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 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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1 1 UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS 2 3 4 5 6 7 8 9 STUDENTS FOR FAIR ADMISSIONS, INC., Plaintiff, vs. PRESIDENT AND FELLOWS OF HARVARD COLLEGE, et al, Defendants. ) ) ) ) ) ) CA No. 14-14176-ADB ) ) ) ) ) 10 11 BEFORE: THE HONORABLE JUDGE ALLISON D. BURROUGHS 12 13 STATUS CONFERENCE 14 15 16 17 18 19 John Joseph Moakley United States Courthouse Courtroom No. 17 One Courthouse Way Boston, MA 02210 Friday, April 29, 2016 2:45 p.m. 20 21 22 23 24 25 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 2 1 APPEARANCES: 2 ON BEHALF OF THE PLAINTIFF: 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 3 1 P R O C E E D I N G S 2 THE CLERK: This is Civil Action 14CV14176, Students 3 For Fair Admissions v. President and Fellows of Harvard 4 College. 5 Will counsel identify themselves for the record. MR. CONSOVOY: Good afternoon, your Honor. William 6 Consovoy, on behalf of Students For Fair Admissions, along with 7 Paul Strawbridge, Paul Sanford, and Michael Park. 8 9 MS. ELLSWORTH: Felicia Ellsworth on behalf of President and Fellows of Harvard 10 College. 11 10:16 Good afternoon, your Honor. Counsel. 12 And with me is Ara Gershengorn, Office of General THE COURT: Okay. I have the letters in front of me 13 over the discovery dispute, and we'll get to that. 14 anything else we need to cover today just so that I know what 15 we're doing? 16 MR. CONSOVOY: Is there Your Honor, we'd like to cover 17 18 today would be a good day to make a plan for that given we may 19 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 20 and see you after Fisher, so we'd like to talk about that at 21 the appropriate opportunity. 22 THE COURT: Okay. 23 not apt to be for/for. 24 It is one of those decisions that's for/for. 25 I guess that cannot possibly be So at this judicial conference that I was just at, 4 1 2 Supreme Court update. 3 about a lot of cases and how they thought they would turn out 4 and what it would mean for us all going forward. 5 got to Fisher, which they did cover, they basically said it's 6 going -- there's seven justices participating. 7 three on this side and three on this side. 8 jump ball what Kennedy is going to do. 9 10:19 they had -- Erwin Chemerinsky and Paul Clement gave, like, a and see. 10 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. 11 And when they Ungratifying. So we can talk about post-Fisher. I mean -- again, 12 I'm happy to hear you on that. 13 sense to me, is that Fisher comes out. 14 get together a week later. 15 to actually make a plan post-Fisher when we -- sure. 16 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 17 18 letters to the Court a week after -- simultaneous as to what 19 10:20 procedural one, which would be to -- the parties would submit they think Fisher means to the case and what the next steps 20 should be so that we can come in when you're ready to see us, 21 ready to make some decisions and, from our view, hopefully, 22 move forward. 23 view. And we'll see whether Harvard has a different 24 THE COURT: That seems reasonable to me. 25 MS. ELLSWORTH: I certainly agree that we can't 5 1 comprehend anything before Fisher comes down. 2 problem with the idea of submitting letters and then setting a 3 time to come in and talk about what makes sense assuming that 4 Fisher doesn't do something that even changes that, but I find 5 that hard to imagine. 6 THE COURT: I'm happy to do that. We don't have a I start 13 weeks of 7 trial on Monday, two cases, all with out-of-town lawyers. 8 agreed to try the case 10 to 4 so that people didn't have to be 9 away from their families for any longer than necessary. 10 know, we can definitely have a conference. 11 10:21 So I You scheduling is going to be a little Higley Pigley. 12 13 So why don't we do that. It's just the How much time do you want after Fisher to submit your letters? 14 MR. CONSOVOY: Seven days will be sufficient for us. 15 MS. ELLSWORTH: I mean, I might ask for a little bit 16 longer. I don't know. 17 maybe ten days just to give everyone time to actually digest 18 it. I don't anticipate it will be a quick read. 19 10:22 It depends on when it comes out and -- MR. CONSOVOY: 20 THE COURT: No objection here. Why don't we just take a couple of weeks. 21 I mean, my schedule is crazy, and it's -- we may as well take 22 some time to do it. 23 and maybe file one letter instead of two, that would be nice. 24 But if you need to file the two letters, I can -- it's 25 obviously fine. If it was at all possible for you to talk 6 1 So why don't you take two weeks, and then let me know 2 in those letters how much time you would like before we meet 3 for a conference. 4 that's fine. 5 that's fine, too. 6 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 7 MR. CONSOVOY: 8 THE COURT: 9 10:25 10 11 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 12 single-spaced, 14-page document this morning, I've read all the 13 paperwork that's come in. 14 have to say, Miss Ellsworth, that I think that SFFA has the 15 better part of this argument. 16 membership. I have even read the cases. And I They have an organization with It's not a nonmembership organization. 