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

Filing 152

Transcript of Status Conference held on April 29, 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: Cheryl Dahlstrom at [e-mail] Redaction Request due 5/31/2016. Redacted Transcript Deadline set for 6/10/2016. Release of Transcript Restriction set for 8/8/2016. (Scalfani, Deborah)

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UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

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STUDENTS FOR FAIR ADMISSIONS,
INC.,
Plaintiff,
vs.
PRESIDENT AND FELLOWS OF
HARVARD COLLEGE, et al,
Defendants.

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) CA No. 14-14176-ADB
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BEFORE:

THE HONORABLE JUDGE ALLISON D. BURROUGHS

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STATUS CONFERENCE

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John Joseph Moakley United States Courthouse
Courtroom No. 17
One Courthouse Way
Boston, MA 02210
Friday, April 29, 2016
2:45 p.m.

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Cheryl Dahlstrom, RMR, CRR
Official Court Reporter
John Joseph Moakley United States Courthouse
One Courthouse Way, Room 3510
Boston, MA 02210
Mechanical Steno - Transcript by Computer

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APPEARANCES:

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ON BEHALF OF THE PLAINTIFF:

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CONSOVOY, McCARTHY, PARK PLLC
By: William S. Consovoy, Esq.
3033 Wilson Boulevard
Arlington, Virginia 22201
CONSOVOY, McCARTHY, PARK PLLC
By: Michael H. Park, Esq.
Three Columbus Circle
New York, New York 10024
BURNS & LEVINSON LLP
By: Paul M. Sanford, Esq.
One Citizens Plaza
Providence, Rhode Island 02903
CONSOVOY, McCARTHY, PARK PLLC
By: Patrick Strawbridge, Esq.
Ten Post Office Square
Boston, Massachusetts 02109
ON BEHALF OF THE DEFENDANTS:
WILMER CUTLER PICKERING HALE and DORR LLP
By: Felicia H. Ellsworth, Esq.
60 State Street
Boston, Massachusetts 02109
Also Present:

Ara Gershengorn, Esq., Harvard Office
Of General Counsel

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P R O C E E D I N G S

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THE CLERK:

This is Civil Action 14CV14176, Students

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For Fair Admissions v. President and Fellows of Harvard

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College.

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Will counsel identify themselves for the record.
MR. CONSOVOY:

Good afternoon, your Honor.

William

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Consovoy, on behalf of Students For Fair Admissions, along with

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Paul Strawbridge, Paul Sanford, and Michael Park.

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MS. ELLSWORTH:

Felicia

Ellsworth on behalf of President and Fellows of Harvard

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College.

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10:16

Good afternoon, your Honor.

Counsel.

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And with me is Ara Gershengorn, Office of General

THE COURT:

Okay.

I have the letters in front of me

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over the discovery dispute, and we'll get to that.

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anything else we need to cover today just so that I know what

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we're doing?

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MR. CONSOVOY:

Is there

Your Honor, we'd like to cover

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today would be a good day to make a plan for that given we may

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10:17

post-Fisher.

I think we're getting close now, and we think

-- we'd like to think that the next thing we'll do is come back

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and see you after Fisher, so we'd like to talk about that at

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the appropriate opportunity.

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THE COURT:

Okay.

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not apt to be for/for.

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It is one of those decisions that's

for/for.

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I guess that cannot possibly be

So at this judicial conference that I was just at,

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Supreme Court update.

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about a lot of cases and how they thought they would turn out

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and what it would mean for us all going forward.

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got to Fisher, which they did cover, they basically said it's

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going -- there's seven justices participating.

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three on this side and three on this side.

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jump ball what Kennedy is going to do.

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they had -- Erwin Chemerinsky and Paul Clement gave, like, a

and see.

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And they both gave a lot of predictions

We know there's

And it's really a

We'll all have to wait

So, happily, I did not travel to South Carolina

specifically for that analysis.

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And when they

Ungratifying.

So we can talk about post-Fisher.

I mean -- again,

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I'm happy to hear you on that.

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sense to me, is that Fisher comes out.

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get together a week later.

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to actually make a plan post-Fisher when we -- sure.

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MR. CONSOVOY:

It would seem to make the most
We read it and then we

I'm not -- I think it's difficult

We agree.

