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

Filing 143

Transcript of Status Conference held on February 25, 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 Redaction Request due 3/25/2016. Redacted Transcript Deadline set for 4/4/2016. Release of Transcript Restriction set for 6/2/2016. (Scalfani, Deborah)

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1 1 UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS 2 3 4 5 6 7 8 9 10 11 * * * * * * * * * * * * * * * STUDENTS FOR FAIR * ADMISSIONS, INC., * Plaintiff, * * vs. * * PRESIDENT AND FELLOWS OF * HARVARD COLLEGE, et al, * Defendants. * * * * * * * * * * * * * * * * CIVIL ACTION No. 14-14176-ADB BEFORE THE HONORABLE ALLISON D. BURROUGHS UNITED STATES DISTRICT JUDGE STATUS CONFERENCE A P P E A R A N C E S 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 February 25, 2016 11:10 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 (Bos) 60 State Street Boston, Massachusetts 02109 for the defendants By: Felicia H. Ellsworth, Esq. 10 11 12 ALSO PRESENT: Matthew Fox, Esq., Harvard Office of General Counsel 13 14 15 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: Good morning, everyone. 4 VOICES: 5 THE CLERK: 6 Court is in session. Please be seated. 7 8 Good morning, Your Honor. This is Civil Action 14-14176, Students for Fair Admissions versus President and Fellows of Harvard. 9 Will counsel identify themselves for the record. 10 MR. STRAWBRIDGE: Yes, Patrick Strawbridge 11 from Consovoy McCarthy Park on behalf of the plaintiff 12 Students for Fair Admissions. 13 Michael Park, and Ben Caldwell from Burns & Levinson. 14 MS. ELLSWORTH: I'm here with my colleague Good morning, Your Honor. 15 Felicia Ellsworth for President and Fellows of Harvard 16 College. 17 General Counsel at Harvard. And I'm here with Matthew Fox from the Office of 18 19 THE COURT: just a cameo? 20 21 22 Are you replacing Ara or is this MR. FOX: Just for today. Thank you, Your Honor. THE COURT: All right. So when I actually 23 looked at this file last night and I thought we had gotten 24 out a draft order between the status and the last 25 conference, and then I realized there was so much paper 4 1 flying back and forth that we hadn't but we're going to get 2 out an order very quickly after this. 3 now. 4 get an order out. 5 for that. It is largely a draft It will be informed by what happens today and we will 6 If anyone was expecting it, my apologies So I am going to try and go through this sort of 7 methodically and then deal with whatever else you all have 8 on your minds today. 9 commentary, the Students For Fair Admissions, But just as sort of a general 10 Mr. Strawbridge, your paperwork is written as if if you 11 don't get it today you're never going to get it and that is 12 just not the case. 13 asking for that you're not going to get today but I fully 14 anticipate you will get eventually once we sort of tailor 15 things after Fisher. 16 There is a lot of the stuff that you're Of course, I feel like the -- I don't know whether 17 to call the death of Scalia untimely or just his death but 18 whatever -- after, of course, I felt appropriate sympathy 19 for him and his family and then my mind went right to 20 Fisher. 21 what kind of time frame we are dealing with now. 22 know if this is one of those cases that is going to turn out 23 to be four/four up there, I don't know, but it seems to me 24 this could extend our time frame on this. 25 So who knows what is going to happen with that, I don't And, but nonetheless, while we are waiting for 5 1 Fisher I want to get as much done as I can but what I am -- 2 with some exceptions. 3 I just don't want that, those things to be done more than 4 once. 5 up with some parameters on what your email searches are 6 going to be but I am not going to have email searches done 7 now and then more different or more email searches done 8 after Fisher. 9 No depositions and no email searches. So I would like it if we could spend the time to come So, anyway, and for Harvard's part of this, there 10 is a negotiated protective order here and I want to respect 11 that. 12 from their paperwork and from, I think from the volume that 13 Harvard has designated as "highly confidential," and I 14 understand your rationale for it, but they, I think that 15 they sort of bought a pig in a poke, right. 16 fully anticipating how much that was going to limit their 17 ability to share the information with their client. 18 It was negotiated between the parties but it is clear They weren't And I agree that their client is not your typical 19 sort of client. This case is politicized in some ways and I 20 am not inclined to give them full access to these things but 21 I am inclined to enforce the terms of the protective order 22 and the way that it has been negotiated at this point; but I 23 am just asking you to be reasonable and careful about what 24 you are designating because you're making it difficult for 25 them to do their jobs at this point. 6 1 And if it gets, if I feel like it gets to the point 2 where I need to take a more interventionist approach to 3 that, I will; but I saw that you undesignated some things 4 and I'm a little unclear what -- I think you both 5 represented different things in the paperwork. 6 allowed to discuss the highly confidential documents with 7 their client or they're not? 8 MS. ELLSWORTH: 9 But are they I'll speak to our interpretation of that which is that the protective order 10 allows them to advise their client based on the highly 11 confidential information. 12 Mr. Strawbridge I think pointed out for you is pretty clear 13 that you can't show the actual documents and you can't give 14 the actual contents. 15 reading of that is that you can discuss and advise your 16 client on the contours of the information that you've 17 learned from it. 18 You know, the language which I think in our view a reasonable You know, I mean, this is a restriction that we 19 dealt with in other cases in the past. 20 has to be careful and we are not suggesting that we want 21 them to be uncareful in how they interpret that but the idea 22 behind that provision in the protective order is to sort of 23 allow for the very accommodation that I think SFFA thinks it 24 needs. 25 THE COURT: And one certainly So what she just said I think you 7 1 should be able to live with. 2 3 MR. STRAWBRIDGE: I don't think it's what the protective order says. 4 THE COURT: Well, that's her interpretation of 5 the protective order. 6 oral modification of the protective order between the two of 7 you, so be it. 8 what she just said should allow you to function with your 9 client. 10 And if that turns out to be sort an I mean, I'm not weighing in on that but her, MR. STRAWBRIDGE: I am not -- I wish I shared 11 the Court's confidence. 12 we do need to be mindful of it. 13 myself in a situation where we can be accused of having 14 violated the protective order. 15 request and we've gone through this rationale to try to be 16 very deliberate. 17 I'm afraid that I don't. I mean, I really don't want to put It's why we made this I mean, I understand what Your Honor is saying 18 about the negotiations and encouraging them to be careful 19 but on a fundamental level this is really where it begins. 20 I don't think it's where it ends. 21 amount of this case and how the case is going to be 22 presented is going to revolve around expert analysis as to 23 how this admissions process works. 24 25 You know, a tremendous And under the terms of the protective order right now, and I don't think that Ms. Caldwell (sic) -- 8 1 Ms. Ellsworth, I'm sorry, has been entirely clear about the 2 extent to which they're taking a different view now. 3 can't even disclose the existence of the materials that our 4 expert is looking at let alone the expert's analysis and 5 conclusions based on his review. 6 We If it's about not giving him access to the 7 database, my client doesn't want access to the database 8 itself. 9 database. 10 11 He doesn't have any interest in looking at the But the organization needs to be able to understand what it is talking about. And the only other point I'd make on this is if you 12 read Crutter, if you read Gratz, we're not looking to 13 litigate this case in a closed courtroom. 14 is not going to consider that case in a sealed proceeding. 15 This stuff is going to come in. 16 at this stage of the litigation is really troublesome. 17 THE COURT: The Supreme Court And to shut off our access Some of it is going to come in and 18 we don't know which of that it is going to be until after 19 Fisher in fairness. 