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 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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1 1 UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS 2 3 4 5 6 7 8 9 10 11 * * * * * * * * * * * * * * * STUDENTS FOR FAIR * ADMISSIONS, INC., * Plaintiff, * * vs. * * PRESIDENT AND FELLOWS OF * HARVARD COLLEGE, et al, * Defendants. * * * * * * * * * * * * * * * * CIVIL ACTION No. 14-14176-ADB BEFORE THE HONORABLE ALLISON D. BURROUGHS UNITED STATES DISTRICT JUDGE STATUS CONFERENCE A P P E A R A N C E S 12 13 14 CONSOVOY McCARTHY PARK PLLC Ten Post Office Square, 8th Floor Boston, Massachusetts 02109 for the plaintiff By: Patrick Strawbridge, Esq. 15 16 17 18 WILMER CUTLER PICKERING HALE and DORR LLP (Bos) 60 State Street Boston, Massachusetts 02109 for the defendants By: Felicia H. Ellsworth, Esq. 19 20 21 22 23 24 25 Courtroom No. 17 Robing Room John J. Moakley Courthouse 1 Courthouse Way Boston, Massachusetts 02210 September 6, 2016 9:30 a.m. 2 1 APPEARANCES CONTINUED 2 3 4 5 WILMER CUTLER PICKERING HALE and DORR LLP 1875 Pennsylvania Avenue, NW Washington, D.C. 20006 for the defendant By: Daniel Winik, Esq. 6 7 8 9 10 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. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CAROL LYNN SCOTT, CSR, RMR Official Court Reporter One Courthouse Way, Suite 7204 Boston, Massachusetts 02210 (617) 330-1377 3 1 P R O C E E D I N G S 2 THE CLERK: This is civil action 14-14176, 3 Students for Fair Admissions versus President and Fellows of 4 Harvard College. 5 record. 6 7 MR. STRAWBRIDGE: 10 MR. SELLSTROM: Oren Sellstrom from the Lawyers' Committee for Civil Rights on behalf of the Student MB. 11 MS. MADGE: 12 MS. ELLSWORTH: 13 Patrick Strawbridge for SFFA. 8 9 Will counsel identify themselves for the Sara Madge for Harvard. Felicia Ellsworth on behalf of Harvard. 14 MR. WINIK: Daniel Winik on behalf of Harvard. 15 THE COURT: Okay. The reason I jammed this in 16 this week is that this is my law clerk Kelly who has been on 17 this case from the beginning, this is her last week so I 18 wanted to see what we could wrap up while she was still here 19 and we had some institutional knowledge on the case. 20 is starting today. 21 case. 22 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. 23 THE LAW CLERK: 24 THE COURT: 25 Monica And Yes. Did Sarah go just law school or did she go undergrad and law school too? She just went to 4 1 law school; right? 2 THE LAW CLERK: 3 THE COURT: I think she went to both. All right. So one of them is 4 going to be assigned to the case. 5 morning that she did some work in the Admissions Office as a 6 freshman essentially opening mail and various ministerial 7 tasks. 8 way I assign the odd and even cases but because she spent 9 time in the Admissions Office, if you prefer the other law 10 Monica tells me this She would normally be assigned to this just by the clerk, I'm fine with that. 11 MS. ELLSWORTH: I don't have a preference. 12 don't think that will create an issue in terms of 13 impartiality. I 14 I'm fine either way. MR. STRAWBRIDGE: If it's low-level work, I 15 doubt it. 16 some of the people who will be involved in the case and some 17 of the things -- I guess I'm not going to overlay Your 18 Honor's view as to -- 19 20 21 22 23 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 24 this discussion with her so for all I know she also worked 25 in the Admissions Office. Monica told me this morning so. 5 1 MR. STRAWBRIDGE: I suppose that, I mean, if 2 they both worked in the Admissions Office, then maybe we 3 have to revisit the question; but if there, given, it just 4 seems like be it might be easier -- 5 THE COURT: No, I don't dispute that. So 6 you're certainly more than welcome to sit in today but I 7 think all things being whole, we'll swap it, okay. 8 seems more fair. 9 All right. It just So that's the first thing. 10 The second thing is I know you still have a motion 11 pending on organizational standing and I just haven't had a 12 chance to look at it so I will get back to that hopefully in 13 the next week or two. 14 closely the first time so I don't anticipate making any 15 changes to it but I will go back to it. 16 a chance to do it. 17 18 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 19 Honor, you probably recall this, but you asked us not to 20 respond to their motion for reconsideration. 