Our proposal was a

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letters to the Court a week after -- simultaneous as to what

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procedural one, which would be to -- the parties would submit

they think Fisher means to the case and what the next steps

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should be so that we can come in when you're ready to see us,

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ready to make some decisions and, from our view, hopefully,

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move forward.

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view.

And we'll see whether Harvard has a different

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THE COURT:

That seems reasonable to me.

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MS. ELLSWORTH:

I certainly agree that we can't

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comprehend anything before Fisher comes down.

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problem with the idea of submitting letters and then setting a

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time to come in and talk about what makes sense assuming that

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Fisher doesn't do something that even changes that, but I find

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that hard to imagine.

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THE COURT:

I'm happy to do that.

We don't have a

I start 13 weeks of

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trial on Monday, two cases, all with out-of-town lawyers.

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agreed to try the case 10 to 4 so that people didn't have to be

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away from their families for any longer than necessary.

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know, we can definitely have a conference.

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10:21

So I

You

scheduling is going to be a little Higley Pigley.

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So why don't we do that.

It's just the

How much time do you want

after Fisher to submit your letters?

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MR. CONSOVOY:

Seven days will be sufficient for us.

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MS. ELLSWORTH:

I mean, I might ask for a little bit

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longer.

I don't know.

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maybe ten days just to give everyone time to actually digest

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it.

I don't anticipate it will be a quick read.

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It depends on when it comes out and --

MR. CONSOVOY:

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THE COURT:

No objection here.

Why don't we just take a couple of weeks.

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I mean, my schedule is crazy, and it's -- we may as well take

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some time to do it.

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and maybe file one letter instead of two, that would be nice.

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But if you need to file the two letters, I can -- it's

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obviously fine.

If it was at all possible for you to talk

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So why don't you take two weeks, and then let me know

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in those letters how much time you would like before we meet

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for a conference.

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that's fine.

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that's fine, too.

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you'd like for time, okay?

If you wanted a week after the letters,

If you want a couple of weeks after the letters,
But why don't you put in the letters what

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MR. CONSOVOY:

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THE COURT:

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Yes, your Honor.

As I say, it's going to be early; it's

going to be later; it's going to be lunch.

So -- at least till

July.
All right.

So despite the fact that SFFA filed a

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single-spaced, 14-page document this morning, I've read all the

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paperwork that's come in.

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have to say, Miss Ellsworth, that I think that SFFA has the

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better part of this argument.

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membership.

I have even read the cases.

And I

They have an organization with

It's not a nonmembership organization.

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time and discuss them, but I think that your request is overly

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I'm happy to go through the requests sort of one at a

broad given the legalities underlying associational standing.

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MS. ELLSWORTH:

Your Honor, I guess I'd like to

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address the idea of a membership organization first.

I mean,

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certainly they call themselves a membership organization.

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think the point of the standing test that we'd like to have

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discovery to determine whether we have an argument here is

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whether, in fact, they are a traditional membership

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organization, to use the language of Mr. Consovoy's letter from

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this morning.

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considered by many courts as important to determine whether an

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organization actually really is standing in the shoes of its

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members.

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that that's the case or not the case yet.

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limited information that SFFA has produced today.

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Certainly a DCF membership is what has been

I don't think we have sufficient information to know

THE COURT:
time.

We have very, very

Again, we can go through these one at a

I think that it's fair to require them, if they haven't

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already, to give you the number of members that they have.

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my reading of the case law at least -- and I'm happy to have

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you point me to something else if you want -- but that, if they

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even have at least one member that has -- would have standing

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in his own right, that that's sufficient.

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So I think -- you've given them 15 names, right?

But

I

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some or all of those people satisfy the Hunt criteria, I don't

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think you're entitled to get to the other 19,985 people or

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think you're entitled to take a look at those 15 people; but if

whatever it is they say they have.

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to the number because you're entitled to know if there are

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actual members and sort of to what extent.

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membership organization, it has members, I think it sort of

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ends the inquiry.

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MS. ELLSWORTH:

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THE COURT:

I do think you're entitled

But I -- if it's a

I guess I would respectfully disagree.

That's fine.

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MS. ELLSWORTH:

The three prongs of the standard, the

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first is, yes, you have to have members who would have standing

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in their own right.

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have been given names of individuals who do appear to have

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whatever criteria they would need.

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We're not challenging that right now.

