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

Filing 384

Transcript of Hearing held on February 7, 2018, 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: Joan Daly at Redaction Request due 3/14/2018. Redacted Transcript Deadline set for 3/26/2018. Release of Transcript Restriction set for 5/22/2018. (Scalfani, Deborah)

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1 1 UNITED STATES DISTRICT COURT 2 DISTRICT OF MASSACHUSETTS 3 ___________________________________ 4 STUDENTS FOR FAIR ADMISSIONS, INC., Plaintiff, 5 6 v. 7 PRESIDENT AND FELLOWS OF HARVARD COLLEGE (HARVARD CORPORATION), et al., 8 9 10 Civil Action No. 14-14176-ADB February 7, 2018 Pages 1 to 34 Defendants. _________________________________ 11 12 13 14 15 TRANSCRIPT OF HEARING BEFORE THE HONORABLE ALLISON D. BURROUGHS UNITED STATES DISTRICT COURT JOHN J. MOAKLEY U.S. COURTHOUSE ONE COURTHOUSE WAY BOSTON, MA 02210 16 17 18 19 20 21 22 23 24 25 JOAN M. DALY, RMR, CRR Official Court Reporter John J. Moakley U.S. Courthouse One Courthouse Way, Room 5507 Boston, MA 02210 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 APPEARANCES: FOR THE PLAINTIFF: JOHN MICHAEL CONNOLLY Consovoy McCarthy Park PLLC 3033 Wilson Boulevard, Suite 700 Arlington, Virginia 22201 703.243.9423 PATRICK STRAWBRIDGE Consovoy McCarthy Park PLLC 8th Floor, South, PMB #706 Ten Post Office Square Boston, Massachusetts 02109 617.227.0548 BENJAMIN C. CALDWELL Burns & Levinson LLP One Citizens Plaza, Suite 1100 Providence, Rhode Island 02903 401.831.8330 FOR THE DEFENDANTS: WILLIAM F. LEE FELICIA H. ELLSWORTH ANDREW S. DULBERG Wilmer Cutler Pickering Hale and Dorr LLP 60 State Street Boston, Massachusetts 02109 617.526.6556 SARA M. MADGE Harvard University Office of General Counsel Smith Campus Center, Suite 980 Cambridge, Massachusetts 02138 617.495.1280 3 P R O C E E D I N G S 1 2 (The following proceedings were held in open 3 court before the Honorable Allison D. Burroughs, United 4 States District Judge, United States District Court, District 5 of Massachusetts, at the John J. Moakley United States 6 Courthouse, 1 Courthouse Way, Boston, Massachusetts, on 7 February 7, 2018.) 8 9 THE CLERK: All rise. Court is in session. Please be seated. This is civil action 14-14176, Students for Fair 10 Admissions versus Harvard College. Will counsel identify 11 yourselves for the record. 12 MR. CONNOLLY: Good afternoon, Your Honor. 13 Benjamin Caldwell for the plaintiff, Students for Fair 14 Admissions, Inc. 15 16 17 MR. STRAWBRIDGE: Patrick Strawbridge and Michael Connolly also for the plaintiff. MR. LEE: Good afternoon, Your Honor. For Harvard 18 College, Bill Lee, Felicia Ellsworth, Drew Dulberg and Greg 19 Schmidt from Wilmer Hale. And from Harvard, Sara Madge at 20 the table behind us. 21 22 THE COURT: I'm sorry. I have your first name, Sara. What is your last name? 23 MS. MADGE: Madge, M-A-D-G-E. 24 THE COURT: I have three at the first table. Who 25 else is behind you there? 4 1 MR. SCHMIDT: Greg Schmidt, S-C-H-M-I-D-T. 2 THE COURT: All right. So I have all the paperwork 3 on the motion. And I have reviewed all the attachments and 4 the documents that were submitted by Harvard. And what I 5 would like to propose is that I and the court reporter and 6 Harvard go back to my little conference room and try and hash 7 some of this out. Acceptable? MR. STRAWBRIDGE: Obviously we won't object if 8 9 that's what you'd like to do. When you come back there may 10 be need to put a ruling on the record or otherwise address 11 it. 12 THE COURT: That's all right. I'm going to do this 13 on the record back there, but I just have some questions 14 about some of the documents, and I wanted to talk to them 15 about that. I could do it cryptically here, but it seems it 16 would be more productive to do it back there. 17 MR. STRAWBRIDGE: That's fine. 18 [Hearing held in camera. In camera hearing 19 transcript will be sealed.] 20 THE COURT: We're back on the record. Thank you 21 for your patience. We went through these documents pretty 22 carefully. I'd gone through them pretty carefully before we 23 got there with them, but I wanted to do some follow up with 24 them. This is going to be a little awkward to do because I 25 was working out of the binders that they had provided of 5 1 their documents which those documents themselves aren't Bates 2 stamped. 3 So it's not like a -- I'm sure there's an easy way 4 to figure out what I was talking about in there, but I 5 haven't gotten it organized. I did borrow from them the 6 highlighted privilege log which you had provided which is the 7 one thing I hadn't brought out on the bench with me. I am 8 going to try and start with some of the easier ones of this 9 and then kind of back into the rest of it. 10 I'm not rejecting your motion in terms of 11 timeliness. I think given how far we are from summary 12 judgment, that it's not an untimely request. There are -- 13 let's start with the Harvard Not Fair documents. My 14 understanding was that there were 10 of them to begin with. 15 They produced five more in light of your objections. You 16 identified five more which makes the balance of the ten. 17 I had trouble figuring out exactly which the five 18 were. So I think one of the five that you identified was 19 document 193, and I don't have that. They don't have that. 20 So I'm not sure where that reference comes from. So am I 21 right that one of the five is 193, or do you want to tell me 22 what the five are? 23 MS. ELLSWORTH: Your Honor, we figured it out. I 24 can explain it. It was mentioned in the brief, but it wasn't 25 highlighted on the privilege log. So when we did the 6 1 production of in camera review, it was not included because 2 we worked off of the highlighted log. So we can certainly 3 submit it after. 