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

Filing 193

Transcript of Status Conference held on September 6, 2016, before Judge Allison D. Burroughs. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Carol Scott at [e-mail] Redaction Request due 10/24/2016. Redacted Transcript Deadline set for 11/3/2016. Release of Transcript Restriction set for 1/2/2017. (Scalfani, Deborah)

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UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

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* * * * * * * * * * * * * * *
STUDENTS FOR FAIR
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ADMISSIONS, INC.,
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Plaintiff,
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vs.
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PRESIDENT AND FELLOWS OF
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HARVARD COLLEGE, et al,
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Defendants.
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CIVIL ACTION
No. 14-14176-ADB

BEFORE THE HONORABLE ALLISON D. BURROUGHS
UNITED STATES DISTRICT JUDGE
STATUS CONFERENCE
A P P E A R A N C E S

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CONSOVOY McCARTHY PARK PLLC
Ten Post Office Square, 8th Floor
Boston, Massachusetts 02109
for the plaintiff
By: Patrick Strawbridge, Esq.

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WILMER CUTLER PICKERING HALE and DORR LLP (Bos)
60 State Street
Boston, Massachusetts 02109
for the defendants
By: Felicia H. Ellsworth, Esq.

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Courtroom No. 17
Robing Room
John J. Moakley Courthouse
1 Courthouse Way
Boston, Massachusetts 02210
September 6, 2016
9:30 a.m.

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APPEARANCES CONTINUED

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WILMER CUTLER PICKERING HALE and DORR LLP
1875 Pennsylvania Avenue, NW
Washington, D.C. 20006
for the defendant
By: Daniel Winik, Esq.

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LAWYERS' COMMITTEE FOR CIVIL RIGHTS AND
ECONOMIC JUSTICE
61 Batterymarch Street, Fifth Floor
Boston, Massachusetts 02110
for the intervenor defendant
By: Oren M. Sellstrom, Esq.

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CAROL LYNN SCOTT, CSR, RMR
Official Court Reporter
One Courthouse Way, Suite 7204
Boston, Massachusetts 02210
[phone]

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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 14-14176,

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Students for Fair Admissions versus President and Fellows of

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Harvard College.

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record.

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MR. STRAWBRIDGE:

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MR. SELLSTROM:

Oren Sellstrom from the

Lawyers' Committee for Civil Rights on behalf of the Student
MB.

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MS. MADGE:

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MS. ELLSWORTH:

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Patrick Strawbridge for

SFFA.

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Will counsel identify themselves for the

Sara Madge for Harvard.
Felicia Ellsworth on behalf of

Harvard.

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MR. WINIK:

Daniel Winik on behalf of Harvard.

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THE COURT:

Okay.

The reason I jammed this in

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this week is that this is my law clerk Kelly who has been on

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this case from the beginning, this is her last week so I

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wanted to see what we could wrap up while she was still here

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and we had some institutional knowledge on the case.

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is starting today.

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case.

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you went for undergrad and law school; right?

I need to assign a new law clerk to this

Both of my incoming law clerks went to Harvard.

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THE LAW CLERK:

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THE COURT:

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Monica

And

Yes.

Did Sarah go just law school or

did she go undergrad and law school too?

She just went to

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law school; right?

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THE LAW CLERK:

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THE COURT:

I think she went to both.

All right.

So one of them is

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going to be assigned to the case.

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morning that she did some work in the Admissions Office as a

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freshman essentially opening mail and various ministerial

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tasks.

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way I assign the odd and even cases but because she spent

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time in the Admissions Office, if you prefer the other law

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Monica tells me this

She would normally be assigned to this just by the

clerk, I'm fine with that.

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MS. ELLSWORTH:

I don't have a preference.

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don't think that will create an issue in terms of

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impartiality.

I

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I'm fine either way.
MR. STRAWBRIDGE:

If it's low-level work, I

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doubt it.

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some of the people who will be involved in the case and some

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of the things -- I guess I'm not going to overlay Your

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Honor's view as to --

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On the other hand, she's probably going to know

THE COURT:

I mean, honestly my assumption was

that you would prefer the other law clerk so you -MR. STRAWBRIDGE:

Maybe that will take all the

issues out of it so -THE COURT:

I mean, I just, I have not had

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this discussion with her so for all I know she also worked

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in the Admissions Office.