21 THE COURT: 22 MR. STRAWBRIDGE: 23 24 25 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 6 1 in but not much beyond that. 2 at it pretty closely the first time around so we'll -- but I 3 will look at it again. 4 MS. ELLSWORTH: 5 THE COURT: I just, I just know we looked That's fine. So what I've done is I tried to 6 pick through all these letters that I have and see if I can 7 tee up what all the issues are. 8 can let me know before we go but -- so so far Harvard has 9 agreed to and I assume is producing or has produced two If I missed any, you all 10 years of admissions data. You've asked for an additional 11 six years for eight total; correct? 12 MR. STRAWBRIDGE: 13 THE COURT: Correct. My reading of Fisher says that 14 three years is not enough and that raises the issue what is 15 enough. 16 after this thinks that you should get all eight. 17 thinking more like six. 18 understand is how much more burdensome it is to produce 19 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 -- 20 MS. ELLSWORTH: It's not. So it depends on 21 which direction we're going. 22 only, the only existing year now until a new cycle starts, 23 it's a totally new platform called Slate which is different 24 from what we've been producing from for the two years that 25 were produced. So the year 2020 which is 7 1 So going backwards it is, it's not just the push of 2 a button but it is a similar format. Some of the fields 3 won't exist in earlier years, right. Some things were 4 added. 5 backwards than forward from the administrative -- Some field names might change but it is easier to go 6 THE COURT: So how about this as a compromise. 7 I give you the eight years but only make them go 8 backwards -- 9 MR. STRAWBRIDGE: That's fine with us. I 10 suppose, I think Harvard had more of an interest in having a 11 more recent year but I think we view pre-employment (ph.) 12 years as more probative anyway. 13 MS. ELLSWORTH: We're certainly happy to go 14 backwards. 15 maybe doing individualized data fields for whatever number 16 of years you might honor and then some -- that you order, 17 excuse me, and some aggregate data back, further back, back 18 eight years. 19 each -- 20 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 21 because Fisher says three isn't enough and, so it's not 22 going to be, it's going to be between six and eight but what 23 about that six years going backwards with the aggregate data 24 for the seventh and eighth years? 25 MR. STRAWBRIDGE: Obviously we prefer eight 8 1 but six years going backwards is certainly a good start. 2 guess -- 3 THE COURT: All right. Let's do this. I Six 4 years going backwards, aggregate data for seven and eight. 5 If there is anything in the aggregate data that looks 6 anomalous to you, you can raise it and we'll see about 7 digging deeper into that, okay. 8 9 10 MR. STRAWBRIDGE: years that they've already produced? THE COURT: They produced the two most recent years, right? 13 MR. STRAWBRIDGE: 14 THE COURT: 15 Right. So six years prior, so four years complete data prior and then two years of aggregate data. 16 MR. STRAWBRIDGE: 17 MS. ELLSWORTH: 18 So just to make sure I understand, we're talking about the six years prior to the 11 12 Okay. Okay. So we're producing four more years going backwards? 19 THE COURT: Yes. 20 MS. ELLSWORTH: 21 THE COURT: And then for aggregate data -- So you guys can sort out aggregate 22 data. And if it ends up being easier for you to produce all 23 six years in the same way, that's fine too. 24 concerns about, you know, there is a view, even a view in my 25 chambers that, you know, two complete four-year cycles is But I do have 9 1 what makes the most sense. 2 as four-year snapshots as more like individual year 3 snapshots. 4 5 I'm sort of looking at it less MS. ELLSWORTH: That's certainly how the Admissions Office looks at it. 6 THE COURT: So six years seems, six years 7 seems fine to me and I feel like the older, the further we 8 go back kind of the less probative it is; but that seems 9 like a reasonable compromise to me, six years going 10 backwards altogether, so it's four more years plus two years 11 aggregate data unless you decide that it's easier to just 12 produce all the data because coming up with some model for 13 the aggregate data might turn out to be more of a pain in 14 the butt than it's worth. 