4 5 6 7 8 9 THE COURT: Are you pressing your objection on 193 once you figure out what it is? MR. CONNOLLY: Yes. We remain to request that. I apologize for not highlighting it. THE COURT: It's fine. I just didn't have it. Do these numbers correspond to the numbers on the privilege log? 10 MS. ELLSWORTH: They do, Your Honor. 11 THE COURT: I have split these into three binders 12 A, B, and C. C are the redactions; A is the privilege log; 13 and B is the supplemental privilege log. The next one that 14 you identified as having to do with Harvard Not Fair is 257, 15 and that document is going to remain privileged. It relates 16 to a contemplated lawsuit. 17 265 and 275 don't actually correspond to Harvard 18 Not Fair. 265 and 275 are documents that are part of the 19 university's response to the article at general counsel's 20 direction. So we were trying to figure out how you 21 identified those as Harvard Not Fair. It looks to be because 22 of the dates, but those are actually not Harvard Not Fair 23 documents. 24 MR. CONNOLLY: The way we meant to describe it is 25 essentially a time range following Harvard Not Fair. So we 7 1 weren't exactly sure whether each document related to Harvard 2 Not Fair, but that's how we were attempting to organize them 3 in categories for you. 4 THE COURT: Just so you know, those aren't Harvard 5 Not Fair documents. Those go to the university's response 6 basically to the article and the investigation that follows 7 from that. 8 9 And then 287 was the last one of the five, and that is a statement on which they're running by general counsel. 10 It's clearly under the auspices of counsel. So those are the 11 Harvard Not Fair documents. 12 I'm trying to figure out how best to get into 13 these. Let me approach this a different way. There was an 14 investigation after the Unz article came out. The 15 investigation was done under the auspices of the general 16 counsel's office, and most of the documents that you refer to 17 in there are protected by the privilege under the auspices of 18 that investigation. They don't all involve, as you point 19 out, the general counsel. But to the extent this they don't, 20 the general counsel has sought information from people, and 21 those people have sought information from other people. And 22 in that rubric of the investigation are covered by the 23 privilege. 24 25 That being said, there are some documents that they've withdrawn their objection to and other documents that 8 1 2 will be produced for various other reasons. In these binders one of the things that's included, 3 they include not surprisingly a document and the attachments 4 to the document. I want to say in most instances there are 5 attachments that are not privileged that have already been 6 provided to you in other ways. For example, the -- the 7 mission of the committee, the composition of the committee. 8 So there are things in here that I'm not ordering produced 9 now that have already been produced to you. 10 In terms of what -- in terms of this committee, 11 their position is, and I think it's correct, is that to the 12 extent that Mr. Iuliano is not giving legal advice to the 13 committee, nor is the committee giving legal advice to him, 14 but as a prelude to the committee doing its business, there 15 are things that are privileged that concern advice that 16 Mr. Iuliano is giving the university about whether to have a 17 committee, the composition of the committee, etc. That stuff 18 will remain privileged. 19 They assure me, and it doesn't look like there's 20 anything here or much here that covers the committee 21 business. They tell me the committee business has been 22 turned over to you already. They're not trying to privilege 23 it. So what is going to be turned over to you now -- of 24 course I wrote it on the back of some piece of paper. Okay. 25 Let me start with binder C because that's the 9 1 easiest here. So C are the redactions. These are the 2 hardest ones to figure out how to reference for you. I guess 3 they are telling me these are Bates stamped back here. I'm 4 just going to read the last four digits. Okay? 5 5989 they're going to produce. 24156 they're going 6 to produce the second redaction. They're going to produce -- 7 they withdrew their objection to 30556. And on the document 8 that begins with 74737, there's three redactions, basically 9 three redactions on that document. Let me just see what it 10 looks like on yours. It looks on yours like there's one 11 paragraph. There's actually three separate little 12 paragraphs. 13 They're going to produce the first sentence, the 14 third sentence. And on that second middle paragraph, they're 15 going to produce everything but the first sentence. 16 All right. Binder B, which is the supplemental 17 privilege. All right. So there were some attachments that 18 they're not sure that have been turned over, but they're 19 going to double check. And you will get all the attachments 20 that reflect pure data. There's some polls that look like 21 they're from the common application that are attachments. 