Monica told me this morning so.

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MR. STRAWBRIDGE:

I suppose that, I mean, if

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they both worked in the Admissions Office, then maybe we

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have to revisit the question; but if there, given, it just

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seems like be it might be easier --

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THE COURT:

No, I don't dispute that.

So

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you're certainly more than welcome to sit in today but I

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think all things being whole, we'll swap it, okay.

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seems more fair.

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All right.

It just

So that's the first thing.

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The second thing is I know you still have a motion

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pending on organizational standing and I just haven't had a

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chance to look at it so I will get back to that hopefully in

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the next week or two.

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closely the first time so I don't anticipate making any

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changes to it but I will go back to it.

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a chance to do it.

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I really, we looked at it pretty

I just haven't had

On the, I am just trying to -MR. STRAWBRIDGE:

I just wanted to remind Your

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Honor, you probably recall this, but you asked us not to

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respond to their motion for reconsideration.

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THE COURT:

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MR. STRAWBRIDGE:

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Yes.
And I'm happy not to give

you any response unless something piqued your interest.
THE COURT:

Yeah, I mean, I just, I haven't

looked at their motion thoroughly.

I read in when it came

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in but not much beyond that.

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at it pretty closely the first time around so we'll -- but I

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will look at it again.

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MS. ELLSWORTH:

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THE COURT:

I just, I just know we looked

That's fine.

So what I've done is I tried to

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pick through all these letters that I have and see if I can

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tee up what all the issues are.

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can let me know before we go but -- so so far Harvard has

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agreed to and I assume is producing or has produced two

If I missed any, you all

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years of admissions data.

You've asked for an additional

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six years for eight total; correct?

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MR. STRAWBRIDGE:

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THE COURT:

Correct.

My reading of Fisher says that

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three years is not enough and that raises the issue what is

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enough.

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after this thinks that you should get all eight.

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thinking more like six.

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understand is how much more burdensome it is to produce

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years seven and eight.

Kelly who you will probably be glad to see depart
I was

So, but what I would like to

Is it just the same button or --

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MS. ELLSWORTH:

It's not.

So it depends on

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which direction we're going.

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only, the only existing year now until a new cycle starts,

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it's a totally new platform called Slate which is different

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from what we've been producing from for the two years that

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were produced.

So the year 2020 which is

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So going backwards it is, it's not just the push of

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a button but it is a similar format.

Some of the fields

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won't exist in earlier years, right.

Some things were

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added.

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backwards than forward from the administrative --

Some field names might change but it is easier to go

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THE COURT:

So how about this as a compromise.

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I give you the eight years but only make them go

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backwards --

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MR. STRAWBRIDGE:

That's fine with us.

I

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suppose, I think Harvard had more of an interest in having a

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more recent year but I think we view pre-employment (ph.)

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years as more probative anyway.

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MS. ELLSWORTH:

We're certainly happy to go

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backwards.

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maybe doing individualized data fields for whatever number

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of years you might honor and then some -- that you order,

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excuse me, and some aggregate data back, further back, back

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eight years.

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each --

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We still think eight is too many and we suggest

I'm not sure why we need a line item for

THE COURT:

I'm definitely going back to six

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because Fisher says three isn't enough and, so it's not

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going to be, it's going to be between six and eight but what

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about that six years going backwards with the aggregate data

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for the seventh and eighth years?

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MR. STRAWBRIDGE:

Obviously we prefer eight

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but six years going backwards is certainly a good start.

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guess --

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THE COURT:

All right.

Let's do this.

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Six

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years going backwards, aggregate data for seven and eight.

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If there is anything in the aggregate data that looks

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anomalous to you, you can raise it and we'll see about

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digging deeper into that, okay.

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MR. STRAWBRIDGE:

years that they've already produced?
THE COURT:

They produced the two most recent

years, right?

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MR. STRAWBRIDGE:

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THE COURT:

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Right.

So six years prior, so four years

complete data prior and then two years of aggregate data.

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MR. STRAWBRIDGE:

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MS. ELLSWORTH:

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So just to make sure

I understand, we're talking about the six years prior to the

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Okay.

Okay.