15 MR. STRAWBRIDGE: Yeah, I think we will have 16 to work through what's included in that aggregate data. 17 may have different concepts of what's sufficiently detailed 18 enough although still aggregated versus what's not. 19 20 MS. ELLSWORTH: We We can try and work that out -- 21 THE COURT: Try and work it out. I'll tell 22 you this: If you can't work it out, I'm going to be 23 inclined to just say produce the full eight years because 24 that, it's just not worth spending a lot of time trying to 25 compose a whole different data set. If it's easy to do and 10 1 it gives you what you're looking for, we'll do it. 2 go with the whole eight. Okay? 3 MS. ELLSWORTH: 4 THE COURT: 5 If not, Okay. All right. So we'll get back to the database fields after Mr. Sellstrom leaves. 6 All right. So this data about academic 7 performance, so I did go back and look at my transcript and 8 I had initially sort of suggested that I was inclined to let 9 you dig into that. And now upon further reflection and 10 after reading Fisher I don't see how it's actually relevant. 11 I don't see that -- unless, unless you can make an argument 12 to me that Harvard's reasons for affirmative action are to 13 have some sort of impact on academic performance and I don't 14 think that that is the purpose of their affirmative action 15 program so I don't think that academic performance is 16 relevant to the analysis. 17 18 19 MR. STRAWBRIDGE: So, a couple of responses to that. I don't know and I think it's way too early in the 20 case to know what all of Harvard's reasons are for its 21 affirmative action programs and so I think it's premature to 22 just determine that it has no relevance or that we 23 understand what the purpose of its use raises. 24 it's premature to kind of make an assessment on that. 25 So I think Secondly, I would just refer the Court to the 11 1 language in Fisher II which specifically notes the 2 University's ongoing need to, among other things, quote, 3 Identify the affects, both positive and negative, of the 4 affirmative action measures the University deems necessary 5 And what's happening once these students are admitted, what 6 their retention rate is like, are they staying in the majors 7 they were admitted in? 8 performance in the field is highly relevant as to whether or 9 not the use of race is achieving the purported goals. 10 What's happening with respect to the THE COURT: Well, they say, I mean, they say 11 the purported goals are a diverse class regardless of how 12 all of those people performed, unless they're dropping out I 13 guess. 14 MR. STRAWBRIDGE: 15 THE COURT: 16 17 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 18 accurately encapsulated Harvard's position and goals here 19 which is, as you said, not related to academic performance 20 necessarily but a diverse campus community and diverse 21 student body so that is the academic goal that Harvard is 22 attempting to achieve with race-conscious admissions. 23 how individual people do or even how in the aggregate people 24 do academically or in their majors, Latin Honors, et cetera, 25 is sort of irrelevant to Harvard's goal; right. So 12 1 THE COURT: So what if you, what if, you know, 2 some enormous percentage of the candidates in a certain 3 program drop out, so then your class is a lot less diverse 4 in year four than it was in year one. 5 MS. ELLSWORTH: I mean, the graduation rates 6 in the aggregate is something I think we can probably 7 produce. 8 so that's -- 9 10 We're not -- we're happy with our graduation rates THE COURT: Okay. So let's do that. Let's start with that. 11 MR. STRAWBRIDGE: Your Honor, I just wanted to 12 be clear also because I think this may address all of the 13 concerns that you have. 14 Our request at the moment, you've agreed to limit 15 it to only aggregate academic performance across, you know, 16 ethnicity because we're not interested in getting individual 17 student performance. 18 perform. 