22 They're going to turn those over. There are two of those. 23 There's like a survey that has some handwriting on 24 it. I have it at tab 88. They're going to redact the 25 handwriting but produce the rest of 88. They're going to 10 1 produce 101. They're going to produce 104 with one 2 redaction. And I think that covers it from binder B, right? 3 Eric, are you keeping track with me? Do I have that right? MS. ELLSWORTH: I think so. We'll cross check our 4 5 notes. THE COURT: I think that's right. Binder A. So, 6 7 for example, some of the statistical information, they're 8 going to give you all the purely statistical data. But I 9 know there's one at 34. They're going to produce 283 -- no. 10 I take that back. 283 they say they've already produced but 11 in redacted form, and the redaction is going to be allowed. They're going to produce 275, and they're going to 12 13 produce 278 with one redaction. And again in this binder 14 there were things like the charge of the committee, the 15 invitation to join the committee, things like that that they 16 say have already been produced that are just attachments to 17 the documents you actually referenced. So those are my 18 rulings. 19 Again we will follow up with at least a short 20 written opinion on this. We've been through these super 21 carefully. I'm comfortable that what we have continued to 22 withhold is privileged. 23 Mr. Strawbridge, you look like you want to speak. 24 MR. STRAWBRIDGE: A couple of questions. I think 25 it would be useful for us to have some clarity as to which 11 1 things they are withdrawing objections on versus which things 2 are being ordered to be produced despite their continuing 3 objections. 4 THE COURT: I'm not sure I took notes like that. 5 Did you take notes like that? I know they withdrew on the 6 redaction at tab 10 in binder C which is -- of course tab 10 7 doesn't mean anything to you. I told you when I was going 8 through them that they've withdrawn on them. Did you all 9 keep notes on which you were withdrawing on? I just didn't 10 11 keep my notes like that. MS. ELLSWORTH: I think we can provide some 12 information based on how these line up with the privilege log 13 and what was withdrawn versus what was ordered produced. 14 THE COURT: There were probably I want to say like 15 three or four things that were withdrawn. Some of them are 16 withdrawn on the legal basis that it's not worth fighting 17 about anymore. Okay? 18 MR. STRAWBRIDGE: We certainly could have had that 19 before today, but I understand. The second question, I 20 suppose, is with respect to material in which there was 21 assurances provided that we've already received the document. 22 It's unclear to me whether we actually received that document 23 as an attachment to that email or we received another copy of 24 it somewhere else. Sometimes as you know -- 25 THE COURT: I understand the question. I will let 12 1 them supplement my response to that, but in most cases you 2 got it as an attachment to something else. Maybe in all 3 cases. 4 MR. STRAWBRIDGE: I would request that Harvard 5 actually produce it with whatever redacted version of the 6 cover email so we can actually see who got this information, 7 at what point in time because it may be important. 8 9 THE COURT: Well, in some cases, for example, I want to be careful here. In some cases like the charge to 10 the committee which reflects -- the charge to the committee 11 went through several iterations and editing by the general 12 counsel's office, right, because it included their 13 reflections on what the law requires. So some of those as 14 they were in final form were still being circulated in the 15 general counsel's office. 16 Others of them, and I'm not sure, but others of 17 them may have been outside the general counsel's office. And 18 to the extent that there are those, you can turn over those 19 redacted emails if they're not under the rubric that we've 20 discussed. 21 MS. ELLSWORTH: Right. What we've produced would 22 be the final version, for in the example the charge to the 23 committee. I understand the argument being made. But the 24 point of the privilege log is first of all that information 25 is there, and we included the file name. So it's clear when 13 1 we're talking about, again to keep on the charge to committee 2 point, it's clear who that has gone to or not based on the 3 privilege log. 4 5 6 Second of all, sometimes that information itself is privileged, who it's to, etc. THE COURT: Right. I'm not sure there are any 7 documents. I'm looking through -- as I'm looking through 8 them, at the outset it's not entirely apparent what's an 9 attachment or what's not. This is just an example, something 10 like the charge to the committee and I say they are entitled 11 to that. And they're like, no, no, they've gotten that, but 12 it's an attachment to this prior email which is privileged. 13 MR. STRAWBRIDGE: I'm still of the view that they 14 should be required to produce anything even if it's duplicate 15 to something else in the production that is not itself 16 privileged. 