So we're producing four more

years going backwards?

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THE COURT:

Yes.

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MS. ELLSWORTH:

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THE COURT:

And then for aggregate data --

So you guys can sort out aggregate

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data.

And if it ends up being easier for you to produce all

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six years in the same way, that's fine too.

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concerns about, you know, there is a view, even a view in my

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chambers that, you know, two complete four-year cycles is

But I do have

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what makes the most sense.

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as four-year snapshots as more like individual year

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snapshots.

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I'm sort of looking at it less

MS. ELLSWORTH:

That's certainly how the

Admissions Office looks at it.

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THE COURT:

So six years seems, six years

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seems fine to me and I feel like the older, the further we

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go back kind of the less probative it is; but that seems

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like a reasonable compromise to me, six years going

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backwards altogether, so it's four more years plus two years

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aggregate data unless you decide that it's easier to just

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produce all the data because coming up with some model for

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the aggregate data might turn out to be more of a pain in

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the butt than it's worth.

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MR. STRAWBRIDGE:

Yeah, I think we will have

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to work through what's included in that aggregate data.

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may have different concepts of what's sufficiently detailed

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enough although still aggregated versus what's not.

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MS. ELLSWORTH:

We

We can try and work that

out --

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THE COURT:

Try and work it out.

I'll tell

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you this:

If you can't work it out, I'm going to be

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inclined to just say produce the full eight years because

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that, it's just not worth spending a lot of time trying to

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compose a whole different data set.

If it's easy to do and

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it gives you what you're looking for, we'll do it.

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go with the whole eight.

Okay?

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MS. ELLSWORTH:

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THE COURT:

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If not,

Okay.

All right.

So we'll get back to

the database fields after Mr. Sellstrom leaves.

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All right.

So this data about academic

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performance, so I did go back and look at my transcript and

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I had initially sort of suggested that I was inclined to let

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you dig into that.

And now upon further reflection and

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after reading Fisher I don't see how it's actually relevant.

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I don't see that -- unless, unless you can make an argument

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to me that Harvard's reasons for affirmative action are to

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have some sort of impact on academic performance and I don't

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think that that is the purpose of their affirmative action

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program so I don't think that academic performance is

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relevant to the analysis.

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MR. STRAWBRIDGE:

So, a couple of responses to

that.
I don't know and I think it's way too early in the

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case to know what all of Harvard's reasons are for its

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affirmative action programs and so I think it's premature to

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just determine that it has no relevance or that we

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understand what the purpose of its use raises.

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it's premature to kind of make an assessment on that.

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So I think

Secondly, I would just refer the Court to the

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language in Fisher II which specifically notes the

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University's ongoing need to, among other things, quote,

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Identify the affects, both positive and negative, of the

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affirmative action measures the University deems necessary

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And what's happening once these students are admitted, what

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their retention rate is like, are they staying in the majors

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they were admitted in?

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performance in the field is highly relevant as to whether or

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not the use of race is achieving the purported goals.

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What's happening with respect to the

THE COURT:

Well, they say, I mean, they say

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the purported goals are a diverse class regardless of how

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all of those people performed, unless they're dropping out I

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guess.

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MR. STRAWBRIDGE:

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THE COURT:

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I mean, that's relevant.

What do you think about that?

I

don't -- go ahead.
MS. ELLSWORTH:

I mean, I think you sort of

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accurately encapsulated Harvard's position and goals here

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which is, as you said, not related to academic performance

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necessarily but a diverse campus community and diverse

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student body so that is the academic goal that Harvard is

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attempting to achieve with race-conscious admissions.

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how individual people do or even how in the aggregate people

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do academically or in their majors, Latin Honors, et cetera,

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is sort of irrelevant to Harvard's goal; right.

So

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THE COURT:

So what if you, what if, you know,

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some enormous percentage of the candidates in a certain

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program drop out, so then your class is a lot less diverse

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in year four than it was in year one.

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MS. ELLSWORTH:

I mean, the graduation rates

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in the aggregate is something I think we can probably

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produce.

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so that's --

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We're not -- we're happy with our graduation rates

THE COURT:

Okay.

So let's do that.

Let's

start with that.

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MR. STRAWBRIDGE:

Your Honor, I just wanted to

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be clear also because I think this may address all of the

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concerns that you have.