20 your ability to use the information with your expert. 21 it's doing is impeding your ability to show and maybe 22 discuss the documents with your client. 23 know, that was always going to be the case with this 24 protective order. 25 protective order, right, that, and, I mean, your client is So, and it is not, it is not impeding What And that's, you It is always the case with almost any 9 1 not a competitor but they're a partisan in this and it is 2 understandable that they don't want to share that level of 3 information with your client. 4 Now, if they're, whether -- I mean, it is a 5 negotiated arm's-length protective order but obviously many 6 and highly competent lawyers. 7 me in there is if they're over-designated. 8 I don't want them to over-designate. 9 that they're over-designating and that really hampers you in The only issue that concerns I just told them And if it turns out 10 some way, we'll visit it again; but I would like to kick 11 that can down the road until after Fisher if I can, because 12 once, and not to mix a bunch of bad metaphors, but once the 13 cat is out of the bag, it is out of the bag, right. 14 information has been shared with your client who, you know, 15 I can't undo that so -- 16 MR. STRAWBRIDGE: 17 THE COURT: 18 MR. STRAWBRIDGE: The Respectfully, Your Honor -- Of course. None of the case law I think 19 supports the kind of conjectural concern when there is a 20 noncompetitive situation and this is -- 21 THE COURT: 22 and entered into that protective order. But you signed -- you negotiated 23 MR. STRAWBRIDGE: 24 the scope to which they were going to be -- 25 THE COURT: Without merely understanding Well, that is why I am -- that is 10 1 the nub of it; right? And I just said to them I am not 2 doing anything about this now but if they designate or 3 over-designate or whatever you want to call it to the point 4 where it really begins to hamstring you as this progresses 5 in a more fulsome way later down the road I will have to 6 deal with it but for the time being I am not inclined to 7 interfere with an arm's-length negotiated protective order 8 that -- I don't see the problem as being the protective 9 order. I see the problem as being the amount of 10 designation. 11 hamstrings you, then I'll have to wade into it, but -- 12 And if it continues at that pace and it MR. STRAWBRIDGE: Well, let me just cut, so we 13 at least have something on the record, let me just pose the 14 question. 15 discuss the analysis that our expert makes of the database 16 material that they have produced as long as we do not 17 disclose the actual underlying database material itself to 18 our client? Is it Harvard's position today that we can 19 MS. ELLSWORTH: Mr. Strawbridge and I have 20 discussed this in the past. It's a little hard for us to 21 answer that question without knowing what the analysis looks 22 like, right. 23 protective order that would say that certain analysis that 24 is at a very high level and showing, you know, race (ph.) 25 analyses and things like that, that would probably be okay So I think there is an interpretation of the 11 1 if the analysis is there were X number of this and Y number 2 of that, that seems to us to get to close to actually 3 disclosing the contents of the database. 4 THE COURT: What I think she is saying and 5 what I would courage and what is reasonable to me is that if 6 you're running an analysis of that database, then you should 7 be able to share with your clients the conclusions of that 8 analysis, right. 9 like, what you put in your PowerPoint, right, but that you This is what the overall statistics look 10 probably should be way more careful about sharing things 11 like we took this information from that document and this 12 information from that document and we did this with it and 13 came out with that number, right? 14 And I don't think they need to know, your client, I 15 mean -- and, again, I'm not trying the case -- but it seems 16 to me that the conclusions of the expert, the results of the 17 analysis should be what your client needs. 18 to know the nitty gritty of how you got there. 19 had a client that even wanted to know how anybody got there 20 so. 21 MR. STRAWBRIDGE: He doesn't need And I never I mean, I suppose there is, 22 there is some uncertainty as to where you draw those two 23 lines between what is nitty gritty and what is a conclusion 24 and what is the basis for a conclusion. 25 gets very complicated. And that's where it 12 1 I mean, I respectfully disagree that our client 2 doesn't need to know this, that we don't need to have the 3 ability to share this with one client representative. 4 Your Honor's mind is made up on this, you know, I would 5 inquire as to whether it is going to be addressed in the 6 draft order, because we have requested some relief on this 7 that will at least allow us to consider whether we want to 8 seek further review? 9 THE COURT: Let me see. If So this was largely 10 drafted after our last -- it is not addressed in the current 11 draft exactly but if you want me to put something in there 12 I will. 13 MR. STRAWBRIDGE: 14 THE COURT: 15 MR. STRAWBRIDGE: Yes, we just -- I mean -I would respectfully just 16 ask the Court to, you know, if you look at the language of 17 Danny V (ph.), if you look at some of the First Circuit's 18 discussion of what sort of standard is necessary and how 19 important it is that clients not be overly restricted, I 20 think when you pull that all together we'd ask you to just 21 take a look at it. 22 But if Your Honor is of the view that our client 23 cannot be given access at least on equal footing with their 24 in-house counsel -- 25 THE COURT: I am of that view. 13 1 2 MR. STRAWBRIDGE: And we'd request that it be in the order, please. 3 THE COURT: That's fine. I am happy to put 4 that in the order. 5 "respectfully" or "honestly" because I really expect, I 6 assume both of those two things. 7 8 All right. You don't have to preface anything with So let me try and wade through this all and you can tell me what I have left out. 9 So it -- so on policies, manuals and guidelines, 10 Ms. Ellsworth, are you now willing to produce 1 through 14, 11 17 and 20? 12 through 14. 13 actually identify 1 through 14. 14 I'm talking about 17 and 20. They ask for 1 You say you are producing it but you don't MS. ELLSWORTH: Yeah, 1 through 14 and -- 15 well, one relates to either electronic databases, printed 16 databases and manuals and guidebooks in connection with the 17 same. 18 What we have agreed to produce is, I think probably 19 the closest RFP to it is probably RFP two which is code 20 books and guide books from the database information that's 21 already been produced. 22 Other database information to the extent it exists 23 has not been produced to them. I'm not sure any code books 24 or guidebooks exist as to that. So what we've said is that 25 essentially any code books, guidebooks, manuals, et cetera, 14 1 for the information that has already been produced under 2 Your Honor's order we will be happy to produce at this point 3 as to that RFP. 4 THE COURT: So I want to make sure that the 5 order is clear. 6 or do you want me to say it -- 7 So are you -- is that yes to 1 through 14 MS. ELLSWORTH: It's not 1 through 14 because 8 1 through 14 would be much broader. 9 think. 10 THE COURT: 11 MS. ELLSWORTH: 12 THE COURT: 13 MS. ELLSWORTH: 14 Two on the RFP? Correct. And then 17 and 20? Correct, subject to our other objections. 15 16 Okay. It would be two I THE COURT: So 2, 17 and 20. Does that satisfy you, Mr. Strawbridge? 17 MR. STRAWBRIDGE: I think with the caveat that 18 we may want to revisit it after Fisher, I think that that's 19 satisfactory. 20 to 1 and 2 is with respect to the data being produced here, 21 they're going to produce the associated data books or guide 22 books, whatever exists, so that's fine. 23 THE COURT: 24 25 I understand the qualification with respect Okay. You can come back on that if it doesn't work out. The application files for SFFA members, they agreed 15 1 to produce that once they've gotten consent from those 2 people. Is that accurate? 3 MS. ELLSWORTH: 4 THE COURT: 5 6 Correct. And I assume that satisfies you with regard to those? MR. STRAWBRIDGE: Yes. I'll confer with my 7 counterpart here as to whether there is a particular form 8 they want it but that's fine. 9 THE COURT: Okay. No. 15 which is documents 10 concerning the racial composition of the pool of applicants. 