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

Filing 43

Transcript of Status Conference held on April 30, 2015, 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: James Gibbons at [e-mail] Redaction Request due 6/9/2015. Redacted Transcript Deadline set for 6/19/2015. Release of Transcript Restriction set for 8/17/2015. (Scalfani, Deborah)

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UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

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*STUDENTS for FAIR ADMISSIONS, INC.,
Plaintiff
vs.

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*PRESIDENT and FELLOWS OF HARVARD
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COLLEGE, et al.
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Defendants
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CIVIL ACTION
No. 14-14176-ADB

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BEFORE THE HONORABLE ALLISON D. BURROUGHS
UNITED STATES DISTRICT JUDGE
STATUS CONFERENCE
April 30, 2015

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Courtroom No. 4
1 Courthouse Way
Boston, Massachusetts 02210

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JAMES P. GIBBONS, RPR/RMR
Official Court Reporter
1 Courthouse Way, Suite 7205
Boston, Massachusetts 02210
[e-mail]

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APPEARANCES:

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BURNS & LEVINSON, LLP, (By Paul M. Sanford, Esq.,
and Benjamin C. Caldwell, Esq.) One Citizens Plaza,
Suite 1100, Providence, Rhode Island 02903, on behalf
of Plaintiff
CONSOVOY McCARTHY, PLLC, (By William S. Consovoy,
Esq.) 3033 Wilson Blvd. Suite 700, Arlington, Virginia
22201, on behalf of Plaintiff
WILMER CUTLER PICKERING HALE and DORR, LLP,
(By Seth P. Waxman, Esq.) 1875 Pennsylvania Avenue, NW,
Washington, D.C. 20006, on behalf of Defendants
WILMER CUTLER PICKERING HALE and DORR, LLP,
(By Felicia H. Ellsworth, Esq.) 60 State Street, Boston,
Massachusetts 02109, on behalf of Defendants
HARVARD OFFICE OF THE GENERAL COUNSEL, (By Ara
Gershengorn, Esq.), Smith Campus Center, Suite 980, 1350
Massachusetts Avenue, Cambridge, Massachusetts
02138,
on behalf of Defendants

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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 No. 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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Will counsel identify themselves for the record.

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MR. SANFORD:

MR. CONSOVOY:

Good afternoon, your Honor.

Will

Consovoy for plaintiffs.

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Paul

Sanford for plaintiffs, Students for Fair Admissions.

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Good afternoon, your Honor.

MR. CALDWELL:

And Benjamin Caldwell, your Honor,

for the plaintiffs.

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MR. WAXMAN:

Good afternoon, your Honor.

Seth

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Waxman for the defendants.

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is to my right.

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university's General Counsel's Office, is to my left.

And Ara Gershengorn, who's in the

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THE COURT:

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MS. GERSHENGORN:

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THE COURT:

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My partner, Felicia Ellsworth,

Ms. Gershengorn I know.
Good afternoon, your Honor.

It's nice to see a familiar face out

there.

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So it is my hope to get as much done as we can today.

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I have every confidence that the collective brain power at

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those tables exceeds mine, so I am happy for whatever

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guidance and suggestions you have about how we can move this

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along as efficiently as possible.

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that I suspect will ultimately be decided above my pay

It is the sort of case

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level, but we will do everything we can to get it decided

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with as good and accurate a record as we can as quickly as

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we reasonably can.

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Let me run through my list, and then I am happy to have
you all run through your list.

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Filed this morning was a motion to intervene.

I have

not read it yet, other than to sort of skim it.

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Does anyone expect to weigh in on that?

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MR. SANFORD:

We plan to file our response to that

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within 14 days, your Honor.

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THE COURT:

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Okay.

you too?

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MR. WAXMAN:

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THE COURT:

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We will do the same thing.
That's fine.

I'll put that aside for

now.
The initial disclosures, it looks like, have been made,
correct?

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MR. WAXMAN:

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THE COURT:

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So I'll put that aside until --

Yes, your Honor, both sides.
Good.

I'm happy to hear that.

You've generally agreed to a discovery schedule on

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expert testimony, summary judgment motions, although the

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parties seem to have a dispute on how long a period leading

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up to that that should be.

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for 8 months and you all are asking for 15?

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MR. SANFORD:

I think that Harvard is asking

Yes, your Honor.

That's really the

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fundamental issue for today.

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THE COURT:

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Okay.

And then you all would like -- in part, this turns on

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the fact that you would like all the applications to Harvard

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over the last four years, and you all would rather do

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representative samplings of those applications.

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given any thought as to how that representative sampling

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would be done?

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MR. WAXMAN:

Have you

We have, your Honor, and I think for

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the purposes of talking about the admissions files, we need

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to distinguish between data, that is, the raw data sets of

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quantifiable information about the applications.

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Harvard has a full set of the data for the period that they

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want to cover for -- on quantifiable information, and we

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don't see any reason why there has to be some statistical

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sample of that.

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with certain personal identification factors, like name and

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address, redacted because they're irrelevant for purposes of

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the analysis.

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We have --

We can simply provide them the data set

And then the question, I think the dispute is, what

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about the actual raw admission folders, which are

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approximately 40 pages in length?

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suggesting discussing with them what some reasonable

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representative sample would be, recognizing that everything

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that's quantifiable out of that -- out of the -- you know,

And as to that we are

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the letters of recommendation, and the personal statements,

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which are highly, highly, personal and sensitive, what

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representative -- what would a representative sample be.

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THE COURT:

When you're talking about information

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that's quantifiable, you're talking about -- you are all

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welcome to sit if you're more comfortable.

