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

Filing 147

Letter/request (non-motion) from Harvard Regarding Discovery of SFFA . (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Ellsworth, Felicia)

EXHIBIT 2

Ten Post Office Square
8th Floor South PMB #706
Boston, MA 02109
617.227.0548
www.consovoymccarthy.com

April 1, 2016
VIA EMAIL
Felicia H. Ellsworth, Esq.
WilmerHale
60 State Street
Boston, MA 02109
Re:

SFFA v. Harvard: Document Production, Discovery Responses, and
Custodians

Dear Felicia:
I write on behalf of Students for Fair Admissions (“SFFA”) in response to your
letters of February 26 and March 17, 2016, and following up on our telephone call of
March 7, 2016, regarding SFFA’s responses to Harvard’s Requests for Production
(“RFPs”) and Interrogatories.
Associational Privilege
Before addressing the specific items below, we must first note our disagreement
with Harvard’s apparent view that none of its extremely broad requests implicates
the associational privacy rights of SFFA’s membership. To the contrary, Harvard is
seeking the identity of every single member of SFFA, along with detailed information
about when each member joined, their individual financial contributions, and their
plans for higher education. Harvard also seeks widespread access to virtually all
communications among the members and leaders of the organization.
To begin, Harvard’s requests amount to a fishing expedition and do not actually seek
documents relevant to assessing SFFA’s associational standing. “An association has
standing to bring suit on behalf of its members when its members would otherwise
have standing to sue in their own right, the interests at stake are germane to the
organization’s purpose, and neither the claim asserted nor the relief requested
requires the participation of individual members in the lawsuit.” Friends of the
Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 181 (2000). Here, the
organizational documents SFFA has already produced, along with its interrogatory
responses and other discovery SFFA has agreed to produce, provide the information
necessary to resolve this question. First, those documents provide the information
needed to determine whether at least one of SFFA’s members would have standing

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to sue in his or her own right. Second, those documents provide the information
needed to determine whether this litigation is germane to SFFA’s purpose. Third, it
is indisputable that these statutory and constitutional claims, as well as the request
for declaratory and injunctive relief, do not require participation by individual SFFA
members. See Playboy Enterprises, Inc. v. Pub. Serv. Comm’n of Puerto Rico, 906 F.2d
25, 35 (1st Cir. 1990) (citing Int’l Union, United Auto., Aerospace & Agr. Implement
Workers of Am. v. Brock, 477 U.S. 274, 286 (1986)). But even if this were an open
issue, which it is not, those documents will provide Harvard the information needed
to resolve it too.
Contrary to your claims, then, there is no basis for allowing Harvard to delve into
the inner workings of the organization to answer the pertinent legal questions about
standing. If Harvard believes, however, that the wide-­‐‑ranging discovery it seeks is
needed to resolve any of the pertinent issues regarding associational standing, it
should provide authority supporting each of its requests. The conclusory assertions
Harvard has made so far are woefully insufficient.
Secondly, even if some of the internal documents Harvard seeks were somehow
relevant to the standing inquiry, they nonetheless are protected from disclosure by
the First Amendment. The constitutional freedom of association ensures that groups
of individuals can associate, organize, and advocate without having to disclose
confidential details about the association’s communications, deliberations, financial
information, recruitment efforts, and other protected activities. This is precisely
why the Supreme Court has emphasized that the “inviolability of privacy in group
association may in many circumstances be indispensable to preservation of freedom
of association, particularly where a group espouses dissident beliefs.” NAACP v.
Patterson, 357 U.S. 449, 462 (1958).
Harvard appears to believe that the associational privilege somehow has less force
because SFFA’s members “knew that SFFA was a litigation vehicle upon joining and
should reasonably have expected that information about them could be disclosed in
the course of such litigation.” SFFA is aware of no legal basis for this argument, and
Harvard provides none. This could be said of any number of civil rights,
environmental, and other public interest organizations, but Harvard fails to identify
any examples where such broad, invasive discovery was permitted into the
membership and operations of such entities. Indeed, if anyone joining such an
association waived their privacy rights, the associational privilege would be
meaningless. The protections afforded to civil-­‐‑rights groups like the NAACP also
extend to SFFA.
Harvard incorrectly asserts that SFFA must make a “compelling showing” that
disclosure of the requested information will result in “harassment of current
members.” This misstates the governing legal standard. As the First Circuit has
explained, an association need only make a prima facie showing that the discovery