17 18 19 20 21 THE COURT: In those cases you're not entitled to who it went to. MR. STRAWBRIDGE: To the extent it's already produced in the log, I think that may not be right. THE COURT: You're not entitled to the email that 22 transmits it I don't think. For example, if an email says 23 we're sending this to you for legal review before we finalize 24 it. Right? 25 MR. STRAWBRIDGE: Right. Just to clarify my 14 1 position, if the ruling is that some aspect of the 2 transmission email is privileged, that could be redacted. My 3 concern is it sometimes matters when these attachments went 4 out and who received them. 5 THE COURT: Don't you have that in the log? 6 MS. ELLSWORTH: All that information is on the log. 7 It's clear on the log what's an attachment as well by the way 8 it's laid out. THE COURT: I wasn't actually working off the log. 9 10 I was working off the binders which is how that happens. MR. STRAWBRIDGE: Right. I guess I'm looking at 11 12 the log -- you tell me where I'm supposed to look on the log. 13 I'm trying to figure out what Bates number is a duplicate of 14 this document that was sent on this date that was not 15 privileged. THE COURT: No. She doesn't have to tell you which 16 17 document is a duplicate and which isn't. But to the extent 18 that there's an attachment that's not privileged, right, I 19 wanted to make sure that you've gotten the attachment. MR. STRAWBRIDGE: Maybe I should just put this to 20 21 counsel. 22 THE COURT: That's fine. 23 MR. STRAWBRIDGE: There was discussion here. Are 24 you representing that you have produced the attachments to 25 the documents that are logged themselves to the extent 15 1 2 they're not privileged? MS. ELLSWORTH: No. The duplicates of the 3 attachments have already been produced to the extent that the 4 attachment is a non privileged document. 5 6 MR. STRAWBRIDGE: So it's already been produced perhaps because it was sent on another day to another person? 7 MS. ELLSWORTH: Yes. Or a non privileged context. 8 MR. STRAWBRIDGE: So my concern stands. I can't 9 10 11 12 13 14 15 tell who received which of these non privileged documents on what date if they don't reproduce them. THE COURT: So you're not always entitled if you've got it, right? MR. STRAWBRIDGE: If it's information that's on the log I think we are. THE COURT: I'm not sure what you're talking about. 16 If it's on the log, you have it. If it's not privileged, 17 you're not entitled to it. I'm not sure what else is left. 18 MR. STRAWBRIDGE: What I'm having a hard time 19 understanding is what's on the log that includes an 20 attachment which we have received in identical form at 21 another time. That's the piece I can't put together. 22 MS. ELLSWORTH: I think it's clear, Your Honor, 23 from the title of the document, the file names or the 24 subjects on the log what we're talking about here. 25 THE COURT: Hold on. I can give you an example. 16 1 So like what I'm looking at is on the supplemental privilege 2 log -- I don't know if I got this exactly right, but I think 3 that 258, 22, 51 and 53 is a document captioned Statement on 4 Asian American Admissions. They say that you have that. And 5 you can tell from the -- so you can see like document number 6 2 is an attachment to document number 1 to which you're not 7 entitled. MR. STRAWBRIDGE: My understanding, and maybe I'm 8 9 wrong from Ms. Ellsworth, is that we do not actually have 10 document number 2. We have a different document that they 11 claim is identical in substance that was produced with 12 another email at another point in time. 13 THE COURT: Well, if you want her to produce 258, 14 22, 51 and 53 with those numbers on top, I'm sure she'll do 15 it. 16 MS. ELLSWORTH: It's identical to what we have. So 17 we can produce it with a completely redacted cover email. 18 I'm not sure what the point is. 19 MR. STRAWBRIDGE: With respect to the ones for 20 which we already have the cover emails, that's sufficient. 21 Understanding there are other documents which are attachments 22 and may have been circulated to people and the attachments 23 themselves which there's an assertion that we've received an 24 identical document. I don't know how to check that. I don't 25 know how to confirm that. I don't know how to understand 17 1 that. MS. ELLSWORTH: I think, Your Honor, what we can 2 3 probably do is just provide the Bates numbers of what the 4 identical document is for this attachment and how many 5 different times it's been produced. THE COURT: I think what he's saying is say you've 6 7 produced a statement on Asian American admissions, he's not 8 sure it's identical to -- he doesn't have any way to figure 9 out if it's identical to 258, 22, 51, and 53. 10 MS. ELLSWORTH: Right. 11 THE COURT: Why don't you just reproduce them and 12 write those numbers on the top? 13 MS. ELLSWORTH: Which numbers. 14 THE COURT: 258, 22, 51, and 53, the numbers that 15 correspond to the privilege log. MS. ELLSWORTH: That's fine, Your Honor. We can do 16 17 that. 18 THE COURT: All right. 19 MR. STRAWBRIDGE: Okay. I guess my understanding 20 of the conference that was had before this is that it was on 21 the record. 