MR. STRAWBRIDGE: We can do it in a matter of 48 hours after theirs. 6 THE COURT: That is fine. I mean, I am always 7 inclined when I get these letters to sort of start working 8 through them without talking to the parties but by the time 9 you take your week and you take your two days we will be 10 close enough to the next status and I am happy to hold off 11 if you both would like to preserve the opportunity to be 12 heard on it orally. 13 MS. ELLSWORTH: 14 THE COURT: Thank you, Your Honor. I'm happy to do that. And then, 15 so if we are not going to get to it until, for a month, if 16 you want to take a little longer than a week and you want to 17 take a little longer than 48 hours, you know, it is not a 18 firm deadline. 19 Okay. 20 21 We should be ready to go in a month on it. Anything else? MS. ELLSWORTH: Nothing from Harvard, Your Honor. 22 THE COURT: Mr. Strawbridge? 23 MR. STRAWBRIDGE: 24 THE COURT: 25 VOICES: Okay. Not at this point. Thanks everyone. Thank you. 31 1 2 (WHEREUPON, the proceedings were recessed at 10:33 3 a.m.) 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 32 C E R T I F I C A T E I, Carol Lynn Scott, Official Court Reporter for the United States District Court for the District of Massachusetts, do hereby certify that the foregoing pages are a true and accurate transcription of my shorthand notes taken in the aforementioned matter to the best of my skill and ability. /S/CAROL LYNN SCOTT _________________________________________ CAROL LYNN SCOTT Official Court Reporter John J. Moakley Courthouse 1 Courthouse Way, Suite 7204 Boston, Massachusetts 02210 (617) 330-1377 DATE: February 3, 2016

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