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Our request at the moment, you've agreed to limit

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it to only aggregate academic performance across, you know,

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ethnicity because we're not interested in getting individual

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student performance.

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perform.

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whether, you know, we ought to care about what happens on

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graduation day.

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We don't care how individual students

But if they're using race, we'd like to see

THE COURT:

All right.

So let's go with the

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aggregate data on graduation day.

I am way less concerned

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with majors changing, et cetera, et cetera; but if the point

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is a diverse class and the class ends up way less diverse on

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the last day than that is on the first day, that might be

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something that is relevant.

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MR. STRAWBRIDGE:

I mean, is there anything

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short of, I mean, I guess when we talk about graduation

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there's also things like academic suspension and transfer

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and that sort of stuff, not within majors but transferring

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out of Harvard.

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THE COURT:
not going to graduate.

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If they transferred out, they're

MR. STRAWBRIDGE:

Okay.

So we're looking at

just graduation rates by ethnicity as directed by Harvard --

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THE COURT:

Yes.

If there is some other

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demographic that you're interested in that they can easily

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put their hands on, that's fine too but --

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MR. STRAWBRIDGE:

All right.

I'd like to

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think about that.

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discovery we find other purported bases for the use of

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race --

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I would just like to, if in the course of

THE COURT:

If you find out that their view,

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that their goal is to whatever, that's somehow related to

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academic permanence, then come back.

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MR. STRAWBRIDGE:

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MS. ELLSWORTH:

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Okay.

All right.

And to clarify, Your Honor,

the graduation rates aggregate by race for what time period?
THE COURT:

Let's do that same, let's do the

same eight years we've been talking about.

That's aggregate

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data.

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MR. STRAWBRIDGE:

Yeah, the only caveat I have

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about that is obviously for four years we don't have

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graduation statistics so I'd like to maybe have them for the

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last eight years for which they have a graduation rate.

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THE COURT:

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MS. ELLSWORTH:

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Do you have any problem with that?
I'm just trying to think.

So

that's going back to --

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THE COURT:

I'm actually not, I don't want to

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extend past that eight years we already talked about.

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already as far back as I want to go so let's do it that way

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and see where we are.

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MR. STRAWBRIDGE:

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MS. ELLSWORTH:

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I'm

All right.

And we'll supplement as the

class graduates.

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THE COURT:

Or if there is some, if we look at

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the data and there is something that suggests a pattern or

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an anomaly in the data, whatever, we can go back and revisit

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that.

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ESI custodians.

All right.

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to produce 11.

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So Harvard has agreed

Carolina case agreed to 24; right?

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SFFA is looking for 25.

MS. ELLSWORTH:

I think the North

I think that was, my

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understanding was that was an initial proposal.

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know, you would know more about it than me.

I don't

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MR. STRAWBRIDGE:
initial proposal.

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That was North Carolina's

THE COURT:

How many have been agreed to

there?

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MR. STRAWBRIDGE:

We have agreed to those 24.

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We actually have an exploratory deposition in a couple weeks

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and we reserved the right to request additional ones --

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THE COURT:

All right.

Just an act of sheer,

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sheer, I don't want to call it "laziness" but "expediency,"

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I'm going to give you the same 24 that North Carolina has.

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MR. STRAWBRIDGE:
us to --

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THE COURT:

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If you can't sort it out, come

back but -- come back but that's where we're going to start.

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You're going to leave it to

MR. STRAWBRIDGE:

Okay.

I hope that we can

sort it out.
THE COURT:

The history of Jewish

discrimination at Harvard.

No.

MR. STRAWBRIDGE:

May I just, if I may just

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inquire as to why -- the current admissions process is an

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offshoot of -- the history of discrimination is relevant to

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our claim for invidious discrimination.

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THE COURT:

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many miles between the history and now.

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unlikely to reveal probative information in this case.

History is old and there has been
It just seems very

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MR. STRAWBRIDGE:

So, I mean, I guess -- I'm

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struggling a little bit because when we come back with our

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invidious discrimination, you know, argument at summary

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judgment and/or a trial, we're going to be -- there is a

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burden upon us to raise the question as to whether they have

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a history of invidious discrimination.

