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

Filing 318

Letter/request (non-motion) from Harvard in Response to the May 19, 2017 Letter 315 from SFFA. (Ellsworth, Felicia)

May 23, 2017
VIA ECF

Felicia H. Ellsworth
[phone] (t)
[phone] (f)
[e-mail]

Honorable Allison D. Burroughs
U.S. District Court, District of Massachusetts
John Joseph Moakley U.S. Courthouse
1 Courthouse Way
Boston, MA 02210
Re: Students for Fair Admissions, Inc. v. President and Fellows of Harvard College
No. 1:14-cv-14176-ADB
Dear Judge Burroughs,
I write in response to the May 19, 2017 letter filed by Students for Fair Admissions, Inc.
requesting an indefinite stay of the close of fact discovery pending this Court’s rulings on certain
of SFFA’s discovery motions.
SFFA has provided no basis for its request. The eleven-month fact discovery period negotiated
by the parties (already elongated, at SFFA’s insistence, beyond the nine months Harvard initially
proposed and the Court indicated it had intended to set) has provided SFFA with ample
opportunity to take discovery in this case, and extending the deadline so that SFFA can propound
more discovery and take more depositions (beyond the 15-deposition limit on party depositions
imposed by the Court, already five more than the presumptive limit under the Federal Rules) is
unnecessary and would impose a significant and unnecessary burden on Harvard.
As of this writing, SFFA has taken eight depositions of Harvard witnesses, and noticed five
more. Thus, thirteen of the fifteen Harvard depositions that the Court has afforded SFFA have
either happened already or are on the calendar. Nothing is preventing SFFA from scheduling its
remaining two depositions. SFFA has also scheduled all five of the third-party depositions
granted it by the Court, and one has already taken place. Given these facts, and the breadth of
Harvard’s document production, it strains credulity to suggest that the Court is somehow
“impeding SFFA’s ability to schedule its remaining depositions, to obtain important documents
that are necessary before those depositions take place, and to allow expert witnesses to make
progress before the initial expert reports are due.” SFFA’s ability to schedule depositions and
interrogate witnesses about important documents has been unfettered. As for the claim that this
Court is somehow impeding SFFA’s expert analysis, Harvard made an initial production of
voluminous data from its admissions database nearly two years ago, while this litigation was
stayed pending Fisher II, and completed its production of additional data months ago. As the
Court explicitly explained, this early and extensive data production was made for the express
purpose of allowing SFFA’s experts to advance their analysis during the stay, and well before
expert reports are due.

Honorable Allison D. Burroughs
May 23, 2017
Page 2
SFFA’s vague and unsupported accusation that Harvard has somehow been “emboldened”
because a handful of discovery motions remain unresolved is also without merit. In fact, just the
opposite is true—when SFFA served additional document requests just two months ago, after
Harvard had substantially completed its document production, Harvard nevertheless agreed in
response to conduct additional ESI searching and to review, collect, and produce additional
categories of documents. Harvard is currently in the process of making additional productions to
SFFA in response to these additional requests. As SFFA’s letter acknowledges, Harvard has
borne a highly disproportionate burden of discovery throughout this case, producing tens of
thousands of pages of documents (compared to SFFA’s 1,964), and producing 15 witnesses for
depositions. And SFFA’s suggestion that Harvard has “refused to even negotiate” as to certain
discovery disputes is equally baffling in light of the ongoing and, in Harvard’s view, cooperative
work of the parties to resolve discovery disputes without the Court’s intervention wherever
possible.1
SFFA’s apparent motivation for the requested stay of the fact discovery deadline is to allow
additional time within which SFFA must complete any additional depositions it seeks to take. If
SFFA sincerely believes that it needs testimony from additional witnesses, it should use its
remaining two depositions to seek that testimony in the month before fact discovery closes.2
SFFA waited until only a few months remained in the fact discovery period to even begin
noticing depositions, and Harvard has worked diligently to make its witnesses available on short
notice and within the time period set by the Court. SFFA cannot properly be heard to complain
that it needs more time to complete discovery, merely because it has failed to take advantage of
all the depositions that this Court has already allowed it.
Respectfully yours,
/s/ Felicia H. Ellsworth
Felicia H. Ellsworth

1
To the extent Harvard has not agreed to produce documents in response to SFFA’s more recent requests, it
is because SFFA’s requests seek to revisit areas already ruled irrelevant by the Court. For example, SFFA served a
new document request seeking “all documents, reports, studies, or analyses concerning the educational performance
of students (including, but not limited to, GPA, fields of study, and concentrations) on the basis of race, ethnicity, or
first-generation status.” This seeks identical information to a document request this Court previously ruled
irrelevant, noting that “data relating to the academic performance of matriculated students . . . is [not] likely to lead
to the discovery of admissible evidence.” Dkt. 181, ¶ 4. Thus, Harvard’s refusal to produce documents in response
to that request is entirely appropriate, as SFFA apparently realizes, having just yesterday filed a motion seeking to
revisit this ruling, to which Harvard will respond separately.
2
Harvard has previously explained why SFFA’s letter motion seeking to add new ESI custodians, take six
more depositions of Harvard witnesses, and re-depose Harvard’s Director of Admissions should be denied. See
Harvard’s Response to SFFA’s Letter Motion re Custodians and Depositions, filed under seal May 3, 2017 (leave to
file granted by Dkt. 302).