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will lead to “harassment of current members, a decline in new members, or other
chilling of associational rights.” United States v. Comley, 890 F.2d 539 (1st Cir. 1989)
(emphasis added). This type of discovery would clearly have a chilling effect here on
SFFA’s membership: Harvard’s knowledge of the identities of SFFA’s members
would reasonably lead many of them to fear retaliation when they or their family
members seek to apply to Harvard in the future. Moreover, “compelled disclosure of
[SFFA’s] membership is likely to affect adversely the ability of [SFFA] and its
members to pursue their collective effort to foster beliefs which they admittedly
have the right to advocate, in that it may induce members to withdraw from the
Association and dissuade others from joining it because of fear of exposure of their
beliefs shown through their associations and of the consequences of this exposure.”
Patterson, 357 U.S. at 462.
Given SFFA’s entirely reasonable concerns, “the burden then shifts to the [party
seeking discovery] to show both a compelling need for the material sought and that
there is no significantly less restrictive alternative for obtaining the information.” Id.
Here, Harvard has no basis for undertaking a fishing expedition and no need for
details regarding SFFA’s membership, its finances, and its internal communications.
As noted above, this information simply is not relevant to assess SFFA’s standing, let
alone “proportional to the needs of the case, considering the importance of the
issues at stake in the action.” Fed. R. Civ. P. 26(b)(1).
Harvard’s Specific Requests for Production
With respect to Harvard’s request for documents that precede the incorporation of
SFFA on July 28, 2014, SFFA sees no basis for such production. SFFA has no parent
or corporate affiliates, and any documents predating its formal incorporation are
likely to involve privileged communications. SFFA thus stands by its objections to
Harvard’s request for documents before that date. To the extent that Harvard seeks
specific information pre-­‐‑dating SFFA’s existence, it should articulate what it seeks
and why such material would be relevant to standing.
RFP Nos. 1-­‐‑3. In response to RFP No. 1, SFFA has produced documents relating to its
organizational structure. On our March 7 call, you specified that Harvard is also
requesting information relating to the Project on Fair Representation (“POFR”).
POFR is a separate entity from SFFA, and such documents therefore have no bearing
on the issue of SFFA’s standing in this case. The mere fact that Edward Blum is
involved in both associations does not make such documents relevant here.
As noted previously, RFP Nos. 2-­‐‑3 seek documents that are irrelevant to the
standing inquiry, would be unduly burdensome to produce, and implicate the First
Amendment rights of SFFA and its members. Without waiving this objection, and as
part of a comprehensive resolution of discovery disputes regarding SFFA’s standing,

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SFFA may be willing to search for and produce meeting documents, such as minutes,
calendar invites, and the like.
RFP Nos. 4-­‐‑5. As we clarified after receiving your February 26 letter, SFFA’s
production on February 10 included items relating to SFFA’s incorporation and
governance in response to these requests. Moreover, SFFA’s production is ongoing,
and we are confirming whether there is additional IRS correspondence, as discussed
during our call on March 7.
RFP No. 7. SFFA plans to provide information regarding its standing representatives,
but Harvard is not entitled to materials concerning each of SFFA’s thousands of
members for all of the reasons set forth above. While Harvard may test the standing
of the individuals SFFA relies upon, it may not conduct a fishing expedition into
SFFA’s membership.
Nor is the Protective Order sufficient to address these concerns, particularly in light
of Harvard’s own oft-­‐‑stated view that it is entitled to redact or withhold sensitive
material notwithstanding that Order. SFFA is entitled to take the same cautious
approach Harvard has taken with respect to its production of confidential and
sensitive information.
RFP No. 8. SFFA has provided information relating to its standing representatives as
identified in the Complaint, including the date they joined SFFA, the cycles in which
they have or plan to apply for admission, and other identifying details. Moreover,
Harvard has access to the application materials of individual applicants, which
includes relevant information about their academic and other credentials. SFFA
continues to believe that this request seeks documents and other information that
are far afield from the standing inquiry, would be unduly burdensome to produce,
and implicate the First Amendment rights of SFFA and its members.
Without waiving these objections, and as part of a comprehensive resolution of
discovery disputes regarding SFFA’s standing, SFFA may be willing to search for and
produce additional information about its individual standing members, provided
that Harvard and SFFA can reach agreement on a reasonable scope of that additional
information.
RFP Nos. 10-­‐‑12. The associational privilege generally protects against the disclosure
of information regarding SFFA’s finances (RFP No. 10), recruitment efforts (RFP No.
11), and fundraising activities (RFP No. 12) none of which is relevant to standing
notwithstanding Harvard’s unsupported claim that this information is “directly
relevant to any associational standing analysis.” Thus, SFFA requests that Harvard
identify with specificity what items it seeks pursuant to these requests and explain
how such information would be relevant to standing. If Harvard can do so, without
waiving this objection, and as part of a comprehensive resolution of discovery