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THE COURT:

First of all, I think that what

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happened then is pretty well documented, right?

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don't even know how you're going to do discovery on this at

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this point.

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I mean, I

This is all, like, in the '40s.
MR. STRAWBRIDGE:

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the '40s.

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I don't think it's all in

recent with respect to --

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Certainly there are documents that are more

THE COURT:

'50s?

I mean, I don't think we

get to the '60s; right?

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MR. STRAWBRIDGE:

I'm not entirely sure.

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There has obviously been a lot of scholarship on it.

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don't think that a lot of that documentation is disputed.

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We would be happy to take a stipulation as to the fact that

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it happened, it was a long time ago but the facts aren't

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disputed.

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I

To the extent that they're disputing the facts of

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the history of discrimination, we'd like to be able to have

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some ability to bring documents forth.

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those documents from public sources, Harvard is the source

And if we can't get

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of letters that their dean was writing to alumni.

This is

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where the holistic admissions process comes from.

I don't

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think it's entirely irrelevant.

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isn't in dispute and we ought to be able to stipulate to it

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but Harvard hasn't offered to do that and failing that I

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need access to these letters if they're not in public

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sources.

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THE COURT:

I agree, like a lot of it

See what is out there.

I mean, I

just think this is so old and so remote and so, it's going

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to be so hard to link to what's happening now anyway that is

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going to, that gives probative evidence, I just think it is

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a red herring time suck.

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What do you think?

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MS. ELLSWORTH:

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THE COURT:

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MS. ELLSWORTH:

You took the words right out

of my mouth.
(Laughter.)
THE COURT:

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Asian discrimination.

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SFFA wants more.

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Is that how you would have phrased

it, "time suck"?

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I agree.

All right.

Prior allegations of

So Harvard is agreeing to two years.

How much more are you looking for?

MR. STRAWBRIDGE:

Well, I mean, I think there

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are different categories, right.

Like, I don't want email

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going back 20 years of when someone complained about the

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fact that they didn't get in but I do think that when

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there -- there was a DOE investigation in the '80s, for

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example, that we referred to in one of our letters.

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think that, you know, the results of that information

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Harvard has regarding that investigation is probative to our

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invidious discrimination claim.

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And I

It is far more recent.

There is a newer investigation within the last, you

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know, two or three years that also looked into those issues

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so, I mean, anything that they have, you know, I would be

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completely reasonable in terms of how they identify the

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documents but I think anything over, you know, going back to

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that DOE investigation --

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THE COURT:

When was the DOE investigation?

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MS. ELLSWORTH:

It was 1990, 1988 to '90.

The

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official OCR investigation and then -- I'm not sure what

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allegations of Asian discrimination you're making precisely.

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I understand Mr. Strawbridge to be saying he's not asking us

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to search email but that could take a lot of different

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forms.

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investigations, that's one thing.

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If we're talking about the two formal open OCR

THE COURT:

Certainly the two open OCR

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investigations they should have.

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sort of systemic allegations, like sort of group allegations

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or --

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MR. STRAWBRIDGE:

And you're talking about

I wouldn't limit it to that

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but I would be willing to come up with a reasonable way to

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identify formal allegations.

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people who have been in the Admissions Office for a long

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time and whenever people have raised issues at the board

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level or at the director level, they go beyond this one

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particular applicant's.

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I mean, they obviously have

Now, I do think the two-year period is relevant

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for, you know, more -- the search of ESI, for example, the

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search terms are going to hit on those anyway.

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MS. ELLSWORTH:

They should.

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MR. STRAWBRIDGE:

So, but for the larger more

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institutional ones, I think the OCR is a good start but if

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there is any -- they know better than I do if they've had

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any internal investigations, if they've ever received

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complaints that have come through other sources that

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prompted some kind of level of review or investigation at

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the department level but --

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THE COURT:

Can you figure out how many

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incidents there were to which Harvard responded at an

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institutional level?

So an investigation and inquiry --

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MS. ELLSWORTH:

If I -- okay.

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THE COURT:

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MS. ELLSWORTH:

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right now are the two OCR investigations.

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and look for in response to this is anything, as you put it,

Not individual students.
Right.

What I'm aware of
What we can go

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that Harvard responded to on an institutional level, not

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individual allegations.