We

It's the second Hunt factor, which is the germaneness

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factor, as to whether or not -- and germaneness is sort of an

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umbrella under which this question of whether it is, in fact, a

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bona fide membership organization falls.

So whether or not

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they actually have meetings with their members, whether member

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input is taken into account in determining the direction of the

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organization.

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that indicate where, in fact, an organization conceived of an

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idea and then went out and found members to pursue that idea,

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that's not a bona fide membership organization entitled to

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pursue suit.

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are focusing on, at least in this dispute, and trying to find

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out, you know, what information is there.

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We've cited cases in the D.C. Circuit and others

And that is the prong of the Hunt factors that we

I guess the other thing I would note is our requests

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are -- there are several requests -- one related to the actual

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list of members.

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address information.

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to other documents that are not really addressed as thoroughly

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as Mr. Consovoy's letter that we think don't implicate some of

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the First Amendment arguments that are being made, and we don't

And we asked for names, when they joined,
There are many other requests that relate

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agree that those arguments carry the day in the end after the

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entire analysis is undertaken.

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But, for example, communications with members, we know

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of communications that exist that have not been produced to us.

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We provide an example as an exhibit to our letter.

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Communications with members both as recruitment as well as

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communications once they are members.

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THE COURT:

But I just -- I don't understand how the

communications or the recruitment efforts are relevant to the

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issue of associational standing.

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MS. ELLSWORTH:

They're relevant to a -- particularly

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communications from members to SFFA are relevant to the

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question of whether this is, in fact, a member-driven

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organization.

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THE COURT:

I think that when you have actual members

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sue in their own right.

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germane to the organization's purpose.

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-- so the Hunt factors are members that would have standing to

organization's purpose is set forth in their 501(c)(3) filings

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and that if people join the -- it's like the ACLU, right?

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you were suing the ACLU -- I mean, they had set forth the

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principles that they are interested in advancing.

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you know, I don't think you would be entitled to get to who

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their individual membership was.

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the organizational charter, so to speak, and that -- I don't

The interest it seeks to protect are
I think that the

If

And then,

The purposes are set forth in

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think that the case law affords you the right to challenge what

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they've set forth as their purpose.

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MS. ELLSWORTH:

It's not the purpose that we would

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seek to challenge.

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member driven.

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at all in the direction of the organization.

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It's whether the purpose as a member is

It's whether the members, in fact, participate

THE COURT:

I don't think it has to be -- I think that

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that -- you're talking about indicia of membership, and I think
that goes to organizations that don't have actual members.

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MS. ELLSWORTH:

But, your Honor, I don't think it's

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members as has been recognized in cases in which associational

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standing is allowed.

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standing is that you're standing in the shoes of the members.

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You represent exactly their interests, not that an organization

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has some broader interests and then finds a member with a

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specific interest that it then uses to pursue that interest.

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We do think it's an important distinction and one that we're

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sufficient to say we have members if those are not traditional

entitled to test on standing.

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THE COURT:

I mean, the idea of associational

It's just not the way I read the cases.

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completely understand what you're saying, but it seems like

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those sort -- that sort of testing goes to an organization

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that's sort of more of an advocacy umbrella sort of

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organization.

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It doesn't actually have members at all.

Now, if you go through the 15 people that they've

I

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given you and it turns out that those people don't satisfy the

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Hunt criteria, then we're in a different posture.

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come up with another 15 or they decide they're not really a

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membership organization.

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Maybe they

Then we look at it a different way.

But I think that under the Hunt factors we're -- which

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is, by the way, why I would let you have the total number of

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members, right?

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allowed to look hard at some number of them.

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think that's fine.

So if you get the number of members, you're
They say 15.

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The interest it seeks is germane to the

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organization's purpose, which is set forth in their 501(c)(3)

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information.

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participation of the individual -- the individual members.

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And these claims don't seem to require the

I think in a case where you have members, unless real

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members, and I -- I think that does -- I don't think you get to

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test whether they're members or real members.

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whole -- that whole indicia of membership thing comes up in

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those organizations that don't actually have any members at

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all.

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I think that

I'm happy -- you can point me to a case, but, I mean,

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I've looked at them.

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don't see where the indicia of membership criteria are applied

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to an organization that has actual members.

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You know, I just -- I don't see it.