11 And we, I think we talked about at our last one that if such 12 a thing existed in sort of a generic form that you would 13 produce those to them. 14 Where are we on that? MS. ELLSWORTH: So, Your Honor, what we've 15 indicated in our letter from a couple days ago is that to 16 the extent that what SFFA is looking for is the aggregate, 17 you know, applicant and admit data, that's discernible from 18 the database that's already been produced. 19 racial information and it has whether someone was admitted 20 or not for those two years' of data that's already been 21 produced so that has already been produced. 22 It has the So, there is also a request for enrolled students' 23 data that the plaintiff agreed to and we didn't agree to 24 produce any enrolled students' data as to anything in our 25 RFP responses and we're happy to discuss that. I am not 16 1 sure where Your Honor is on that. 2 THE COURT: Well, do you agree that what they 3 produced to date allows you to extract the information you 4 are looking for? 5 MR. STRAWBRIDGE: I don't think that what 6 they've produced is sufficient and, Your Honor, I'm happy, 7 if I could approach very briefly -- 8 THE COURT: 9 MR. STRAWBRIDGE: 10 Sure. -- I think I'd like to show you. 11 THE COURT: 12 Sure. (Whereupon, a document was handed to the Court.) 13 MR. STRAWBRIDGE: I have handed you page two 14 of two from a deposition in this case. 15 "highly confidential" so I am not going to disclose the 16 contents of it other than to note that this page describes a 17 particular document, a set of documents prepared during the 18 admissions process. 19 20 THE COURT: It has been marked Where are you? Start me on a line. 21 MR. STRAWBRIDGE: It's basically the entire, 22 if you start at the first question on line seven and 23 follow -- 24 25 THE COURT: Give me a second here. (Pause in proceedings while the Court read the 17 1 document.) 2 THE COURT: Okay. And that leads to, your 3 position is this document exists. 4 tell me they haven't given it to you. 5 MR. STRAWBRIDGE: I assume you are about to And I would, the one point I 6 would also make is that there is a big difference between 7 the ability to look at a database after the fact and discern 8 where it all ended up as opposed to contemporaneous evidence 9 as to how they were using race during the admissions 10 process. 11 particular captures. 12 That's the evidence that this document in And this is the kind of document that I think Your 13 Honor said at the last hearing was the sort of thing they 14 ought to produce. 15 generated during the admission cycles, particular periods 16 during the admissions cycles be produced. 17 MS. ELLSWORTH: We would ask that this set of documents Your Honor, RFP 15 asks for 18 all documents from a relevant period concerning the racial 19 composition of the pool of applicants, admitted students or 20 enrollees. 21 produce documents sufficient to show the racial composition 22 of the pool of applicants, admitted students, and admitted 23 students, so that's the objection that we made there. 24 25 And our response and objection was that we would If there is a specific back and forth about this specific RFP, I think where we are on this, what we've 18 1 agreed to produce is sufficient to show the composition of 2 the class, which they can get that. 3 that the document that is the subject of this testimony 4 exists or some document like this -- 5 6 THE COURT: Now, I'm not denying Your position is that they haven't asked for it? 7 MS. ELLSWORTH: My position is that that's the 8 type of, within the process kind of the granular 9 information, at least our interpretation of Your Honor's 10 rulings so far is the type of information that should await 11 Fisher II and the contours of the case as opposed to we're 12 looking for just the aggregate, the breakdown. 13 the database and they can play with it whatever way they're 14 able to do so. 15 THE COURT: They have I don't, I haven't seen this 16 document. 17 to me to be a generic sort of document that doesn't identify 18 individual students that should go over unless there is 19 some -- 20 I don't really know what it says but this seems MS. ELLSWORTH: The document that is the 21 subject of this testimony, you're right, Your Honor, at 22 least most of it that I am aware of would not identify 23 individual students. 24 25 THE COURT: I think that they should get that document if they have asked for it. Have you asked for it? 19 1 MR. STRAWBRIDGE: Oh, yes, we have asked for 2 it. Her position is that they had not yet agreed to produce 3 it when we were initially exchanging objections and 4 responses but we certainly have asked for this document. 5 It's encumbered by our request. 6 THE COURT: So, you know, I mean, my 7 presumption is that documents should go over except email 8 searches. 9 because I don't think that should be done more than once, or 10 that identifies private student information. 11 12 I think we should wait to define the search terms So I don't see any reason why a document like this would not go over at this point to them. 13 MS. ELLSWORTH: Okay, Your Honor. I mean, I 14 hear you and we'll find, locate any versions of this 15 document from the time period that we've been producing 16 from. 17 18 19 I do think this sways into the EIS searching but I hear your order and we're happy to find it. THE COURT: I mean, this doesn't seem to me 20 like it is, I mean, I view the EIS searching where you're 21 doing a word search and you come up with a million documents 22 and someone has to go through them to weed out which 300,000 23 were actually responsive, that's what I am trying to avoid. 24 25 But where you have an identifiable document, they're probably sitting in a folder someplace, it is not 20 1 going to require any real discretion about what goes over 2 and what doesn't, when you pull that group of documents, I 3 think those are the things that should go over. 4 I don't want you to have to engage in sort of a 5 massive document review and production before we know what 6 the parameters of Fisher are going to be; but where there is 7 discrete sets of documents that don't require that sort of 8 review function, I would like those to go over, unless they 9 reveal confidential student information or some other trade 10 secret or whatever Harvard wants to call their process at 11 this point. 12 13 14 MS. ELLSWORTH: Okay. I understand the Court's view on that. THE COURT: Okay. I am actually, I am going 15 to go back through all of these documents but I happen to 16 have them in front of me right now, Harvard's most recent 17 one which is the order, I'm marching through these, but 18 we'll go back and capture whatever is not in this one. 19 Documents concerning race and admission process 20 which are SFFA's request 22, 23, 32 and 33. I'm not 21 prepared to order those be produced now. 22 the types of documents that should wait until after Fisher, 23 unless Fisher gets to be extremely protracted which maybe we 24 can revisit some of this, but these all seem like they would 25 require email searches. I think those are I think they are premature at this 21 1 point in the process. 2 I guess I should say that is 22, 23 and 32. 33 3 which is what -- those are documents that, what are you -- 4 it's your, you are correlating academic performance to 5 demographic characteristics, is that what 33 asks for? 6 MR. STRAWBRIDGE: Yes, Your Honor, the 7 Complaint discusses, and it will be Harvard's burden to show 8 that whatever, however they're using race in their 9 admissions process, that it's going to be effective in 10 achieving their stated goal which presumably is a diverse 11 campus climate that stretches beyond the date of admission. 12 And, therefore, we had asked for, among other things, 13 academic performance data broken down by ethnicity, you 14 know, for the four-year period at least covering the 15 material when we had initially made this request. 16 Harvard submitted that they would consider 17 producing it on an aggregate basis, not a specific anonymous 18 student basis. 19 data. 20 shut down the discussions but we think that's highly 21 relevant information. It's going to be necessary to the 22 Court's consideration. And because it does not identify 23 students on a specific level and it can be easily discerned 24 from the existing electronic records, we think that should 25 be produced. We said we were interested in that aggregate At that point Harvard asserted the stay and basically 22 1 THE COURT: So in your letter you actually 2 address all of their points except this one, at least I 3 didn't see it here. 4 So what is Harvard's view on 33? MS. ELLSWORTH: On 33, Your Honor, I mean, 5 again, this, there are many different subparts of this: The 6 application rate of high school students to Harvard; the 7 rate at which applicants are admitted. 