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THE COURT:

Like board level -- I don't know

4

what "director level" means but -- I don't know what "board

5

level" means.

6

MR. STRAWBRIDGE:

There's two boards at

7

Harvard, one that says the inside board and the inside board

8

is the Fellows and -- but I guess what I meant is something

9

that comes to their attention.

I mean, the senior officials

10

in the Admissions Department have been there since the

11

1980s, anything that has come to the level of their

12

attention that goes beyond individual students ought not be

13

too hard for them to recall.

14

MS. ELLSWORTH:

We can -- I mean, so we would

15

be looking to see what the Dean of Admission has responded

16

to.

17

MR. STRAWBRIDGE:

18

MR. SELLSTROM:

Or the Director.

Or the Director of Admissions.

19

I mean, I think any response from that office would have

20

come from one of those two either way.

21

going to allow us to narrow it that much.

22

talking about not an individual complaint of discrimination

23

but more a systemic complaint, we can look to see other than

24

the two OCR investigations if there are other systemic

25

responses from either the Dean or Director over Admissions.

I'm not sure that's
But if we're

21

1

THE COURT:

2

MS. ELLSWORTH:

3

right?

I'm sorry, since the 1990s;

THE COURT:

I think that's far enough; right?

From 1990 forward?

6

MR. STRAWBRIDGE:

7

THE COURT:

8

MR. STRAWBRIDGE:

9

So let's do that.

Since the first OCR investigation?

4
5

Okay.

I think that's --

Or the late '80s.
I think that's fine for the

search.

10

THE COURT:

The number of depositions per

11

side.

I don't think it's actually ripe because I don't

12

think anyone has taken ten depositions yet; but that being

13

said, I don't think ten depositions per side is going to be

14

enough so what are you looking for, Mr. Strawbridge?

15

MR. STRAWBRIDGE:

I think our initial proposal

16

was 20.

I don't want to take any more depositions than I

17

have to.

I've got this case and I've got another case so

18

I'm not looking to add to my work load.

19

know, 20 would probably be sufficient.

20

third-party depositions.

21

number of third-party depositions but there may be a few.

22

If we're talking about party Harvard depositions, I think 15

23

to 20 is a good starting point.

24
25

I think that, you
We had carved out

I don't anticipate a tremendous

MS. ELLSWORTH:

We have 24 custodians.

So if we're going to -- I

guess the ten that we agreed to before which I understand

22

1

was before a lot of water went under the bridge here was

2

only Harvard.

3

sure we'd be willing to say only Harvard so 15 Harvard

4

custodians, 20 total, including third parties, and then --

5

If we're going to up that number, I'm not

THE COURT:

Let's start with that.

6

thinking 15.

7

I was

I hadn't factored in the third parties so

let's do that, 15 Harvard and five third party.

8

MR. STRAWBRIDGE:

9

THE COURT:

Subject to our ability to --

Yes.

10

MR. STRAWBRIDGE:

11

THE COURT:

Thank you.

It just struck me that ten wasn't

12

going to be enough and I'd rather give you more general

13

parameters and have you go off and do it than have to be in

14

here what about this one, what about that one.

15

lets you plan better and I think it will keep us better on

16

the discovery schedule.

17

I think it

I think the last thing that I have on my list

18

besides the fields are the confidentiality designations.

19

You want me to review the documents that they're --

20

MR. STRAWBRIDGE:

I think I have to ask, I

21

don't want you to review -- I wish we could work this out

22

but, really, at this point I think we want some input

23

because I don't think the protective order really provides

24

just how do you want us to put these in front of you.

25

you want me to send over a binder?

Do

Do you want me to bring

23

1

them into court one day?

2

the documents?

3

Do you want argument on each of

I wish we weren't there but, for an example,

4

they're just sending over aggregate admission statistics for

5

racial groups and they're marking them "attorneys' eyes

6

only."

7

talked about earlier that shouldn't be marked "attorneys'

8

eyes only."

9

And that's exactly the kind of stuff I thought we

I don't know what to do at this point other than

10

the fact that we're about to get, you know, a lot of email

11

and I am anticipating a lot of the email is going to be

12

marked "attorneys' eyes only" and it's frustrating our

13

ability to manage the case.