19 whether, you know, we ought to care about what happens on 20 graduation day. 21 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 22 aggregate data on graduation day. I am way less concerned 23 with majors changing, et cetera, et cetera; but if the point 24 is a diverse class and the class ends up way less diverse on 25 the last day than that is on the first day, that might be 13 1 something that is relevant. 2 MR. STRAWBRIDGE: I mean, is there anything 3 short of, I mean, I guess when we talk about graduation 4 there's also things like academic suspension and transfer 5 and that sort of stuff, not within majors but transferring 6 out of Harvard. 7 8 THE COURT: not going to graduate. 9 10 If they transferred out, they're MR. STRAWBRIDGE: Okay. So we're looking at just graduation rates by ethnicity as directed by Harvard -- 11 THE COURT: Yes. If there is some other 12 demographic that you're interested in that they can easily 13 put their hands on, that's fine too but -- 14 MR. STRAWBRIDGE: All right. I'd like to 15 think about that. 16 discovery we find other purported bases for the use of 17 race -- 18 I would just like to, if in the course of THE COURT: If you find out that their view, 19 that their goal is to whatever, that's somehow related to 20 academic permanence, then come back. 21 MR. STRAWBRIDGE: 22 MS. ELLSWORTH: 23 24 25 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 14 1 data. 2 MR. STRAWBRIDGE: Yeah, the only caveat I have 3 about that is obviously for four years we don't have 4 graduation statistics so I'd like to maybe have them for the 5 last eight years for which they have a graduation rate. 6 THE COURT: 7 MS. ELLSWORTH: 8 Do you have any problem with that? I'm just trying to think. So that's going back to -- 9 THE COURT: I'm actually not, I don't want to 10 extend past that eight years we already talked about. 11 already as far back as I want to go so let's do it that way 12 and see where we are. 13 MR. STRAWBRIDGE: 14 MS. ELLSWORTH: 15 I'm All right. And we'll supplement as the class graduates. 16 THE COURT: Or if there is some, if we look at 17 the data and there is something that suggests a pattern or 18 an anomaly in the data, whatever, we can go back and revisit 19 that. 20 ESI custodians. All right. 21 to produce 11. 22 So Harvard has agreed Carolina case agreed to 24; right? 23 SFFA is looking for 25. MS. ELLSWORTH: I think the North I think that was, my 24 understanding was that was an initial proposal. 25 know, you would know more about it than me. I don't 15 1 2 MR. STRAWBRIDGE: initial proposal. 3 4 That was North Carolina's THE COURT: How many have been agreed to there? 5 MR. STRAWBRIDGE: We have agreed to those 24. 6 We actually have an exploratory deposition in a couple weeks 7 and we reserved the right to request additional ones -- 8 THE COURT: All right. Just an act of sheer, 9 sheer, I don't want to call it "laziness" but "expediency," 10 I'm going to give you the same 24 that North Carolina has. 11 12 MR. STRAWBRIDGE: us to -- 13 14 THE COURT: 17 18 19 If you can't sort it out, come back but -- come back but that's where we're going to start. 15 16 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 20 inquire as to why -- the current admissions process is an 21 offshoot of -- the history of discrimination is relevant to 22 our claim for invidious discrimination. 23 THE COURT: 24 many miles between the history and now. 25 unlikely to reveal probative information in this case. History is old and there has been It just seems very 16 1 MR. STRAWBRIDGE: So, I mean, I guess -- I'm 2 struggling a little bit because when we come back with our 3 invidious discrimination, you know, argument at summary 4 judgment and/or a trial, we're going to be -- there is a 5 burden upon us to raise the question as to whether they have 6 a history of invidious discrimination. 7 THE COURT: First of all, I think that what 8 happened then is pretty well documented, right? 9 don't even know how you're going to do discovery on this at 10 this point. 11 I mean, I This is all, like, in the '40s. MR. STRAWBRIDGE: 12 the '40s. 13 I don't think it's all in recent with respect to -- 14 15 Certainly there are documents that are more THE COURT: '50s? I mean, I don't think we get to the '60s; right? 