22 THE COURT: Yes. 23 MR. STRAWBRIDGE: Is it possible to request a 24 25 transcript of that? THE COURT: No. 18 1 MR. STRAWBRIDGE: I think I'd be doing my client a 2 disservice if I didn't put a provisional objection on the 3 record about our exclusion. We're concerned there may have 4 been factual information and/or contextual information that 5 goes to them meeting a burden on privilege that we may not 6 have had a chance to rebut. Without the transcript, I can't 7 figure that out. 8 9 THE COURT: My view of it is that normally these decisions are just made on the paper here, and I had a bunch 10 of things I wanted to clarify with them. And rather than 11 just ruling and accepting the assertions of privilege, I've 12 delved deeper into it. So I think I have been more careful 13 than I would have been without that hearing, but you're 14 entitled to your objection. 15 I have made -- in my view I have been very careful 16 to make sure that the documents were, in fact, privileged. 17 And I was -- maybe next time I won't have a hearing if that's 18 going to be your position on it. The hearing resulted in the 19 production of more documents than you would have otherwise 20 gotten. Let me put it that way. Okay? 21 22 MR. STRAWBRIDGE: I'm not suggesting anything. It's just for the record. 23 THE COURT: That's fine. 24 MR. STRAWBRIDGE: I guess I had a separate question 25 which may be set forth in the Court's rulings or could be 19 1 distilled. I just want to make sure I understand what the 2 Court's feeling on this. And that is, particularly with 3 respect to documents concerning the activities of any efforts 4 that Harvard intends to rely upon to satisfy its burden of 5 serious good faith consideration of race neutral 6 alternatives. We certainly contest the fact that we've 7 gotten adequate or complete answers to our questions. 8 THE COURT: Are you talking about the committee? 9 MR. STRAWBRIDGE: There was discussion about the 10 Ryan committee? 11 MS. ELLSWORTH: Yes. 12 THE COURT: There was in here a -- the documents 13 that go to the committee, that go to the activities of the -- 14 there are no documents that go to the substance of the 15 activities of the committee. There's nothing in here in any 16 of these documents that takes place after the committee is 17 formed. The documents that have been withheld all go -- they 18 predate the formation of the committee. There is nothing -- 19 the most recent, I think the most recent document that 20 pertains to the committee are the invitations. 21 MR. STRAWBRIDGE: Okay. 22 THE COURT: I don't know if they produced it or 23 24 25 not, but it's not in here. MR. STRAWBRIDGE: Our concern, and maybe it's not ripe now because I don't know what Harvard is ultimately 20 1 going to rely on as the case proceeds forward, but our 2 concern because it's an ongoing issue and there's a new 3 committee, and there's going to be a deposition at some point 4 in the next month or two about the activities of the 5 deposition, is that both in the depositions and the documents 6 that there's been a lack of transparency as to what the 7 committee is doing which presents a conundrum with respect to 8 how we are supposed to test the assertion that the 9 consideration of race neutral alternatives was, in fact, 10 done, serious and in good faith. 11 THE COURT: I understand why you want that. I may 12 even venture to say that you're likely entitled to it. It's 13 not in these documents. These documents predate the meeting 14 of the committee. 15 MR. STRAWBRIDGE: Okay. 16 THE COURT: They're not being withheld on privilege 17 18 at least the documents that you've identified to me. MR. STRAWBRIDGE: The concern that we would have, 19 for example, and I don't know what's in the documents 20 obviously. I'm not trying to have an argument. I just want 21 to make sure who is selected for the committee and how 22 someone goes about being selected for the committee may, in 23 fact, reflect upon seriousness and good faith. That is why 24 posting committee documents may not be sufficient always. 25 MR. LEE: Just to clarify, Your Honor, he's now 21 1 talking about the Smith committee which was recently 2 constituted. They know that who the members are the Smith 3 committee are the dean of the faculty of arts and sciences, 4 the dean of admissions, and the dean of the college. All 5 three of them who I think by title are serious people. They 6 know who they are. 7 There's going to be a deposition of the chair of 8 the committee, as Mr. Strawbridge said, in a month or two. 9 If they have considerations at that time, that's the time to 10 raise them. They have non privileged material. They'll be 11 able to ask the committee about its activities. Like the 12 other committees, some of them are privileged, some of them 13 are not. But there will be plenty to ask them about when 14 they get to the deposition. 15 MR. STRAWBRIDGE: I was actually not actually 16 referring to the Smith committee. I'm talking about the Ryan 17 committee. If you guys have no intention to rely on anything 18 the Ryan committee did to -- 19 THE COURT: I don't want to step on their claims or 20 privilege here. I will say this and I will not go any 21 further than this. There is no discussion in these documents 22 about how anybody is chosen for the committee with the 23 exception, I'm sure you know by now, that there was some 24 student representatives on the committee and there was some 25 discussion about who those students are going to be. 22 1 Other than that there is no conversation like that. 2 There were conversations largely about how the students -- 3 who the students were is privileged. There's no conversation 4 beyond that on who's to be on the committee. 