8 documents that seek to measure, estimate or predict using 9 race how people will apply, how people might enroll, how This is seeking 10 enrolled students may perform once they actually matriculate 11 at Harvard. 12 First of all, I would note that, again, this I 13 think will require an EIS search for us to determine whether 14 any documents are responsive to this request. 15 certain how we had intended to respond to their objections, 16 or our objections and responses. 17 I'm not And, secondly, again, on enrolled students, we 18 don't view that as being an appropriate part of this case. 19 We regard that information very zealously and are very 20 cognizant of the privacy intrusion on enrolled students from 21 this case which is really about the admissions process. 22 So I think trying to -- I don't believe that these 23 fall into a category of some discrete document or data set 24 that we could pull from. 25 race to predict performance. It's about predicting or using You know, again, we don't 23 1 agree that's appropriately part of the case but certainly as 2 a sort of more functional discovery matter it would be very 3 difficult to obtain at this point in time. 4 THE COURT: I am not so interested in the 5 predictive part of that. 6 you have raw statistical anonymous data on how different 7 demographic groups are performing, does that exist? I think that gets saved. 8 MS. ELLSWORTH: 9 THE COURT: But if Once enrolled at Harvard? Well, I am going to hold back on 10 the predictive stuff; but, yes, they claim in their 11 Complaint that you, you allege -- I think I have this 12 right -- that you allege that candidates that are let in on 13 sort of an affirmative action type of theory underperform 14 others; right? 15 16 17 MR. STRAWBRIDGE: Correct, and ultimately have a negative effect both on the quality and the quantity -THE COURT: I mean, at some point they are 18 going to be entitled to that information. 19 predictive part of it I am going to hold back on. 20 taken that off the table for now but it's the statistical 21 analysis of how those demographic groups are performing at 22 Harvard, to address that issue in their Complaint. 23 sorts of documents exist? 24 25 MS. ELLSWORTH: And I, the I have Do those So as to enrolled students, I want to make sure I understand the question. Whether there 24 1 is information in Harvard's possession about enrolled 2 students, majors or GPA, things like that? 3 THE COURT: Enrolled students, I mean, I'm not 4 sure, what are you talking about? 5 students that have already graduated? 6 be -- 7 MR. STRAWBRIDGE: Are you talking about Is that going to I think that we would like 8 to look at this aggregate data over a time period, at least 9 four years, probably maybe a little bit longer, to see how, 10 you know, the admissions process actually manifests itself 11 once the students get on campus and go through the process. 12 I think Your Honor has identified what the issue is 13 and we obviously need a rolling basis for a period of time. 14 We have been negotiating and discussing how that could be 15 produced on an aggregate basis by ethnicity. 16 there are a lot of parameters and functions but it's our 17 understanding that all this information can be gleaned from, 18 you know, enrollment records. 19 THE COURT: Obviously Do you have it or -- at this point 20 I am not going to -- well, do you have it? 21 information kept? 22 23 24 25 MS. ELLSWORTH: How is that I mean, the Office of the Registrar has certain information about enrolled students. THE COURT: Do you look at that data? Do you keep that data someplace? 25 1 MS. ELLSWORTH: 2 data? 3 Does Harvard look at that To be honest, Your Honor, I don't know the answer to that question. 4 THE COURT: 5 capture that? 6 Have they kept documents that for them. 7 I'm not going to ask you to make something MS. ELLSWORTH: I would have to confer as to 8 whether there are documents that are currently in existence 9 versus simply a database that somebody could query. 10 THE COURT: I mean, if somebody has done a 11 statistical analysis that shows that this group performed in 12 this way, that group performs in that way, whatever that 13 information is, however it's kept, historical information, 14 historical anonymized information. 15 about the distinction between currently enrolled. 16 inclined to protect the currently enrolled to be, to -- but 17 if you keep that historical information and it is anonymous 18 and it is available, that should probably go to them unless 19 you can, unless there is some way in which it falls out of 20 the parameters I articulated that I hadn't thought of. 21 MS. ELLSWORTH: I am not so concerned I am more Well, I don't think it 22 necessarily falls out of the parameters of discovery as Your 23 Honor has been suggesting today. 24 25 I think our larger concern there is that we don't believe the performance data about either currently enrolled 26 1 or previously enrolled students is actually something that 2 should be produced in this case. 3 THE COURT: Well, why? 4 alleged it in their Complaint? 5 Because they have allowed to explore it in discovery? 6 MS. ELLSWORTH: Why would they not be We simply don't think that it 7 is relevant to the question before the Court as to the race 8 in the admissions process and the permissible -- 9 THE COURT: Well, that is an interesting 10 point. 11 that information but what I am extrapolating from what you 12 are saying is that Fisher may change those parameters in 13 which case the performance may not become so relevant. 14 So under current case law they would be entitled to MS. ELLSWORTH: It may, and I think that even 15 under current case law it is not clear as to how relevant 16 this -- I think it's what academics call the mismatched 17 theory. 18 that the plaintiffs have made allegations in their 19 Complaint; but from our point of view the relevant question 20 for this Court is the admission process as it was conducted 21 by Harvard and whatever information goes into that process. 22 It's not the theory that we buy into. THE COURT: I understand Well, the admissions process is 23 conducted by, they're allowed to consider race for certain 24 limited purposes. 25 Harvard is currently considering race in its admission And what he is saying is that however 27 1 process, they want to argue that it is not achieving those 2 purposes, right. 3 they see the data. 4 So they can't make that argument unless So, you know, my expectation is that at some point 5 they are going to get it but now I am thinking about how 6 Fisher might impact that and I may, I may have them hold off 7 on 33 too but -- 8 MR. STRAWBRIDGE: 9 THE COURT: Yes, go ahead. 10 MR. STRAWBRIDGE: 11 THE COURT: 12 Just -- Respectfully push, and honestly. (Laughter.) 13 14 If I can just push -- MR. STRAWBRIDGE: Now you are making fun of me I think. 15 (Laughter.) 16 MR. STRAWBRIDGE: I mean, what we are looking 17 for here is not I don't think particularly burdensome. This 18 is aggregate data that's available in the Registrar's 19 Office. 20 they already have so that we can do some basic analysis on. 21 It is relevant and, you know, there is a tendency in this 22 case I'm afraid for Harvard to insist that Fisher is going 23 to change everything without actually putting any meat on 24 those bones or explaining specifically how Fisher might 25 change it. It is just pulling a subset of electronic data that I mean -- 28 1 THE COURT: You know, you are going to get it, 2 right. I mean, I am not, this is not a ruling for all time. 3 I will tell you, I mean, to be perfectly honest, which I 4 always try to be, you know, I want, I am sensitive to the 5 issues that they have raised but I am also sensitive to, you 6 know, some of the other issues in this. 7 if you are going to suggest that certain demographic groups 8 perform or underperform or over-perform other demographic 9 groups, I mean, that can have sort of political implications 10 that I am not entirely comfortable putting out there unless 11 we need to I guess is the way I will put that. 12 MR. STRAWBRIDGE: And if, you know, I guess my response to that 13 is we're under a legal regime that today and after Fisher is 14 still going to require strict scrutiny to the use of race. 15 Whether it's a politically uncomfortable conversation or not 16 has no bearing on whether they can meet that standard. 