MS. ELLSWORTH:

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So, your Honor, I mean, we certainly

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cited cases in our original letter.

We received the filing

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from Mr. Consovoy at the same time you did, so I would like the

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opportunity to respond to that on this point specifically.

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do think the cases that we've cited provide that, but we're

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happy to provide --

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THE COURT:

I

I looked at them today, and I didn't see

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I guess what I would like to do, just to sort of keep things

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moving, is to rule on this but give you the opportunity to move

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for reconsideration, if that's what you want to do, when you

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it.

I mean, I -- so if you want to respond to it, that's fine.

take a look at his cases.

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MS. ELLSWORTH:

Your Honor, may I just ask?

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looking for much more than just a list of members.

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We're

understand you've ordered them --

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THE COURT:
a time.

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I'm thinking we'll go through them one at

Is that all right with you?

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MR. CONSOVOY:

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THE COURT:

Yes, your Honor.

All right.

I mean -- and I feel like

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referenced in your correspondence back and forth.

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there's -- requests for production of interrogatories that are

focus on those at all.

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be open in your letter.

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current and former members, names, cities, addresses, start and

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end dates of their membership, and institutions of higher

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education that they applied to or plan to apply to or where

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they attend.

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that.

I didn't

I only focused on the ones that seem to
So the first one was RFP 7, all

And I think that what we just discussed covers

So that -- to the extent that -- I guess it's your

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motion to compel -- it's denied as to RFP 7.
8, you've raised issues as to 8(b), (c), and (f), all

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documents relating to membership dues or other financial

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contributions.

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membership, which doesn't go to an actual membership

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organization.

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I think that's only relevant to indicia of

The same with participation in litigation and the same

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with -- I take it that the communications with SFFA and its

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officers goes to trying to determine what level of control the

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members exert over the organization.

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only relevant where you're looking at the indicia of

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membership.

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Again, I think that's

So I am going -- again, if you want to respond to this

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one specifically, you can.

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motion to compel with respect to 8(b), (c), and (f).

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MS. ELLSWORTH:

But it's my intention to deny your

I just wanted to clarify that 8(b),

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specifically identified by SFFA as their "standing members."

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(c), and (f) all relate to simply the members that have been

So we're seeking communication of those identified individuals

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with SFFA and their funding or lack thereof of the

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organization.

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THE COURT:

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MS. ELLSWORTH:

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THE COURT:

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You want those only to apply to the 15?
That's all it asked for.

Sorry.

I didn't realize that.

So they're

asking for -- in 8(b), they want to know that these 15 people

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are actually members.

Can you give them that documentation?

MR. CONSOVOY:

We have.

We've given them their names

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and basic information about them.

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they've already applied to Harvard.

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information that would go to their underlying claims.

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THE COURT:

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MR. CONSOVOY:

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Of course, for most of them,
They have all of the

How do they join this organization?
Through our website, which is a

standard procedure for -THE COURT:

Is it a questionnaire with names -- they

just -- a name or you get -- what do you collect?
MR. CONSOVOY:

Multiple options.

So there's a basic

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form and then a longer form for people who are interested in

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potentially being a -- what we're calling standing members,

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those who we're relying on.

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THE COURT:

Have you given them the forms that each of

those 15 people filled out?
MR. CONSOVOY:

I don't think we have, your Honor.

We

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do consider those to be privileged communications, no different
than the NAACP with their voter ID plaintiffs, telling them

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their story.

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communications.

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names, where they applied to and when they joined.

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can look at their own records and determine whether they've --

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the only thing relevant to standing, they have to be a member

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of our organization, which they are; they have applied to

Those are First Amendment privileged
So we have not.

But we've told them their
And so they

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Harvard; they've been rejected; or they plan to apply to

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Harvard.

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THE COURT:

Have you provided them with affidavit --

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what have you given them to show that these 15 people are

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members?

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MR. CONSOVOY:

We've given them their names, and we've

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point in the case, if they deem it necessary, obviously, there

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given an interrogatory answer from our president.

will be -- you know, we'll submit a declaration, but we're not

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At a later

there yet.
MS. ELLSWORTH:

This is the point in the case.

This

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is the point in the case.

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know, you know, when they joined, whatever information they

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provided, what communications they may have had with the -- if

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they're privileged -- if it's associational privilege, it's

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different.