5 6 7 MR. STRAWBRIDGE: Just one second. I'm sorry. That's all I have at this time. THE COURT: We're not going to do a big long 8 opinion on this, but we'll do something sufficient to have 9 something on the record for you. All right? 10 MR. LEE: With Your Honor's indulgence, can I raise 11 one unrelated issue? I don't think it requires any action. 12 At some point in time, we raised with 13 Mr. Strawbridge the question of whether in a case that's 14 going to be tried to Your Honor without a jury and in a case 15 where only injunctive relief is requested, no damages, 16 whether it made sense to put Your Honor and your staff and 17 the parties through summary judgment briefing. 18 This is a case by the time we finish with rebuttal 19 reports there's going to be about a thousand pages of reports 20 from experts going in both ways. It seems to me that going 21 directly to the trial without lots of paper and lots of 22 motions made some sense. We raised this with 23 Mr. Strawbridge. I think he has a different view. And we 24 understand if he does and Your Honor's schedule has summary 25 judgment that that may be what it is. 23 I think we would just ask Your Honor to give some 1 2 consideration to at some point adding to the schedule a trial 3 date so that we have some sense of when it will be. THE COURT: I have been sort of thinking about 4 5 summary judgment myself. I wasn't sure if the whole case 6 could be decided on summary judgment or this comes down to 7 experts needing to take the stand. What's your views on 8 that? 9 Is this going to be resolvable on summary judgment, 10 or -- the experts themselves, are those going to be factual 11 disputes that need to be -- 12 MR. LEE: This is a place where we disagree. So 13 I'll give you our view, Your Honor. My view is that it's 14 inconceivable that the entire case could be resolved on 15 summary judgment. It's probably very unlikely that the vast 16 majority of it would be resolved on summary judgment. And 17 there will be -- there are conflicting experts who are taking 18 the same data and coming to different conclusions. 19 So the examination and cross examinations will be 20 important. There are factual witnesses who will describe 21 this process to you. You've gotten a window into some of it, 22 but you're going to see it in some significant detail. 23 There's going to be a whole host of factual herbs. I think 24 it's really the combination as we thought about it of it 25 being jury waived. Your Honor could be the decider both 24 1 legally and factually. But also because it's just an 2 injunctive relief case. 3 So getting the trial closer in time to the evidence 4 rather than having it be way out from the time the evidence 5 has been generated made some sense to us. But I think from 6 our perspective, I think I can say that I think it's 7 inconceivable that the whole case would be resolved and we 8 wouldn't have to have a trial on some issues. I think it's 9 probably very very unlikely that a substantial majority would 10 get resolved on summary judgment. 11 MR. STRAWBRIDGE: Well, obviously we have a 12 different point of view on that. We do think that -- 13 14 THE COURT: I would hardly expect you to agree on anything at this point. 15 MR. STRAWBRIDGE: That's not entirely true. 16 THE COURT: You have not yet. I don't know why 17 18 we'd begin today. Go ahead. MR. STRAWBRIDGE: Let me indulge the Court and 19 start with something on which we agree, which is that it may 20 be useful at some point especially once we get through the 21 expert discovery phase to set a trial date at some point in 22 the future at least as a back up if there remains some issues 23 after summary judgment. But we do think that summary 24 judgment is going to be useful in this case to dispose of 25 some, if not all, of the claims. And we think that there's 25 1 support and we can make summary judgment arguments that would 2 potentially dispose of all of the claims. 3 I'll also just simply note that the parties have 4 built in dispositive motions into their motion practice which 5 did not stop my friends on the other side from filing their 6 dispositive motions a while ago. So I guess I'm less 7 surprised that they're now satisfied that there isn't a need 8 for further dispositive motions. But we think it will be 9 useful to the Court. We think it can narrow issues if not 10 completely resolve some of the claims if not all of the 11 claims. So we'd like to stick with the schedule as is. 12 THE COURT: Hold on. I'm trying to pull up a 13 scheduling order. My recollection is that summary judgment 14 motions are fully briefed at the end of this summer. 15 MS. ELLSWORTH: We have a copy. 16 MR. LEE: August 3, Your Honor. 17 THE COURT: Do you want to pass that up? My view 18 is it seems to me this is about all the experts at some 19 level, right? 20 21 MR. STRAWBRIDGE: Truly not for all of the claims in our view. 22 THE COURT: How many claims are left? 23 MR. STRAWBRIDGE: Four, I believe. 24 THE COURT: I thought it was two. Is it four? 25 MR. STRAWBRIDGE: There were six claims originally. 26 THE COURT: There were six. And we knocked out 1 2 two. 3 MR. LEE: Four is correct. 