17 is one of the asserted bases for their use of race and it 18 needs to be tested. 19 THE COURT: Let me interrupt you. It What if 20 Fisher says you cannot consider race and Harvard says, Okay, 21 we are not going to consider race anymore in any way, shape, 22 or form? 23 24 25 MR. STRAWBRIDGE: Well, that would be a victory for Students For Fair Admissions. THE COURT: And then that data would never, 29 1 the data would become irrelevant. 2 MR. STRAWBRIDGE: I guess at some point, Your 3 Honor, if we are going to try to move some part of the case 4 forward, this seems like a pretty reasonable and narrow and 5 non-specific student way to move part of the case forward 6 during Fisher. 7 because of all the potential ramifications that Fisher might 8 have, then Your Honor will make her decision. 9 If Your Honor's inclination is to wait But I just, this seems to us like a small ask and 10 something that is easily done on a nonspecific basis and is 11 the kind of appropriate way to make progress on the case 12 during the next few months. 13 THE COURT: Yes, I mean, I am pretty 14 comfortable with the progress that I am pushing you to make 15 during Fisher. 16 enough but they are thinking it is way more than they want 17 to do so the fact that everyone is equally unhappy gives me 18 some assurance that I am reasonably on the right track. I know you are thinking it is not merely 19 So I think I am going to hold off on 33. I do 20 think 33, assuming that Fisher doesn't completely 21 reconfigure the landscape, is something you are going to be 22 entitled to. 23 so, you know, assuming you decide you want to give them now 24 sort of statistical trending information, that is up to you 25 but I am going to hold off on it until we have Fisher. I mean, they are going to be entitled to it 30 1 So I am going to hold off on 22, 23, 32 and 33. 2 am also going to hold off on 37 and 38 which is 3 consideration of the race neutral activities. 4 I think that is like the heart of Fisher. 5 All right. Really I On the over designation of documents, I 6 hope it doesn't get to this point but I will review the 7 documents in camera individually if I have to. 8 will just put that out there but I would really rather not 9 but if you all can't -- I am just, I am so disinclined to I mean, I 10 modify the terms of the protective order at this point that 11 it seems like the only available remaining alternative is to 12 review the documents and we will do that. 13 SFFA asked for a redaction log. I am not really, I 14 guess I don't really understand this one. Are you producing 15 redacted document, is that what you are doing? 16 MS. ELLSWORTH: 17 the student information redacted from them. 18 THE COURT: Certain of the documents have Is there anything being redacted 19 besides student information? 20 MS. ELLSWORTH: Well, for privilege, although 21 I don't believe that's actually implicated here, but student 22 name, address and other information. 23 probably, I'll preview what he might be saying, which is 24 that certain of the information that we've redacted from 25 hard copy documents that are produced is the subject of the Mr. Strawbridge is 31 1 dispute on the database fields as to, for example, high 2 school, so there is some interplay between those two 3 questions I think. 4 5 THE COURT: a redaction log? 6 7 MS. ELLSWORTH: No, it doesn't. It doesn't speak to it one way or the other, I don't think. 8 9 Does the protective order require MR. STRAWBRIDGE: I'll say this. The protective order anticipates that they are permitted to 10 redact certain sensitive information which we were willing 11 to agree to not realizing how it was ultimately going to 12 manifest itself. 13 So, and the modification, our request on the 14 redaction log, if they're redacting a word here or there and 15 you can see, you can discern from the document what 16 information has been redacted, we don't need a redaction log 17 on this. 18 17-page, approximately, a document that was redacted in its 19 entirety. 20 forward, if we can make sense of redactions, I mean, our 21 view here is going forward we need some kind of way in which 22 we can discern what these documents are and what the 23 information being redacted is. 24 25 But our concern was at one point there was a And if that's what's going to happen going And so for the non-contextual redactions, when they're redacting entire pages of documents, we think a log 32 1 is necessary. 2 (Whereupon, the Court and the Clerk conferred.) 3 THE COURT: Is that, what he says accurate? 4 MS. ELLSWORTH: Yeah, there was one document 5 which was an application file that was part of a training 6 binder I believe so it was an actual student application 7 file and that was redacted in full. 8 All the other documents I believe one can tell from 9 context what the, what it was that was being redacted so I 10 think the modification that Mr. Strawbridge has requested 11 is, aside from this one document, is consistent with what 12 has been done. 13 THE COURT: I am going to hold off on ordering 14 a log at this point; but if you are producing lots of 15 redacted documents in such a way that they can't figure out 16 what you're redacting, I will order some sort of limited log 17 on that. 18 So my suggestion is that maybe you can use labels, 19 student application or whatever. 20 a formal log. 21 you are redacting entire documents such that you can't 22 figure out what it is that you should get some help. 23 24 25 I am not going to require I think it is a reasonable request that when MS. ELLSWORTH: I appreciate that and I, understood. THE COURT: Okay. All right. These data 33 1 fields that you all are arguing about, some of these I just 2 can't understand like what is -- 3 MS. ELLSWORTH: Your Honor, before we get too 4 into the weeds on the database fields, there are individuals 5 in the courtroom who are not affiliated with the case. 6 These are pretty highly sensitive. 7 Honor wants to handle that but it is not -- 8 9 THE COURT: Okay. MS. ELLSWORTH: 11 THE COURT: 13 Let's hold off on that. Let's see what else we can do here. 10 12 I don't know how Your everything. Thank you, Your Honor. Let me make sure I am covering I am going backward on these letters. All right. So now I have in front of me, I am 14 moving backwards with these letters, now I have SFFA's 15 letter of February 10th which is document 134-1. 16 me if I go into things that shouldn't be discussed in this 17 setting but I think that they make a pretty good argument on 18 zip code and the high school information. 19 And stop And I know what your response is or I anticipated 20 that there are many high schools that only have one 21 applicant and they say that satisfies as -- that makes it 22 reveal too much information. 23 that point, that's sort of FERPA covered information, right. 24 So I think FERPA is the issue but -- and they argue, and I 25 think fairly persuasively, that there is other, that they But that, I don't think that 34 1 are not intending on identifying specific students, that 2 they're precluded from going and talking to those students 3 anyway even if they did identify them. 4 code and the high school is not itself personally 5 identifying information about anybody. 6 7 But, you know, zip And I guess I want to hear your thoughts on that. MS. ELLSWORTH: Thank you, Your Honor. I 8 mean, our argument is as we've laid it out which is that 9 particularly in conjunction with the information that has 10 already been produced and in conjunction with the fact that, 11 you know, for I think it's approximately half of the 12 admitted class, and they are the only students from their 13 high school, either admitted or in certain cases applied, 14 that goes beyond high school, for some it is in towns, for 15 some it's in the entire state, so it does come very close to 16 really making clear who these individuals are. 17 And we think, again, to Your Honor's point about 18 this, this is not a situation for all time, particularly 19 during the pendency of Fisher II, this type of information 20 going over perhaps unnecessarily is we think an intrusion on 21 the student and applicant privacy. 22 FERPA or not, it is still an intrusion on that privacy and 23 we think at this time it's not warranted. 