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that's what privilege logs exist for.

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to this information.

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If we depose them, we'd like to

If there's a claim of attorney/client privilege,

THE COURT:

I think we're entitled

I don't see how there would be

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attorney/client privilege in an application to join -- in a

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form to join an organization.

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I think that they're entitled to more than you've

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given them on the 15.

All right?

So if you're going to resist

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turning over the form that they've filled out on the website,

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either an affidavit saying that they are members, and that

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should include when they joined.

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MR. CONSOVOY:

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THE COURT:

We understand, your Honor.

Okay.

Thank you.

All documents relating to the

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participation in litigation, I don't think you're entitled to

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that, or why would you think you were, I guess is a better

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question?

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MS. ELLSWORTH:

Well, again, your Honor, we'd like to

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understand what their role is in this organization.

I

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understand your ruling on names of other individuals; but if

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we're to test -- the actual names we have is about five or six

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at this point.

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as future applicants, but the people who have actually applied,

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it's five or six.

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standing in the manner your Honor has directed, I think we're

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entitled to know what role they play in the organization.

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Certainly, we might seek that through deposition

There are more people that have been identified

So if we're going to test those individuals'

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that are responsive -- well, to the extent that there are

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testimony, but I also think that there are documents that exist

documents that exist that are responsive to the requests about

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these members, interactions with SFFA, both upon joining and as

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the litigation has gone forward, we think we're entitled to

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understand those and understand what the member's role is in

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the organization.

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THE COURT:

Okay.

I think all that you're entitled to

is to know whether or not they are members under the Hunt

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factors.

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Did you want to say something or --

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MR. CONSOVOY:

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THE COURT:

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MS. ELLSWORTH:

That's our position.

I just brilliantly summed it up for you?
Your Honor, whether they pay dues.

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don't know whether these individual pay dues.

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requirement is a late add to this organization.

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they have paid dues, something I think we're entitled to.

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10:50

We

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THE COURT:

The dues
So whether

Why don't you include in the -- in (b),

the date they joined and whether or not they paid dues, okay?

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MR. CONSOVOY:

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THE COURT:

Yes, your Honor.

So (b) is -- we've discussed.

(c) is

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denied.

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communications.

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whether or not they're members, and you can test whether or not

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they're members, but the communications aren't relevant to

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that.

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And (f), I just don't think you're entitled to
I think all -- I think all that you get is

10, documents sufficient to show SFFA's finances, I

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don't think you're entitled to that.

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it.

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MS. ELLSWORTH:

I'm happy to hear you on

What we're interested in, your Honor,

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to the extent that we can narrow it, is understanding the

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proportion of SFFA's finances that are provided by its members

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versus the proportion that comes from sources other than

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members.

I think, again, it all relates to whether this is, in

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fact, a member-driven organization.
I do understand your Honor's ruling.

I'm not trying

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to challenge that right now.

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understand a little bit more about this organization.

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But I think we're entitled to

Just to give you a sense of what we have, your Honor,

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we have screenshots from their websites that we already had.

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We have amicus briefs and other things that we already had.

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have their IRS application, bylaws, Articles of Incorporation,

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and a report that was publicly released on their website.

I

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mean, we have very, very little information about this

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organization.

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which we do intend to robustly do, we're entitled to more and

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we need more.

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I think, in order to actually test the standing,

THE COURT:

I understand why you want more.

sure that you're entitled to it or that you need it.

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MR. CONSOVOY:

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THE COURT:

I'm not
Okay.

That sums it up.

So in terms of the finances, what I would

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be inclined to ask you to give them -- although, again, I'm

19
10:52

We

happy to hear you on it -- is a -- however many members there

20

are, what percentage of them pay dues versus which percentage

21

are not paying.

22
23
24
25

MR. CONSOVOY:

On an aggregate basis, as long as it

isn't identifying an individual, we can do that.
THE COURT:

Okay.

for, but -- all right.

I know it's not what you're asking

19

1

11 is all documents relating to identification,

2

recruitment, selection, and members and potential members.

3

Again, I just don't see that as being relevant to the standing

4

-- to the Hunt factors when you have a membership organization.

5
6

MS. ELLSWORTH:

I would be repeating myself to make

the argument so --

7

THE COURT:

All right.

So denied as to 11.