4 THE COURT: So there's four left. And what are the 5 four? 6 MR. STRAWBRIDGE: So there's a claim of invidious 7 discrimination. There's a claim of failure to achieve race 8 neutral practice. There's a claim of too much emphasis on 9 race. And there's a claim of inconsistency with Grutter. 10 I'm doing this off the top of my head. 11 THE COURT: I know. 12 MR. LEE: Your Honor, may I offer a suggestion? 13 THE COURT: What of those do you think can be 14 resolved as purely a legal matter? 15 MR. STRAWBRIDGE: All of them. 16 THE COURT: I just don't see that. 17 MR. STRAWBRIDGE: We're prepared to present the 18 motions. If the Court needs to take them under advisement 19 and then proceed to fact finding, that's fine. I'm not going 20 to stand here and condede that we won't achieve summary 21 judgment on all those claims. Certainly some of them I think 22 you can easily understand. Experts don't disagree, for 23 example, that at some level weight has been given to race. 24 There's an argument to be had as to what whether that level 25 of weight is consistent with what has been proved by the 27 1 2 Supreme Court. Whether or not Harvard has engaged in serious 3 considerations or race neutral alternatives in and of itself 4 may not be the subject of expert testimony or may not be the 5 subject of testimony that's -- 6 THE COURT: Rather than going through the entire 7 summary judgment process, which is going to be expensive and 8 time consuming, why couldn't I just hear the evidence and 9 then rule on those issues as a matter of law? 10 MR. STRAWBRIDGE: We think we have a right to file 11 summary judgment and we would like to submit it. We're happy 12 to stick to the current schedule and the Court can do with 13 the motions what it wants. We think it's important to 14 present these issues, and we intend to do so. 15 MR. LEE: Your Honor, I don't think any party has 16 the right to the file summary judgment motions. That's 17 completely at your discretion. It's your docket. Let me say 18 this: Take Mr. Strawbridge as an example. I can't think of 19 a good case that involves -- I was going to suggest this, 20 Your Honor. Maybe the thing for us to do is to meet and 21 confer and talk about the issues that he thinks -- they think 22 can get resolved on summary judgment, and we can say why we 23 don't think they can. 24 25 And this is a procedure that some other courts have followed, so this is just a suggestion. Maybe after we do 28 1 that, can we each submit a letter to you that's no more than 2 four pages that says what our position is on what can get 3 resolved on summary judgment and what can't? And then we can 4 come back and see Your Honor on the schedule if that makes 5 sense. 6 THE COURT: That's fine. I'm happy to have you do 7 that. In a case that's going to be tried to me, it seems 8 like I'm as well-positioned to make the summary judgment 9 ruling at the end of evidence as I am after the whole summary 10 judgment thing. The summary judgment motions, they're 11 expensive, they're time consuming. 12 In some ways I see it in this kind of case as 13 duplicative. It can be made as a matter of law. I'll make 14 it at the close of the presentation of the evidence. So I 15 feel like you're getting everything you would get out of a 16 summary judgment motion wrapped into a bench trial, and that 17 doing the summary judgment motions first is just expensive 18 and time consuming. But I'll hear you on it. 19 The schedule has expert discovery completed by 20 May 1 and dispositive motions by -- so really this could be 21 trial ready by May 1. I would love to try it next summer 22 because it's impossible to get a jury for a summer trial. So 23 I'd rather do a bench trial next summer. 24 25 MR. STRAWBRIDGE: I guess our view is this is the schedule that the parties agreed to. I don't know that we'd 29 1 be ready to go as of May 1. 2 THE COURT: Without minimizing my own importance, 3 which I always hate to do, I don't understand why you don't 4 want to get this case by me and onto its next place. Right? 5 I don't understand why you want it to linger here. 6 MR. STRAWBRIDGE: We certainly don't want it to 7 linger here, but we think that -- one thing summary judgment 8 can do, as you know, there's motions for partial summary 9 judgment. It can narrow the issues. It can limit the need 10 for testimony. It can help work these things out. I 11 understand they don't agree. 12 The parties agreed to a dispositive motion briefing 13 schedule. We're prepared to stick to that schedule and keep 14 the case moving to the extent the Court doesn't think it can 15 dispose of some or all of the claims in summary judgment. 16 This is or our position. 17 THE COURT: I put summary judgment in the schedule 18 to have it in the schedule. It doesn't mean there's always 19 going to be summary judgment motions filed. It's a 20 placeholder. If it's apparent that it's not going to change 21 the complexion of the trial, I don't see that it's worth the 22 exercise of summary judgment motions. 23 If it can significantly change the complexion of 24 the trial and cut out days or weeks of testimony, then okay, 25 that's something different. But why don't you all meet and 30 1 confer on that and we'll see where we are. This case looks 2 like absent summary judgment motions it will be ready for 3 trial by May 1 and we can try it in the summer and then have 4 it be on its way. Have important issues resolved in a more 5 timely manner because there's -- almost certainly it's going 6 to be delayed if I have to do the summary judgment motion. 