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disputes regarding SFFA’s standing, SFFA may be willing to supplement its
discovery responses to address any legitimate need for this information.
RFP No. 14. SFFA has agreed to produce documents and published materials
relating to its mission and formation. Harvard has not explained why unpublished
materials, including internal emails that predate SFFA’s incorporation, are relevant
to the standing inquiry. SFFA continues to believe that this request seeks documents
and other information that are far afield from the standing inquiry, would be unduly
burdensome to produce, and implicate the First Amendment rights of SFFA and its
members. Please see SFFA’s further responses regarding SFFA custodians below.
RFP No. 15. SFFA has produced organizational documents sufficient to establish its
standing in this matter. To the extent that Harvard is seeking documents concerning
the identities and activities of other individual members, SFFA continues to believe
that this request seeks documents and other information that are far afield from the
standing inquiry, would be unduly burdensome to produce, and implicate the First
Amendment rights of SFFA and its members.
RFP No. 16. As discussed on March 7, SFFA is reviewing its files for non-­‐‑privileged
materials referenced in or relied upon by the Complaint and responsive to this
request. Production of those materials is forthcoming.
Harvard’s Interrogatories
Interrogatory No. 2. SFFA’s two new board members are JZ “Joe” Zhou and Edward
Chen. SFFA will supplement its interrogatory responses to reflect its current board
membership at a mutually convenient point in time prior to the close of discovery.
Interrogatory No. 6. Harvard’s request for the identities of SFFA’s entire
membership seeks information far afield from the standing inquiry, that would be
unduly burdensome to produce, and which implicates the First Amendment rights
of SFFA and its members. To the extent that SFFA relies upon individual members
for standing, it has provided relevant information relating to those members.
Without waiving its objections, and as part of a comprehensive resolution of
discovery disputes regarding SFFA’s standing, SFFA may be willing to supplement
its discovery responses, provided that Harvard and SFFA can reach agreement on a
reasonable scope of that additional information.
Harvard ESI and Custodians
Your March 17 letter regarding proposed custodians for ESI discovery of Harvard’s
admissions process is unreasonable and fundamentally misunderstands the scope of
discovery that will be necessary in this case. Harvard essentially stands by its initial
proposal of eight admissions personnel and three non-­‐‑admissions personnel a