8

12, communications or correspondence between SFFA, its

9

directors, officers, members, or other representatives, donors,

10

financial supporters, relating to the litigation.

11

10:54

don't see a membership organization.

12

MS. ELLSWORTH:

Again, I

I mean, your Honor, I think it relates

13

to whether the members fund the organization or not or whether

14

it's the donors that are funding the organization.

15

don't have standing.

16

have standing.

17

who have been identified perhaps.

18
19
10:55

The donors

It's only -- and not all of the members

So the standing comes from now the 15 people

THE COURT:

I mean, the First Circuit case law says at

least one.

20

MS. ELLSWORTH:

It's not a numerosity requirement.

21

It's a participation.

We've received the number 20,000.

22

Another contemporaneous statement from Mr. Bloom says 400.

23

take the sworn interrogatories to be true.

24

penalty of perjury.

25

target.

I

They're sworn under

But there's -- it's a bit of a moving

20

1

THE COURT:

We have now -- what I have directed them

2

to do is to give you the number of members and then separate

3

out the numbers that are paying and not paying.

4

confused about this, if it's not clear -- I sort of assume that

5

membership is a clear thing.

6

communicated to her in some way or another how you define a

7

member?

8
9

And if she is

But if you -- have you

Is it someone that's signed up?
MR. CONSOVOY:

We can.

We can amend our interrogatory

to explain clearly why a proof of 415,000 is.

The president

10

went to California and met with students, and it grew in about

11

10:57

three days.

12
13

THE COURT:

Give her some explanation of what

constitutes a member.

14

MR. CONSOVOY:

15

MS. ELLSWORTH:

Absolutely, your Honor.
Your Honor, the other point we would

16
17

is important to the standing and creates the membership as of

18

the time the suit was instituted, not today.

19
10:58

make -- and we pointed this out in our letter -- is that what

reason that we ask for dates of membership of the names.

20

understand you're taking a more aggregate approach.

21

to explore whether there's a way to take a more aggregate

22

approach on when people have joined so we understand.

23

THE COURT:

How about that?

So that's the
I

I'd like

Can you take the date you

24

filed the lawsuit and give them the number of members before

25

that and the number of members after that?

21

1

MR. CONSOVOY:

I believe so, so long as -- again, I

2

want to sort of generally preserve.

3

that we think starts identifying individuals, we may need to

4

come back and revisit it because, obviously, we grew and we

5

grew and we grew.

6

don't see a problem.

7
8

Okay.

So you, of course, all know you're

free to come back.
MS. ELLSWORTH:

10
11

So if I can make that one caveat now, I

THE COURT:

9
10:59

If we come across a way

THE COURT:

At lunch or between --

No one has been shy about that.

But after

court the hours are virtually in the middle of -- all right.

12

So denied on 12.

13

13, all communications or correspondence among or

14

between SFFA members -- SFFA and its members or potential

15

members, board of directors, or any other person relating to

16

the complaint of the litigation.

17

-- I understand your position on it, but I'm going to deny it.

18

15, all right.

I'm going to deny that unless

15 is all documents relating to

19
11:00

membership in SFFA, including, but not limited to, all

20

membership policies.

21

that's --

22
23
24
25

Have you given them that?

MR. CONSOVOY:

I guess

Yes, bylaws and Articles of

Incorporation.
THE COURT:

Okay.

All documents relating to rights

members may have to elect or remove SFFA's leadership?

22

1

MR. CONSOVOY:

2

THE COURT:

3

otherwise controlled conduct?

4

of bylaw information.

5
6

Participate in its decision-making or

MR. STRAWBRIDGE:

I mean, I take this to be sort

This is just the litigator in me

being --

7
8

Yes, given them.

THE COURT:

I was wondering how long that was going to

take.

9

MR. STRAWBRIDGE:

Five minutes longer than it should

10

have.

11

extent that this is a request for the policies and the formal

12

documentation that sets out members' rights, we have provided

13

those documents.

14

responses that address this.

15

every example of communications with members that might on some

16

11:01

The request is all documents relating to the -- to the

macro level relate to --

17
18

THE COURT:

We obviously have not provided

That's what I was limiting to that, the

actual membership, bylaws, rules, that sort of thing.

19
11:01

We've also provided some interrogatory

MS. ELLSWORTH:

Your Honor, if the 14 documents that

20

have been produced are the documents on which they are going to

21

rely for their standing and that's -- we're standing on that,

22

that will be what it will be.