7 There's just no way around it. And I have, just for your FYI, I have a 14-week 8 9 trial starting in January of '19. So you either get it tried 10 between now and basically January 1 of '19 or it's delayed 11 until, whatever, that spring. It seems like a long time when 12 this is a case that we know -- I will certainly share my 13 wisdom with you all. I just don't think it's going to be the 14 final say in this. So let's just get it going. MR. STRAWBRIDGE: Again I think I set forth our 15 16 position. We're happy to meet and confer and we can submit 17 written submissions on this down the road. 18 THE COURT: That's fine. If you're thinking about 19 a trial date, that's my schedule. I would very much like to 20 try it next summer. I can go as far as up until January, 21 right? 22 MR. LEE: Summer would be terrific. 23 THE COURT: Summer would be terrific. 24 MR. LEE: Summer would be terrific for us. 25 THE COURT: People vacation here. They like it 31 1 2 here. It's hot in Texas. MR. STRAWBRIDGE: Well, I live in Maine. I don't 3 vacation in Massachusetts in the summer. I understand the 4 Court's point. We'll come back to it. I do think that there 5 are issues that summary judgment is appropriate for. Why 6 don't we take it up with them and see if we can submit 7 something to the Court or not. We can circle back toward the 8 end of discovery. 9 THE COURT: Again I'm unencumbered by a lot of 10 that. It seems to me even if we can resolve a count or two, 11 it's not going to change the evidence. The evidence is going 12 to be what they did, right? The evidence of what they did 13 sort of goes to every count. Maybe your expert is going to 14 agree with their expert, but -- 15 MR. STRAWBRIDGE: Or the other way around. Or 16 maybe where the dispute is is ultimately not legally 17 material. The reality is a lot of these cases in the past, 18 if not all of them, have been resolved on summary judgment. 19 I think it would be useful in this case. I'm happy to stick 20 to the schedule. I'm happy to have the Court take it under 21 advisement or use it to influence what evidence the Court 22 actually wants to hear from at trial. 23 THE COURT: I'd have to do a summary judgment-type 24 opinion after the trial on those issues that are purely legal 25 issues. It's not apparent to me what issues are going to be 32 1 purely legal at this point. So why don't you two confer. 2 We'll come back to it. If we're going to have a trial, I'd 3 love to do it next summer. I don't have any significant 4 trials scheduled over the summer because it's so hard to get 5 a jury. 6 7 8 9 10 MR. LEE: We'll meet and confer. Maybe by a week from tomorrow, we can submit to Your Honor. THE COURT: We're not in a big trial hurry on it. If there was a trial as it stands right now, how long are you all thinking it would be? 11 MR. LEE: Two to three weeks, I think, Your Honor. 12 MR. STRAWBRIDGE: Honestly I have not given it much 13 thought. I don't think it would be any shorter than that. 14 MR. LEE: Your Honor's trial days now are -- 15 THE COURT: My preference is to try 10 to 4. I 16 will give you some say in that. I find that the 9:00 is 17 tough for the jurors to get in and park and everything else. 18 I tended to move it to 10. With just us, really whatever you 19 want. I do basically 10 to 4 and half day on Fridays. 20 MR. LEE: Two to three weeks could do it. 21 MR. STRAWBRIDGE: Maybe less if we narrow down some 22 of the issues. It's all premature at this point. Expert 23 reports are still not complete at this point. 24 25 MR. LEE: The plaintiff wanted to go slower than the defendant. 33 THE COURT: I thought this trial would take longer 1 2 than two to three weeks to try. Even if we knock out a bunch 3 of the issues, it's going to take me longer to knock them out 4 than it's going to be to actually do the trial. I'm unlikely 5 to have a summary judgment opinion out two to three weeks 6 after you all file them. We may as well just try it. MR. STRAWBRIDGE: Let's meet and confer and we'll 7 8 submit something. MR. LEE: Thank you, Your Honor. 9 THE COURT: Everybody says they want trials. Trial 10 11 lawyers. Trials are fun and interesting. Summary judgments 12 are less fun and less interesting. MR. STRAWBRIDGE: I think I've made our position 13 14 15 clear. THE COURT: You have. So whenever you want to -- 16 we don't have another status set, but if you all want to set 17 one after you get those submissions in -- I'm not going to 18 rush you. You're still in the middle of expert discovery, we 19 don't need to resolve this in the next week. If you want a 20 status on it or want to discuss that further. 21 MR. LEE: We'll work it out. 22 MR. STRAWBRIDGE: Okay. 23 MS. ELLSWORTH: Thank you, Your Honor. 24 THE CLERK: Court is adjourned. 25 (The Court adjourned at 4:33 p.m.) 34 1 - - - - - - - - - - - - 2 CERTIFICATION 3 4 I certify that the foregoing is a correct 5 transcript of the record of proceedings in the above-entitled 6 matter to the best of my skill and ability. 7 8 9 10 /s/ Joan M. Daly February 21, 2018 11 ______________________ ____________________ 12 Joan M. Daly, RMR, CRR Official Court Reporter Date 13 14 15 16 17 18 19 20 21 22 23 24 25

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