24 25 Whether it's covered by That's our position on high school and zip code. understand Your Honor's view that it is not necessarily on I 35 1 its own individually identifying but in conjunction with the 2 other information, in conjunction with the sort of context, 3 we think it does actually render many of the applicants 4 quite easily identifiable and that is the -- 5 THE COURT: How hard would it be -- their 6 basic argument is that -- I think, correct me if I am wrong, 7 Mr. Strawbridge -- but if you had two students from the same 8 high school applying and they look alike and one is admitted 9 and one isn't, they want to know if that's been a racial 10 11 distinction; right? Am I right about that? MR. STRAWBRIDGE: We think that that's the 12 obvious example where it is going to be easiest to kind of 13 weed out any complicating factors, you've got the most 14 similarly situated to people in that case. 15 THE COURT: And I know you said, what did you 16 tell me the last name, that half of all the students are the 17 only persons from their high school to apply? 18 MS. ELLSWORTH: 19 THE COURT: Something like that, yes. So the information was only, if 20 you have only one person from a high school applying, the 21 information is irrelevant to you. 22 MS. ELLSWORTH: I should correct, Your Honor, 23 have for only the person admitted, not to apply. 24 know if that matters. 25 THE COURT: I don't So if you only have one person, 36 1 you have no comparison. 2 MR. STRAWBRIDGE: Well, until you get to the 3 fact that there are multiple admission cycles. 4 right, admitted one this year, only had one person apply 5 this year but the previous applicants for prior years. 6 I mean, I mean, so, two, second, we don't think it's 7 irrelevant. 8 similarly-situated people from the same state, from the same 9 city, from, who have other similarities. 10 It is still going to be a basis to determine THE COURT: What I am wondering is if there is 11 some way to give them generally what they want but exclude 12 the schools with really small numbers. 13 14 MR. STRAWBRIDGE: Can I make one point, Your Honor? 15 THE COURT: Yes. 16 MR. STRAWBRIDGE: I just want to make sure 17 that Your Honor is clear, because we did put this in the 18 letter. 19 Not only has the protective order prohibited us 20 from trying to contact these students, the protective order 21 actually prohibits us from making any effort to take the 22 information that's produced to us and identify them as in 23 trying to determine who from this high school applied that 24 year. 25 THE COURT: Right, I get that. I mean, the 37 1 point I was trying to make was that the information is 2 fairly generically identified and that there is multiple 3 levels of protection even after that information. 4 But it also seems to me that where you are dealing 5 with an individual student, we have one student each year, 6 that the information is not of much use. 7 useful to you is when you have two or three people from the 8 same school or the same zip code; right? 9 MR. STRAWBRIDGE: What is more I'm certainly not prepared 10 to sit here and say that a student's high school, that this 11 is the only context in which a student's high school is 12 relevant. 13 might be relevant and which it might be useful to know. 14 There are a lot of ways in which high school THE COURT: Is there some way to segregate out 15 the data so they get that information on high schools that 16 have more than five applicants? 17 MS. ELLSWORTH: Doing that would require a 18 cell-by-cell review and comparison against other data to 19 find out whether that this particular high school had 20 more -- 21 22 23 THE COURT: You can't just sort by that, you can't sort by number of people from a school and cut it? MS. ELLSWORTH: To my knowledge I don't know 24 that we could do that in a way that would be reliable. I 25 mean, we certainly have fields that relate to the number of 38 1 people who applied from a given school. 2 not aware if we can cut in that way. 3 would be comfortable relying on that. 4 incumbent upon us to actually review and determine what 5 could be produced and what couldn't which would be quite a 6 burdensome undertaking at this point in time. 7 THE COURT: I am just not, I'm I don't know that we I think we would feel I mean, I think in some form, I 8 mean, they're going to be entitled to that information and 9 the only question is whether we do it now or we hold off on 10 11 that. MR. STRAWBRIDGE: Just on that point, Your 12 Honor, this is information that is essential to analyzing 13 the material that we've already received so, I mean, this 14 is, we're just cleaning up on material that has already been 15 produced pursuant to an order of this Court. 16 that waiting for Fisher is going to achieve very much in 17 terms of protecting their privacy. 18 THE COURT: I don't think I am inclined to agree with him. 19 There are other ones of these that are discussed further in 20 this letter that I am inclined to not give them. 21 like more personally a subset of information but I'd like to 22 find a way to give them the basic geographical information 23 that they're looking for in some form or another. 24 25 That seems But if it's possible to be sensitive to your, you know, your representation that there are schools where it is 39 1 only one person, I think that -- it is not covered by FERPA. 2 I don't think it is really personally identifying 3 information but I am sensitive to the issue anyway. 4 there is some way to give them a meaningful sample of that, 5 I am inclined to do it. 6 inclined to order all but I just want to think about it. 7 what -- 8 9 So if And if there is not, I still may be MS. ELLSWORTH: So I think I have to confer on whether we can do a meaningful sample. I just don't, I 10 don't have that information. 11 would ultimately require us to do a manual review. 12 13 THE COURT: And, again, I do think it Is this like, I mean, I am envisioning some sort of massive Excel spreadsheet. 14 MS. ELLSWORTH: There is, but to determine 15 whether that person is the only person who applied and the 16 only person who admitted, was admitted, again, it may be 17 that this can be all done mechanically. 18 As to other of these fields I am certain that is 19 not the case. 20 don't have enough facility to be honest with how it might or 21 may not be cut to achieve what Your Honor is trying to 22 achieve in terms of the middle ground. 23 As to high school and zip I am just not, I MR. STRAWBRIDGE: 24 burden argument. 25 protections in place. I don't understand the This is a burden that -- there is already This burden is entirely self-created 40 1 and we're trying to sort through this. 2 easiest and least burdensome way is just to produce the 3 information and trust that the parties are not going to risk 4 an order of contempt. 5 THE COURT: I think that the I knew that that would be the 6 easiest and the least burdensome but they have some other 7 reservations about that that I am trying to accommodate 8 because they don't seem -- I think what they don't want to 9 produce here seems to me to be the least relevant 10 information to you. 11 I get that it is still relevant and you want it but 12 it seems less useful than some of the other information that 13 we are talking about. 14 from high school, you can figure out which three are getting 15 in and which seven aren't. 16 looking at; right? 17 I mean, if you have ten applicants That's what you want to be MR. STRAWBRIDGE: Certainly. I don't disagree 18 that it's particularly persuasive evidence but it is not the 19 only relevant evidence. I guess that's where I am just -- 20 THE COURT: No, I am not -- 21 MR. STRAWBRIDGE: 22 THE COURT: -- reservation. I am not suggesting that what you 23 are looking for is irrelevant; but the closer we get to 24 being able to identify a student, now or in the future, the 25 more careful I want to be, but I still want to give them 41 1 enough to work with. 2 big group of kids from high school, you should be able to 3 look at that information and figure out who is getting in 4 and who isn't, right? 5 And it seems to me that if there is a MR. STRAWBRIDGE: 6 confidential. 7 This is all highly the risk of -- 8 The attorneys are protected. THE COURT: I don't think I may give this to you but if they 9 can come up with a way that protects against the interests 10 that they're concerned about and isn't an onerous amount of 11 work, I am inclined to parse it out that way. 12 MS. ELLSWORTH: 13 the most useful way to proceed from here? 14 THE COURT: 15 can do, right. 16 So, Your Honor, what would be Why don't you let me know what you I mean, and then I will decide what I am going to do about it. 17 MS. ELLSWORTH: 18 THE COURT: Okay. If you tell me you can't do it, we 19 will make an evaluation of it. But if there is an easy way 20 to do it, I'd like to know that. 21 MS. ELLSWORTH: Okay. 22 in very short order one way or the other. 