16 MR. STRAWBRIDGE: I'm not entirely sure. 17 There has obviously been a lot of scholarship on it. 18 don't think that a lot of that documentation is disputed. 19 We would be happy to take a stipulation as to the fact that 20 it happened, it was a long time ago but the facts aren't 21 disputed. 22 I To the extent that they're disputing the facts of 23 the history of discrimination, we'd like to be able to have 24 some ability to bring documents forth. 25 those documents from public sources, Harvard is the source And if we can't get 17 1 of letters that their dean was writing to alumni. This is 2 where the holistic admissions process comes from. I don't 3 think it's entirely irrelevant. 4 isn't in dispute and we ought to be able to stipulate to it 5 but Harvard hasn't offered to do that and failing that I 6 need access to these letters if they're not in public 7 sources. 8 9 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 10 to be so hard to link to what's happening now anyway that is 11 going to, that gives probative evidence, I just think it is 12 a red herring time suck. 13 What do you think? 14 MS. ELLSWORTH: 15 THE COURT: 16 19 20 MS. ELLSWORTH: You took the words right out of my mouth. (Laughter.) THE COURT: 21 Asian discrimination. 22 SFFA wants more. 23 Is that how you would have phrased it, "time suck"? 17 18 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 24 are different categories, right. Like, I don't want email 25 going back 20 years of when someone complained about the 18 1 fact that they didn't get in but I do think that when 2 there -- there was a DOE investigation in the '80s, for 3 example, that we referred to in one of our letters. 4 think that, you know, the results of that information 5 Harvard has regarding that investigation is probative to our 6 invidious discrimination claim. 7 And I It is far more recent. There is a newer investigation within the last, you 8 know, two or three years that also looked into those issues 9 so, I mean, anything that they have, you know, I would be 10 completely reasonable in terms of how they identify the 11 documents but I think anything over, you know, going back to 12 that DOE investigation -- 13 THE COURT: When was the DOE investigation? 14 MS. ELLSWORTH: It was 1990, 1988 to '90. The 15 official OCR investigation and then -- I'm not sure what 16 allegations of Asian discrimination you're making precisely. 17 I understand Mr. Strawbridge to be saying he's not asking us 18 to search email but that could take a lot of different 19 forms. 20 investigations, that's one thing. 21 If we're talking about the two formal open OCR THE COURT: Certainly the two open OCR 22 investigations they should have. 23 sort of systemic allegations, like sort of group allegations 24 or -- 25 MR. STRAWBRIDGE: And you're talking about I wouldn't limit it to that 19 1 but I would be willing to come up with a reasonable way to 2 identify formal allegations. 3 people who have been in the Admissions Office for a long 4 time and whenever people have raised issues at the board 5 level or at the director level, they go beyond this one 6 particular applicant's. 7 I mean, they obviously have Now, I do think the two-year period is relevant 8 for, you know, more -- the search of ESI, for example, the 9 search terms are going to hit on those anyway. 10 MS. ELLSWORTH: They should. 11 MR. STRAWBRIDGE: So, but for the larger more 12 institutional ones, I think the OCR is a good start but if 13 there is any -- they know better than I do if they've had 14 any internal investigations, if they've ever received 15 complaints that have come through other sources that 16 prompted some kind of level of review or investigation at 17 the department level but -- 18 THE COURT: Can you figure out how many 19 incidents there were to which Harvard responded at an 20 institutional level? So an investigation and inquiry -- 21 MS. ELLSWORTH: If I -- okay. 22 THE COURT: 23 MS. ELLSWORTH: 24 right now are the two OCR investigations. 25 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 20 1 that Harvard responded to on an institutional level, not 2 individual allegations. 3 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 (617) 330-1377 DATE: September 30, 2016

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