14

of what's really --

15
16
17

THE COURT:

I think it's beyond the scope

Who else do you want to have

access to these?
MR. STRAWBRIDGE:

I'd like to be able to show

18

one client representative some of the most important

19

discovery in the case.

20
21
22

THE COURT:

When you say "client

representative," what kind of person are we talking about?
MR. STRAWBRIDGE:

I'm not sure it matters but

23

obviously Mr. Blum is the primary client representative.

24

I'm not necessarily interested in, you know, disseminating

25

this across the entire membership.

I don't necessarily need

24

1

to do that but the Board and/or Mr. Blum are the people who

2

would be most appropriate to, you know, provide an

3

assessment of our case including the most sufficient

4

evidence and that's what the confidential designation is

5

for.

6

THE COURT:

Okay.

So he is talking about

7

Mr. Blum who is not a student or an applicant or anything

8

like that, which I presume would raise different issues for

9

you.

He has to be able to show some stuff to his client.

10

thought we had agreed that aggregate data would go to the

11

I

client.

12

MS. ELLSWORTH:

So the aggregate data that we

13

have produced so far is not, it's not like the aggregate

14

data, it's the one-pagers that are discussed within the

15

Admissions Office throughout the process so it's not like an

16

output of aggregate data.

17

is used quite intricately in the admissions process and so

18

we think that designating it as highly confidential is the

19

inner workings of the admissions process as well as things

20

that relate to individual students that we have, you know,

21

separate reasons for the AEO designation.

22

It's a particular document that

MR. STRAWBRIDGE:

I get the individual

23

students and we've tried to be very accommodating, I think

24

we've made that clear --

25

THE COURT:

Is this like the daily sheet they

25

1

sort of send around with what's going on?

2

MS. ELLSWORTH:

3

THE COURT:

4

MS. ELLSWORTH:

It's not daily but it is --

Frequent, whatever.
It's the sheet, it is a sheet

5

that the Dean of Admissions and Director of Admissions look

6

at from time to time during the height of the admissions

7

process.

8
9

MR. STRAWBRIDGE:

Yes, exactly.

I guess I

feel like the inner workings of the Admissions Office is

10

what the entire case is about.

11

for an attorneys' eyes only designation, then I'm not sure

12

why we have any other designation.

13

THE COURT:

I mean, if that's the ground

Well, what I have tried to think,

14

the way I have tried to think about this in my own head, and

15

maybe I have it right and maybe I don't, is that -- I kind

16

of think of Mr. Blum's kid or his neighbor's kids or

17

everybody he knew is going to apply to Harvard, aggregate

18

data that's not going to give those people an advantage in

19

the admissions process he should be able to see but data

20

that gives insight such that he could figure out who is more

21

likely to get in and who wasn't is what I've sort of been

22

driving along in my own head.

23

going to do that but because that's, when I think about it,

24

that's how I think about it.

25

person to know this in terms of getting their own kid in, I

Not because I think he is

If it would help a particular

26

1

think that they can mark it "highly confidential;" but if

2

it's aggregate data about who's gotten in, you know, there

3

is more aggregate data that is just a reporting of

4

statistics, that I think they should have.

5

that line?

Can we carve

Do I have it wrong?

6

MR. STRAWBRIDGE:

I don't think that line is

7

going to be tenable as the case goes forward and in part

8

because I think that Harvard has a lot, a number of forums

9

and been quite open about the general nature and the

10

workings of its admissions process.

11

the stuff really provides the kind of advantage that Your

12

Honor is concerned about, things like their reader

13

instructions and their instructions to their alumni

14

interviewers.

15

documents.

16

I don't think any of

These are pretty widely disseminated

Secondly, the confidential designation still

17

protects it from dissemination beyond the people who have an

18

interest in seeing it and we're agreeing to further restrict

19

its dissemination to certain members of our clients who do

20

not have an ongoing stake, you know, with respect to a

21

particular student's admission.

22

But, I mean, theoretically they're going to claim

23

that any comment that any admissions officer ever makes

24

about anyone's file is information that could be used to

25

that scope and we're going to have essentially the entire

27

1

case tried under seal.

2

line to hold.