23

We know there are communications that go out to

24

members about the litigation.

25

report.

One at least is the annual

There may be others that are not -- I'm not talking

23

1

about an individual email to an individual member.

2

about a blast to the membership saying, Here's what we're

3

doing, X, Y, Z.

4

we're entitled to know if members actually come to meetings,

5

whether meetings are held at which members can attend.

6

I understand your ruling on names, if we could get that

7

information without names.

8

we've asked for, certainly than what we've received, and I --

9

We think we're entitled to that.

THE COURT:

I'm talking

We think

Again,

I think there's more here that

I mean, if they have bylaws that say,

10

We're going to meet once a year or we'll make -- I think you're

11

entitled to that, but I don't think you're entitled to actual

12

information about when meetings are held and how many people

13

show up and what got said at those meetings.

14

11:53

reports?

15

MR. CONSOVOY:

16

THE COURT:

17

MS. ELLSWORTH:

18

MR. CONSOVOY:

Are there annual

We've given them the annual report.

Thanks.
There's only one.
We gave them one.

But in terms of

19
11:53

email communications, that's to the heart of what's relevant

20

here, what the communication -- what the members talk about.

21

Whether it's in mass form or individual form, it's what we talk

22

about with each other.

23

THE COURT:

But if there are -- I agree with you

24

there; but if there are rules or policies that say we're going

25

to meet this often for organizational structure-type things

24

1

like that, I'd like those produced to them if they haven't

2

already been.

3

MR. CONSOVOY:

4

THE COURT:

Yes, your Honor.

And annual reports, sort of -- that you

5

don't -- not email blasts, not the communications but to the

6

extent there's annual reports.

7

MR. CONSOVOY:

8

THE COURT:

9
11:55

10

We understand and we'll comply.

All right.

And then the last one is the

interrogatory that I think we've already covered, right, by and
large?

11

MR. CONSOVOY:

12

we've already covered.

13

THE COURT:

14

MR. CONSOVOY:

15

MS. ELLSWORTH:

16

I believe it's duplicative of things

I think it is, too.
Yeah.
The interrogatory asks for a list of

members.

17

THE COURT:

Right.

So I -- if you -- I sympathize

18
19
11:56

with the fact that you just got it this morning.

It was dense

and single-spaced.

20

motion for reconsideration or a letter for reconsideration.

21

Don't bother with a full motion practice.

22

it.

23

we'll just keep this moving.

If you want to file it -- fashion it as a

I'm happy to read

Don't bother responding unless I ask you to, okay?

24

MS. ELLSWORTH:

25

MR. CONSOVOY:

So

Understood, your Honor.
One last thing, to sort of apologize

25

1

for the lateness of our filing.

2

week ago that it would be coming in today.

3

sure --

4
5

THE COURT:

8
9

So I want to make

This is literally my first day back from

this conference, and I scheduled --

6
7

We did inform Harvard over a

MR. CONSOVOY:

We appreciate your indulgence, your

Honor.
THE COURT:

No, no.

You know, look, I will say about

this case, whether -- whoever wins or loses on the individual

10

points, your letters and the briefs are all a pleasure to read.

11

They're just all extremely well-done and clear and easy to

12

understand and hit the relevant points.

13

say, if I had to try and squeeze something in today, I was more

14

than happy for it to be this because it's all well-done, but --

15

I'm not ascribing fault.

16

11:57

through it before 2:30.

So, you know, as I

I'm just proud of myself for getting

17
18

MR. CONSOVOY:

19
11:57

Anything else today?

MS. ELLSWORTH:

20

THE COURT:

21

time limit on that.

22

Have a good weekend.

23

(Whereupon, at 3:12 p.m. the hearing concluded.)

24
25

Not with us, your Honor.
Not for us, your Honor.

Okay.

Okay.

If you want to -- there's no

You can -- all right.

Thanks, everyone.

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1

C E R T I F I C A T E

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3
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I certify that the foregoing is a correct transcript

5

of the record of proceedings in the above-entitled matter to

6

the best of my skill and ability.

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11
12

/s/Cheryl Dahlstrom

13

Cheryl Dahlstrom, RMR, CRR

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Official Court Reporter

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Dated:

May 9, 2016