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 [e-mail] 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)

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
[phone]

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
[phone]

DATE: March 3, 2015