3

I just don't think that's a tenable

MS. ELLSWORTH:

I think there is a different

4

question as far as what we do when it comes time to actually

5

put in evidence at trial --

6

THE COURT:

I agree.

7

MS. ELLSWORTH:

-- or summary judgment so

8

that, I wouldn't -- I mean, we'll have to figure something

9

out then and we will cross that bridge when we come to it

10

but for present purposes -- and I do think Your Honor is

11

drawing the line correctly.

12

which that could be, that line could be abused, you know,

13

the fact that only two people might apply from Montana, to

14

use a random example that is probably not correct, that is

15

hopeful to somebody in Montana or who might send their kid

16

to school in Montana to know that that's, you know,

17

potentially an easier avenue into admissions.

18
19
20

And as an example, the way in

So, again, not that Mr. Blum is going to do this
but the point is that that's the concern.
MR. STRAWBRIDGE:

It think it's such -- I

21

mean, if they would agree to just let us have one client

22

designation, then I would have less concern at this point in

23

the case but since they've held the line on that even like,

24

I mean, they're going to be able to say this about almost

25

every single document that they produce in the case.

I

28

1

just, it's very difficult for us to get strategic guidance

2

before the trial period and to report what the strength of

3

our case is looking like, how it's shaping up if we're

4

basically just hamstrung from using any document whatsoever

5

even if it contains no information about individual

6

applicants.

7

THE COURT:

All right.

How many, like what's

8

the volume of documents we're talking about here if I was

9

inclined to look at them?

10

MR. STRAWBRIDGE:

I mean, right knew we could

11

probably limit it to a small binder and that's largely

12

because of the size of the documents as opposed to the

13

number of the documents.

14

it's going to be a different story but my hope is we can get

15

some real hard and fast guidance that would allow for

16

appropriate designations that would be followed when the

17

emails come in.

18

THE COURT:

When the emails start rolling in,

All right.

Why don't you, you can

19

give me the binder and you want to give me something that

20

says why you're designating each of those documents as

21

confidential.

22

MS. ELLSWORTH:

Yeah, I think so.

I don't

23

know exactly what's going to be in the binder right now

24

but --

25

MR. STRAWBRIDGE:

Maybe what we could do, if

29

1

we can just try to make it easier for everybody, is we can

2

give you a binder and we can essentially give you like, you

3

know, we'll try to limit it to a line or two about why we

4

think the designation is inappropriate and they can give a

5

line or two in response to each document and we could keep

6

it to a reasonable --

7

THE COURT:

Maybe we will just come and sit

8

here again with the binder and just go through it page by

9

page and then you'll have some idea of how I'm going to rule

10

on these things.

11

MR. STRAWBRIDGE:

12

THE COURT:

13

MR. STRAWBRIDGE:

18
19

THE COURT:
fields?

MS. ELLSWORTH:

The only other issue I have is

alumni interviewers.
THE COURT:

21

MS. ELLSWORTH:

23

I prefer not to give

Is that everything but for the

20

22

Yeah.

a binder but if we've got to do that, we've got to do that.

16
17

It's hard for me when I don't know

what these are.

14
15

Okay.

Is that ripe at the moment?
There is a pending discovery

request for names.
MR. STRAWBRIDGE:

I think the discovery field

24

discussion will get into this so I think we can probably

25

have it as part of that discussion.

30

1

THE COURT:

Okay.

2

(Pause in proceedings.)

3

MR. SELLSTROM:

4
5

Is it time for me to exit?

(Laughter.)
MR. SELLSTROM:

Thank you, Your Honor.

6

(Whereupon, Mr. Sellstrom exited the robing room.)

7

(Whereupon, the remainder of the proceedings were

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

sealed and transcribed under separate cover.)

31

C E R T I F I C A T E

I, Carol Lynn Scott, Official Court Reporter for
the United States District Court for the District of
Massachusetts, do hereby certify that the foregoing pages
are a true and accurate transcription of my shorthand notes
taken in the aforementioned matter to the best of my skill
and ability.

/S/CAROL LYNN SCOTT

_________________________________________
CAROL LYNN SCOTT
Official Court Reporter
John J. Moakley Courthouse
1 Courthouse Way, Suite 7204
Boston, Massachusetts 02210
[phone]

DATE: September 30, 2016