23 THE COURT: 24 format to discuss the UMRP information? 25 Okay. We will submit a letter MS. ELLSWORTH: Are you prepared in this I am prepared to discuss it 42 1 but I would ask that the individuals not associated with 2 this case be excused from the courtroom, if Your Honor is 3 willing to do that. 4 5 THE COURT: don't you submit in writing on that also. 6 7 I am not willing to do that so why MR. SKWRAO: I can, Your Honor. I can address at a high level -- 8 THE COURT: 9 identifying information in that field? 10 That is fine. MS. ELLSWORTH: Is there personally Is this the 11 "Visitas_Student_Host" table that Your Honor is looking at 12 on page five of the February 10th letter? 13 THE COURT: 14 MS. ELLSWORTH: 15 It is -- which letter are you -It's the February 10 -- I'm sorry, I don't have the docket number, Your Honor. 16 THE COURT: What page? 17 MS. ELLSWORTH: Page five of the letter. 18 There is a table called "Visitas_Student_Host." 19 a variety of fields relating to the Undergraduate Minority 20 Recruitment Programs. 21 THE COURT: 22 MS. ELLSWORTH: It contains Yes. So this, these are about host, 23 students who host admitted students in their dorm rooms for 24 Visitas Students weekend. 25 not names. The personally identifying, it's It's, as you see, gender and then there is other 43 1 information. 2 THE COURT: 3 MR. SKWRAO: These are the hosts? The hosts, the admitted -- excuse 4 me. Yes, the admitted students, those that are considering 5 whether or not to accept the offer of admission, the 6 information that is sort of parallel to this has been 7 produced to SFFA. 8 who are opening their dorm rooms. This is just about the current students 9 THE COURT: 10 that that is what that information was. 11 thinking this is -- 12 Is that -- I didn't understand MR. STRAWBRIDGE: Why are you I mean, Harvard has assigned 13 these hosts UMRP strength, UMRP deficiency -- I'm sorry, I 14 don't mean to, I apologize -- but if you look at the content 15 here, none of it is identifying information and all of it is 16 directly related to the UMRP, so that's the issue. 17 MS. ELLSWORTH: But, again, as Your Honor, as 18 we've said in our letter, we fail to see the relevancy of 19 this, these database fields to any statistical analysis that 20 SFFA might want to conduct. 21 22 23 THE COURT: I am inclined to agree with that. What is the -MR. STRAWBRIDGE: I mean, I don't want to 24 be -- I want to be sensitive to the privacy concerns but I 25 think that there is a very practical argument here that this 44 1 is an essential element of their recruitment of 2 undergraduates. 3 specific really to only the information about the host that 4 relates to the recruitment and the use of race. 5 is identifying information. The fields that we are looking for are very None of it 6 If Harvard thinks that all, that these ratings are 7 important enough to assign to the hosts, then it seems like 8 it might be relevant to our analysis as to how they're 9 matching these students up, what they're doing, what is the 10 significance of some of these particular categories. 11 specific only to the UMRP recruitment so we think it's 12 relevant. 13 THE COURT: 14 go over now. 15 It's I am not going to order that that over before Fisher. 16 17 18 19 20 It just doesn't seem important enough to put Let me make sure I haven't missed anything else in this letter while I am here. So I am deferring on the zip code and the high school till I hear from you all. You have withdrawn -- I'm on page five -- you have 21 withdrawn 5B. 22 UMRP information on page five. 23 I am not going to order production of the You have withdrawn alumni interviewer fields. 24 not going to require production at this point of the 25 categories identified on page 6, Section D. I am 45 1 2 The two categories that, there are two categories that -- 3 4 MR. STRAWBRIDGE: Your Honor, if I just may interrupt? 5 THE COURT: Yes. 6 MR. STRAWBRIDGE: I just want to clarify one 7 point and that is I understand your ruling with respect to 8 all these fields, it is specific to the pre Fisher period? 9 THE COURT: Yes. Then there are two 10 categories that I understand that you are still asking for. 11 I am trying to find it in these documents so I can refer 12 you. 13 14 15 16 17 18 One of them is -- I have these in my notes, I know you asking for them but I can't find where it was. I will come back to that. I'm sure it will jump out at me in the next letter. If you can look at the letter, it's docket 133, the February 8th letter, Appendix D. 19 MS. ELLSWORTH: 20 THE COURT: 21 MS. ELLSWORTH: 22 THE COURT: 23 MS. ELLSWORTH: D as in dog, Your Honor? D as in dog. Thank you. The first -Your Honor, I don't -- I 24 apologize. I don't believe that -- Mr. Strawbridge can 25 correct me -- but I don't believe that Numbers one and two 46 1 are being requested anymore on the February 10th letter. 2 THE COURT: I'm on the February 8th letter. 3 MR. STRAWBRIDGE: The February 10th, the list 4 in the February 10th letter is our list for the time being, 5 subject to revisiting after Fisher. 6 MS. ELLSWORTH: 7 THE COURT: 8 The list in the February 10th letter. 9 10 Yes. MS. ELLSWORTH: It begins I believe on page four and goes through to six, interspersed with text. 11 MR. STRAWBRIDGE: We took their appendixes 12 from the February 8th letter and dropped some of our 13 requests so what's in the February 10th letter is what we're 14 seeking -- 15 16 17 18 19 THE COURT: That is why I couldn't find it in that letter. So if they produce zip code and high school, does that functionally cover what you are looking for? MR. STRAWBRIDGE: Well, there is a number of 20 fields that kind of fall into that category so I don't know 21 if we need to be more specific. 22 page four, for example, is all high school information. 23 I mean, the first column on Most of what's in the second column is zip code or 24 postal code information, city information. 25 other exceptions. There is a few 47 1 I mean, I won't, I don't know the best way to do 2 this with the courtroom being open at this time, although I 3 know that we have an objection to labeling these fields in 4 particular as highly confidential information. 5 easier to just take five minutes in chambers to somehow 6 address them specifically, we can defer to whatever Your 7 Honor wants to do. 8 9 THE COURT: But if it's Can we do that, can they take a look at what they can easy produce on high school and zip 10 code and then whatever remains after that just put in a 11 letter, another letter? 12 MR. STRAWBRIDGE: 13 MS. ELLSWORTH: Okay. Do we have a time? We can probably, we can get a 14 letter out, what we can do, high schools I'll say -- what's 15 today? Thursday -- I'll say Monday to not over promise. 16 THE COURT: We will get an order out in the 17 meantime. 18 will get that out I hope today or tomorrow. 19 MR. STRAWBRIDGE: 20 compromises if they'd like to. 21 We will just leave some loose ends on it. THE COURT: We We're also happy to do Well, I mean, if there is some way 22 to cut that so that they get what they are looking for and 23 some significant percentage of applicants, I would be 24 content with that till after Fisher. 25 is not. If there is not, there I'm happy to make a decision on it but I'm inclined 48 1 to give them that information. 2 figure out if there is any way to do it. 3 MS. ELLSWORTH: It would be great if you can In talking about high school 4 and zip code and fields that relate to that, Your Honor, 5 correct? 6 7 THE COURT: I mean, I can't actually figure out what all of these -- 8 9 Yes. MS. ELLSWORTH: largely correct. Yes, Mr. Strawbridge is Many of them relate to high school, zip 10 codes or others relating to military status and there is a 11 set of fields relating to honors and extra curriculars. 12 There are a few other outliers here but those are the three, 13 big buckets I think right now. 14 THE COURT: I think we've already, the honors 15 and extracurricular you sort of already resolved; right? 16 took care of that the last time you were here. 17 MR. STRAWBRIDGE: We I did not understand that to 18 be the case, Your Honor. 19 fields. 20 produce any of the honors fields. 