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total number of custodians that represents a fraction of the number of admissions
officers and other personnel with relevant information at Harvard. Such a small
number of custodians is insufficient to provide an adequate record from which the
Court can give the required “close analysis to the evidence of how the process works
in practice.” Fisher v. Univ. of Texas at Austin, 133 S. Ct. 2411, 2421 (2013). As a data
point, we note that the University of North Carolina-­‐‑Chapel Hill initially proposed
twenty-­‐‑four custodians.
Harvard’s claim of the alleged burden is unpersuasive. Modern software permits
electronic elimination of any duplicative e-­‐‑mails, ensuring that they need only be
reviewed once. And without a discussion of search terms and the number of hits
they yield, it is impossible to do anything but speculate about the alleged volume of
documents. We therefore do not believe that ESI can be meaningfully negotiated
without discussing search terms and custodians together.
Notwithstanding Harvard’s unrealistically small number of proposed custodians,
SFFA is willing to adjust its proposal in an effort to negotiate the scope of discovery
in good faith. We expect Harvard to do the same.
SFFA is willing to limit its request to the following additional admissions custodians,
in addition to the eight Harvard has agreed to:
Jessica Clark Bryan Sr. Admissions Officer
Katie Claret Admissions Officer
David Evans Sr. Admissions Officer
Maxwell Dikkers Admissions Officer
Kaitlin Howrigan Associate Director for Recruitment/Sr. Admissions
Officer
Niki Johnson Sr. Admissions Officer
Chris Looby Sr. Admissions Officer
Mary Magnuson Associate Director of Financial Aid/Sr. Admissions Officer
Christine Mascolo Associate Director of Admissions/Director of
Transfer/Athletics Coordination
Lucerito Ortiz Sr. Admissions Officer/Undergraduate Minority
Recruitment Program
Timothy Smith Sr. Admissions Officer
Meg Brooks Swift Associate Director of Financial Aid/Director of Student
Employment/Sr. Admissions Officer
Kathryn Vidra Associate Director of Financial Aid/Sr. Admissions Officer
Brock Walsh Admissions Officer
Caroline Weaver Admissions Officer
Kanoe Williams Admissions Officer
Pharen Bowman Admissions and Financial Aid Officer
Amy Lavoie Director of Digital Communications

April 1, 2016
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Victoria Marzilli Manager of Social Media Recruitment
Tia Ray Admissions Officer/Undergraduate Minority Recruitment Program
SFFA is also willing to modify its request for non-­‐‑admissions personnel, in addition
to the three that Harvard has agreed to:
Alan M. Garber Provost
Judith D. Singer Sr. Vice Provost for Faculty Development and Diversity
Lisa Coleman Chief Diversity Officer and Special Assistant to the President
Guido Guidotti Member, Standing Committee on Admissions and Financial
Aid
Joseph D. Harris Member, Standing Committee on Admissions and
Financial Aid
Michael D. Mitzenmacher Member, Standing Committee on Admissions
and Financial Aid
Robert M. Woollacott Member, Standing Committee on Admissions and
Financial Aid
Amir Yacobi Member, Standing Committee on Admissions and Financial
Aid
Tamara Rogers Alumni Affairs and Development
Philip Lovejoy Harvard Alumni Association
Of course, this modified proposal is made without prejudice to SFFA’s ability to
request additional custodians based on what is uncovered in discovery.
Finally, as to a time frame, SFFA notes that the Court has not held that the relevant
time period for production of admissions database information is two years. Rather,
it has limited Harvard’s production obligations to two application cycles pending the
outcome of Fisher II, and it has not otherwise ruled on the appropriate time frame.
That said, and subject to Harvard’s willingness to find common ground with respect
to custodians and search terms, SFFA is willing to discuss limiting the date range of
e-­‐‑mail discovery from the initial four years it requested.
SFFA ESI and Custodians
Finally, expansive ESI discovery of SFFA custodians requested by Harvard is not
appropriate at this time. Your March 17 letter states that “the Court has permitted
discovery relating to SFFA’s standing to proceed forward in full at this time.” In fact,
the Court’s March 11 Order makes clear that “[t]he Court does not anticipate that
responding to [requests relating to SFFA’s standing] will require Plaintiff to conduct
large-­‐‑scale searches or productions of email communications or other electronically
stored information.” 3/11/16 Order at 3. We thus disagree with your
characterization of the Court’s March 11 Order.

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As noted above, SFFA disputes that any ESI discovery is necessary or appropriate for
determining SFFA’s standing to bring this action. SFFA may be willing to supplement
its discovery responses with some additional organizational documents and
information about its individual standing members, provided that Harvard and
SFFA can reach agreement on the scope of that information. But your expansive
request for electronic discovery from all SFFA Board members plus an unknown
number of SFFA members is unreasonable.
We look forward to your response and will make ourselves available for a meet and
confer if necessary to advance these discussions.
Sincerely,
/s/ Patrick Strawbridge
cc:

William S. Consovoy, Esq.
Michael Connolly, Esq.
Paul Sanford, Esq.