17 18 time and discuss them, but I think that your request is overly 19 10:26 I'm happy to go through the requests sort of one at a broad given the legalities underlying associational standing. 20 MS. ELLSWORTH: Your Honor, I guess I'd like to 21 address the idea of a membership organization first. I mean, 22 certainly they call themselves a membership organization. 23 think the point of the standing test that we'd like to have 24 discovery to determine whether we have an argument here is 25 whether, in fact, they are a traditional membership I 7 1 organization, to use the language of Mr. Consovoy's letter from 2 this morning. 3 considered by many courts as important to determine whether an 4 organization actually really is standing in the shoes of its 5 members. 6 that that's the case or not the case yet. 7 limited information that SFFA has produced today. 8 9 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 10 already, to give you the number of members that they have. 11 my reading of the case law at least -- and I'm happy to have 12 you point me to something else if you want -- but that, if they 13 even have at least one member that has -- would have standing 14 10:28 in his own right, that that's sufficient. 15 So I think -- you've given them 15 names, right? But I 16 17 some or all of those people satisfy the Hunt criteria, I don't 18 think you're entitled to get to the other 19,985 people or 19 10:28 think you're entitled to take a look at those 15 people; but if whatever it is they say they have. 20 to the number because you're entitled to know if there are 21 actual members and sort of to what extent. 22 membership organization, it has members, I think it sort of 23 ends the inquiry. 24 MS. ELLSWORTH: 25 THE COURT: I do think you're entitled But I -- if it's a I guess I would respectfully disagree. That's fine. 8 1 MS. ELLSWORTH: The three prongs of the standard, the 2 first is, yes, you have to have members who would have standing 3 in their own right. 4 have been given names of individuals who do appear to have 5 whatever criteria they would need. 6 We're not challenging that right now. We It's the second Hunt factor, which is the germaneness 7 factor, as to whether or not -- and germaneness is sort of an 8 umbrella under which this question of whether it is, in fact, a 9 bona fide membership organization falls. So whether or not 10 they actually have meetings with their members, whether member 11 input is taken into account in determining the direction of the 12 organization. 13 that indicate where, in fact, an organization conceived of an 14 idea and then went out and found members to pursue that idea, 15 that's not a bona fide membership organization entitled to 16 pursue suit. 17 are focusing on, at least in this dispute, and trying to find 18 10:31 out, you know, what information is there. 19 10:32 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 20 are -- there are several requests -- one related to the actual 21 list of members. 22 address information. 23 to other documents that are not really addressed as thoroughly 24 as Mr. Consovoy's letter that we think don't implicate some of 25 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 9 1 agree that those arguments carry the day in the end after the 2 entire analysis is undertaken. 3 But, for example, communications with members, we know 4 of communications that exist that have not been produced to us. 5 We provide an example as an exhibit to our letter. 6 Communications with members both as recruitment as well as 7 communications once they are members. 8 9 THE COURT: But I just -- I don't understand how the communications or the recruitment efforts are relevant to the 10 issue of associational standing. 11 10:33 MS. ELLSWORTH: They're relevant to a -- particularly 12 communications from members to SFFA are relevant to the 13 question of whether this is, in fact, a member-driven 14 organization. 15 THE COURT: I think that when you have actual members 16 17 sue in their own right. 18 germane to the organization's purpose. 19 10:34 -- so the Hunt factors are members that would have standing to organization's purpose is set forth in their 501(c)(3) filings 20 and that if people join the -- it's like the ACLU, right? 21 you were suing the ACLU -- I mean, they had set forth the 22 principles that they are interested in advancing. 23 you know, I don't think you would be entitled to get to who 24 their individual membership was. 25 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 10 1 think that the case law affords you the right to challenge what 2 they've set forth as their purpose. 3 MS. ELLSWORTH: It's not the purpose that we would 4 seek to challenge. 5 member driven. 6 at all in the direction of the organization. 7 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 8 9 10:35 that -- you're talking about indicia of membership, and I think that goes to organizations that don't have actual members. 10 MS. ELLSWORTH: But, your Honor, I don't think it's 11 12 members as has been recognized in cases in which associational 13 standing is allowed. 14 standing is that you're standing in the shoes of the members. 