21 22 23 My understanding is they're still refusing to THE COURT: that. This is the name of the actual Okay. I thought we had resolved I mean -- all right. MS. ELLSWORTH: If I could just, whether this 24 helps or not I don't know, but as to the honors fields and 25 the extracurricular related fields that are in this 49 1 February 10th letter, these are narrative entries so they do 2 contain the types of examples Your Honor provided at the 3 last hearing -- 4 THE COURT: I am not inclined to, I am not 5 inclined to -- I thought we resolved that. 6 inclined to have you, require you to disclose those now. 7 MR. STRAWBRIDGE: I am not Well, just to clarify, Your 8 Honor, my understanding was you had, I thought that your 9 guidance from the last one was that if there were 10 nonspecific identifying information in the field 11 notwithstanding the fact that it's an entering (ph.) field, 12 they should produce it. 13 hard to figure out so we don't want to produce anything. 14 don't, I am not surprised by that response from them but, 15 again, this is another example where they're imposing a 16 burden on themselves to try to restrict what they have to 17 disclose that is then being used as the basis to restrict 18 all of it. 19 THE COURT: Their response was that it is too I Well, I am sensitive to the issue 20 that if you say you have a high school class and there is a 21 class president, that you can fairly identify who that 22 student is, right? 23 There is only one class president and -- MR. STRAWBRIDGE: If we're willing to violate 24 the protective order and the risk of contempt from Your 25 Honor, yes, we could, but we're not willing to do that. 50 1 MS. ELLSWORTH: Your Honor, our position is 2 not that it's too difficult to figure out how to provide 3 only in a non-identifying version the honors and 4 extracurriculars, out position is that, particularly in this 5 posture of the case, it is incredibly burdensome to do so. 6 Over 70,000 fields on a cell-by-cell basis to determine 7 whether it simply says theater major or it says, you know, 8 Pippin in Pippin. 9 MR. STRAWBRIDGE: I think they should produce 10 Pippin in Pippin. 11 was Pippin at the high school. 12 not allowed to go figure it out. 13 all -- and there is no indication in their letter as to how 14 many of these fields specifically say this. 15 We're not going to -- we don't know who We are not going to, we're This is, I mean, with The non-burdensome -- it's obviously relevant 16 information. 17 information that would be useful to our expert. 18 the protective order covers this. 19 Their expert identified this information as THE COURT: It's just, I mean, I take your point and I am 20 trying to accommodate you in some way; but my initial 21 thought was that pre Fisher we do sort of structural 22 completely non-identifying information like a creative 23 framework that would allow discovery to happen once Fisher 24 was resolved. 25 beyond that and I am pretty well reaching a limit where I am I have already myself slipped significantly 51 1 not going to slip any further on it. 2 So only because I think that the more we do, the 3 more there is going to have to go back and be redone after 4 Fisher and that's what I am seeking to avoid. 5 a complete stay because the stuff that doesn't need to be 6 redone I want to keep going forward which is sort of 7 framework stuff but you've already pushed me sort of back 8 beyond where I intended to go and I am not going much 9 further, if any further. 10 All right. I don't want So that's -- so we will get an order 11 out. I'm going to hold off on these fields until I 12 understand from Harvard what they can do. 13 to think about that because I may just have talked myself 14 out of giving the high school and zip code information too 15 in terms of thinking about where I started and where I am 16 likely to end up. 17 MR. STRAWBRIDGE: 18 THE COURT: And then I want Just, I mean -- Hold on. Someone more important 19 than you wants to talk to me. 20 (Laughter.) 21 (Whereupon, the Court and the Law Clerk conferred.) 22 THE COURT: So what Jonathan is suggesting is, 23 he is wondering if there is some way that you can identify 24 these five people went to the same high school but without 25 identifying the zip code or the high school? 52 1 MS. ELLSWORTH: 2 a high school name, is that the question? 3 THE COURT: Meaning like a code inside of Well, just some of way saying so 4 that, you know which people are grouped together, right. 5 So, I happened to go to Newton North so say Newton North. 6 You have 50 kids from Newton North and what Jonathan is 7 suggesting is to say that these 50 kids went to the same 8 high school but they don't identify the high school or the 9 zip code so you know they're similarly situated but you 10 11 don't know where they're similarly situated. MS. ELLSWORTH: I don't believe there is a 12 field that allows you to do that. 13 of the high school related fields, one is name, one is the 14 town of the high school, one is what's called a CBC code 15 which is the College Board Code for that high school. 16 one could take that information to then assign a number, 17 assign some sort of grouping to everybody who came from that 18 high school but I don't think that exists. 19 standalone field. 20 I mean, there is, as one So That's sort of a That's a sorting process. THE COURT: That's interesting. I haven't 21 thought it through. 22 but, you know, that might be an interesting way to approach 23 it, right, because then you can give information like class 24 president and it's completely non-identifying. 25 He just sprung it on me this second MS. ELLSWORTH: Right? I think it could be. I mean, 53 1 their state information has already gone over, there is 2 other information, a lot of information has been produced. 3 We're talking about a pretty small number of database fields 4 that we're left discussing here, at least at this juncture 5 of the case, so. 6 7 8 9 THE COURT: It is something to think about. It is an interesting idea. MR. STRAWBRIDGE: A counterpoint would be is that there is some significant inefficiencies in dribbling 10 out this information over small periods of time. 11 going to deal with making progress during the case, this is 12 among the most essential information in the entire database. 13 Given the other protections in place, I think we should just 14 dispense with imposing burdens and we may just want to 15 produce this information now. 16 THE COURT: If we're Let me know, Ms. Ellsworth, if you 17 take a look at the data that you can easily offer. And if 18 you want to stick to your position that you want it withheld 19 until after Fisher, I really haven't made up my mind but I 20 take his point that it is important information to him and 21 that, you know, it is important information to him and it 22 doesn't really implicate specific privacy interests. 23 why don't you take a look at it and let me know what you can 24 do and we will get an order out by -- so I'd like to get it 25 out today or tomorrow but Kelly who is the law clerk who is But 54 1 working on this is out until Monday so we may not get it out 2 until Monday. 3 it but we will get out as much of an order as we can no 4 later than Monday. I may hold it off for her to take a look at 5 And you all can, you'll send a letter. 6 Mr. Strawbridge, you will no doubt send a letter back and 7 we'll resolve the remaining issues. 8 MS. ELLSWORTH: 9 THE COURT: 10 Thank you, Your Honor. What am I -- MR. STRAWBRIDGE: Perhaps, I have seen this 11 work in other cases, we're willing to try something new. 12 Perhaps we could meet and confer on this issue and submit a 13 joint letter, just to expedite the process. 14 THE COURT: 15 MS. ELLSWORTH: 16 However you all -- do to figure out our technical capabilities. 17 THE COURT: 18 MS. ELLSWORTH: 19 THE COURT: 20 All right. Nothing from -- Do you want to set a date for our MS. ELLSWORTH: I think we would like another date. 23 MR. STRAWBRIDGE: 24 THE COURT: 25 Anything else today? next status conference? 21 22 Yes, I have some homework to you looking for? I think that's a good idea. So six weeks, a month, what are 55 1 MS. ELLSWORTH: 2 THE CLERK: 3 How about Wednesday, March 30th, at ten a.m.? 4 5 Four or five weeks is fine. MS. ELLSWORTH: That's fine for me, Your Honor. 6 MR. STRAWBRIDGE: 7 THE COURT: 8 MR. STRAWBRIDGE: 10 THE COURT: Sure. The exact date is of little consequence. 12 All right. 13 14 If it is not, just let us know and we can easily move it. 9 11 I think that's fine with me. Thanks, everybody. MS. ELLSWORTH: Thank you very much, Your Honor. 15 MR. STRAWBRIDGE: 16 THE CLERK: Thank you, Your Honor. All rise. Court is adjourned. 17 18 (WHEREUPON, the proceedings were recessed at 12:20 19 p.m.) 20 21 22 23 24 25 56 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: March 3, 2015

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