15 You represent exactly their interests, not that an organization 16 has some broader interests and then finds a member with a 17 specific interest that it then uses to pursue that interest. 18 We do think it's an important distinction and one that we're 19 10:36 sufficient to say we have members if those are not traditional entitled to test on standing. 20 THE COURT: I mean, the idea of associational It's just not the way I read the cases. 21 completely understand what you're saying, but it seems like 22 those sort -- that sort of testing goes to an organization 23 that's sort of more of an advocacy umbrella sort of 24 organization. 25 It doesn't actually have members at all. Now, if you go through the 15 people that they've I 11 1 given you and it turns out that those people don't satisfy the 2 Hunt criteria, then we're in a different posture. 3 come up with another 15 or they decide they're not really a 4 membership organization. 5 Maybe they Then we look at it a different way. But I think that under the Hunt factors we're -- which 6 is, by the way, why I would let you have the total number of 7 members, right? 8 allowed to look hard at some number of them. 9 think that's fine. So if you get the number of members, you're They say 15. I The interest it seeks is germane to the 10 organization's purpose, which is set forth in their 501(c)(3) 11 information. 12 10:37 participation of the individual -- the individual members. 13 And these claims don't seem to require the I think in a case where you have members, unless real 14 members, and I -- I think that does -- I don't think you get to 15 test whether they're members or real members. 16 whole -- that whole indicia of membership thing comes up in 17 those organizations that don't actually have any members at 18 all. 19 10:37 I think that I'm happy -- you can point me to a case, but, I mean, 20 I've looked at them. 21 don't see where the indicia of membership criteria are applied 22 to an organization that has actual members. 23 You know, I just -- I don't see it. MS. ELLSWORTH: I So, your Honor, I mean, we certainly 24 cited cases in our original letter. We received the filing 25 from Mr. Consovoy at the same time you did, so I would like the 12 1 opportunity to respond to that on this point specifically. 2 do think the cases that we've cited provide that, but we're 3 happy to provide -- 4 THE COURT: I I looked at them today, and I didn't see 5 6 I guess what I would like to do, just to sort of keep things 7 moving, is to rule on this but give you the opportunity to move 8 for reconsideration, if that's what you want to do, when you 9 10:38 it. I mean, I -- so if you want to respond to it, that's fine. take a look at his cases. 10 MS. ELLSWORTH: Your Honor, may I just ask? 11 looking for much more than just a list of members. 12 We're understand you've ordered them -- 13 14 THE COURT: a time. I I'm thinking we'll go through them one at Is that all right with you? 15 MR. CONSOVOY: 16 THE COURT: Yes, your Honor. All right. I mean -- and I feel like 17 18 referenced in your correspondence back and forth. 19 10:39 there's -- requests for production of interrogatories that are focus on those at all. 20 be open in your letter. 21 current and former members, names, cities, addresses, start and 22 end dates of their membership, and institutions of higher 23 education that they applied to or plan to apply to or where 24 they attend. 25 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 13 1 2 motion to compel -- it's denied as to RFP 7. 8, you've raised issues as to 8(b), (c), and (f), all 3 documents relating to membership dues or other financial 4 contributions. 5 membership, which doesn't go to an actual membership 6 organization. 7 I think that's only relevant to indicia of The same with participation in litigation and the same 8 with -- I take it that the communications with SFFA and its 9 officers goes to trying to determine what level of control the 10 members exert over the organization. 11 only relevant where you're looking at the indicia of 12 10:41 membership. 13 Again, I think that's So I am going -- again, if you want to respond to this 14 one specifically, you can. 15 motion to compel with respect to 8(b), (c), and (f). 16 MS. ELLSWORTH: But it's my intention to deny your I just wanted to clarify that 8(b), 17 18 specifically identified by SFFA as their "standing members." 19 10:42 (c), and (f) all relate to simply the members that have been So we're seeking communication of those identified individuals 20 with SFFA and their funding or lack thereof of the 21 organization. 22 THE COURT: 23 MS. ELLSWORTH: 24 THE COURT: 25 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 14 1 2 are actually members. Can you give them that documentation? MR. CONSOVOY: We have. We've given them their names 3 and basic information about them. 4 they've already applied to Harvard. 5 information that would go to their underlying claims. 6 THE COURT: 7 MR. CONSOVOY: 8 9 10:43 10 11 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 12 form and then a longer form for people who are interested in 13 potentially being a -- what we're calling standing members, 14 those who we're relying on. 15 16 17 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 18 19 10:44 do consider those to be privileged communications, no different than the NAACP with their voter ID plaintiffs, telling them 20 their story. 21 communications. 22 names, where they applied to and when they joined. 23 can look at their own records and determine whether they've -- 24 the only thing relevant to standing, they have to be a member 25 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 15 1 Harvard; they've been rejected; or they plan to apply to 2 Harvard. 3 THE COURT: Have you provided them with affidavit -- 4 what have you given them to show that these 15 people are 5 members? 6 MR. CONSOVOY: We've given them their names, and we've 7 8 point in the case, if they deem it necessary, obviously, there 9 10:45 given an interrogatory answer from our president. will be -- you know, we'll submit a declaration, but we're not 10 11 At a later there yet. MS. ELLSWORTH: This is the point in the case. This 12 is the point in the case. 13 know, you know, when they joined, whatever information they 14 provided, what communications they may have had with the -- if 15 they're privileged -- if it's associational privilege, it's 16 different. 17 that's what privilege logs exist for. 18 to this information. 19 10:47 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 20 attorney/client privilege in an application to join -- in a 21 form to join an organization. 22 I think that they're entitled to more than you've 23 given them on the 15. All right? So if you're going to resist 24 turning over the form that they've filled out on the website, 25 either an affidavit saying that they are members, and that 16 1 should include when they joined. 2 MR. CONSOVOY: 3 THE COURT: We understand, your Honor. Okay. Thank you. All documents relating to the 4 participation in litigation, I don't think you're entitled to 5 that, or why would you think you were, I guess is a better 6 question? 7 MS. ELLSWORTH: Well, again, your Honor, we'd like to 8 understand what their role is in this organization. I 9 understand your ruling on names of other individuals; but if 10 we're to test -- the actual names we have is about five or six 11 at this point. 12 as future applicants, but the people who have actually applied, 13 it's five or six. 14 standing in the manner your Honor has directed, I think we're 15 entitled to know what role they play in the organization. 16 10:48 Certainly, we might seek that through deposition There are more people that have been identified So if we're going to test those individuals' 17 18 that are responsive -- well, to the extent that there are 19 10:48 testimony, but I also think that there are documents that exist documents that exist that are responsive to the requests about 20 these members, interactions with SFFA, both upon joining and as 21 the litigation has gone forward, we think we're entitled to 22 understand those and understand what the member's role is in 23 the organization. 24 25 THE COURT: Okay. I think all that you're entitled to is to know whether or not they are members under the Hunt 17 1 factors. 2 Did you want to say something or -- 3 MR. CONSOVOY: 4 THE COURT: 5 MS. ELLSWORTH: That's our position. I just brilliantly summed it up for you? Your Honor, whether they pay dues. 6 don't know whether these individual pay dues. 7 requirement is a late add to this organization. 8 they have paid dues, something I think we're entitled to. 9 10:50 We 10 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? 11 MR. CONSOVOY: 12 THE COURT: Yes, your Honor. So (b) is -- we've discussed. (c) is 13 denied. 14 communications. 15 whether or not they're members, and you can test whether or not 16 they're members, but the communications aren't relevant to 17 that. 18 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 19 10:50 don't think you're entitled to that. 20 it. 21 MS. ELLSWORTH: I'm happy to hear you on What we're interested in, your Honor, 22 to the extent that we can narrow it, is understanding the 23 proportion of SFFA's finances that are provided by its members 24 versus the proportion that comes from sources other than 25 members. I think, again, it all relates to whether this is, in 18 1 2 fact, a member-driven organization. I do understand your Honor's ruling. I'm not trying 3 to challenge that right now. 4 understand a little bit more about this organization. 5 But I think we're entitled to Just to give you a sense of what we have, your Honor, 6 we have screenshots from their websites that we already had. 7 We have amicus briefs and other things that we already had. 8 have their IRS application, bylaws, Articles of Incorporation, 9 and a report that was publicly released on their website. I 10 mean, we have very, very little information about this 11 organization. 12 which we do intend to robustly do, we're entitled to more and 13 10:51 we need more. 14 15 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. 16 MR. CONSOVOY: 17 THE COURT: I'm not Okay. That sums it up. So in terms of the finances, what I would 18 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. 26 1 C E R T I F I C A T E 2 3 4 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. 7 8 9 10 11 12 /s/Cheryl Dahlstrom 13 Cheryl Dahlstrom, RMR, CRR 14 Official Court Reporter 15 16 17 18 19 20 21 22 23 24 25 Dated: May 9, 2016

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