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MR. WAXMAN:

This role reversal is very

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uncomfortable for me.

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a judge.

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I am used to standing when I talk to

You can stand or sit.

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THE COURT:

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uncomfortable, but I digress.

My law clerks told me this makes people

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On my very first day, I'm sharing a courtroom with

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another judge, I sat down in her chair, and it turned out to

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be a very slippery chair.

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(Laughter.)

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THE COURT:

So after the humiliation of my first

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day, I've become somewhat reticent about sitting in other

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people's chairs.

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I did sit in one yesterday.

I fell into a hole, which

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I sort of had to climb out of, because it was somebody

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else's.

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So now I'm just going to stand.
MR. WAXMAN:

Well, this isn't my own chair, either,

so I will stand also.
THE COURT:

Well, that is if you laughed, because

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when I actually fell to the floor, nobody laughed, and I

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realized that at this point in my life, no one is going to

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laugh if in I fall to the ground, which is unfortunate.

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MR. WAXMAN:

A very, very dear friend of mine was

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sworn in on Friday to the District Court bench, and we had a

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reception for him at which several retired judges spoke.

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And one of the retired judges said, There are two things

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that are going to change in your life now that you've become

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a United States District Judge:

No. 1, no one is going to

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laugh at you; and, No. 2, you will never know if any of your

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jokes are funny.

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THE COURT:

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MR. WAXMAN:

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THE COURT:

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school."

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Randy's swearing in?
Yes.
We were in the same "baby judge

ground either.

He probably wouldn't have laughed when I hit the

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MR. WAXMAN:

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THE COURT:

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I'm sure he wouldn't have.
I know.

So in terms of the quantifiable information, you're

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talking about GPA, test scores.

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like recommendation letters?

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in those?

Are you quantifying things

Do they get a number?

Is that

Like good ones get a "1"?

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MR. WAXMAN:

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THE COURT:

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MR. WAXMAN:

There are -What else is in there?
When folders are complete, the first

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several steps in the admission's process are to have one,

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two, or three individual readers of the file, and those

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readers will put numerical scores on a scale of 1 to 5,

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based on academic ability, personal characteristics,

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athletic ability, I think are the major ones.

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all in the database.

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THE COURT:

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MR. WAXMAN:

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THE COURT:

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For every applicant, admitted or not.
And you're willing to grow a database

Is there a way to correlate the data set with the
applications?
MR. WAXMAN:

Well, there is an absolute -- the data

set includes the name and the address and where the -THE COURT:

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MR. WAXMAN:

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For every applicant?

for everybody, and a representative sample for some?

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And that's

And you're not going to redact that?
We are going to redact that.

We're

proposing to redact that.
THE COURT:

So once you've redacted that, is there

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a way for them to look at the application and find it in the

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data set?

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MR. WAXMAN:

We can certainly do that for them.

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we can say, On this date on line 8,254 of the data set,

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here's the folder, the full folder, for that applicant.

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THE COURT:

Two questions:

Why is this not

sufficient, and I guess a corollary to that, What do you

So

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hope to get out of the paper file that's not available in

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that numerical file?

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MR. CONSOVOY:

Your Honor, I think there's more

going on in the file than is being led on here.

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For example, there are summary statements where there

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are comments made by people in the Admissions Office about

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the applicant, which are going to be central to this case.

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Names may be central.

For example, if an Asian

applicant has a non-Asian name or doesn't identify their

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race, are measures being taken to discover that, which

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there's been reporting on publicly.

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THE COURT:

Does the data set indicate ethnicity,

to the extent you have it?

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MR. WAXMAN:

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MR. CONSOVOY:

Yes, it does.
But if they -- the question is, When

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they don't have it, what do they do to figure it out?

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the name will be essential.

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And

So on the common application, you're not required to

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give your race.

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parents' nation of origin.

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Asian, and, so we want to know -- we think it's central to

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discovering whether there's invidious discrimination here,

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trying to match up what type of effort was undertaken to

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discover that person's race so they could then classify them

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on a racial basis.

You are, however, required to give your
And your name may not look

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The summary sheets, the comments from the alumni

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interviewers around the country who meet with these

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individual students, there may be comments in the file about

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that as well that won't be captured by the data set we're

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talking about here.

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And this is attempting to root out invidious

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discrimination.

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digging and rooting we have to do to root out that kind of

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behavior.

This is the kind of in-the-weeds, tough,

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And there is a statistical side of this case, there's

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no question, and we're happy to speak with them and try to

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work together collectively to figure out how to handle

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aggregate data, individualized data, and redacting, if

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necessary.

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don't think, once the protective order's in place, there's

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no basis for redacting at all under law, and we would want

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to be heard on that issue.

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Although I think you see from our papers we

THE COURT:

Again, this is very preliminary, and

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I'm happy to discuss this, and I expect this discussion will

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go on for some time today, if not beyond today.

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very disinclined to give you all of those application files,

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and I am disinclined to make them have to redact all of

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those admissions files.

But I am

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You make a good point on things like notes to the

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files, which is something different than, for example,

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personal essays, which I am disinclined to give you.
I understand you can make the argument that if somebody

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writes an essay about their family's trip from China, that

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could be instructive, but I'm willing to go with the idea

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that, unless you can dissuade my otherwise, if someone's

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written an essay about their family's trip from China to

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America, that that's reflected in other places in their

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application as well.

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MR. CONSOVOY:

I think -- I guess I can make two

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points, your Honor.

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premature.

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haven't asked for every file yet.

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asking for every file.

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some evidence is discovered in this case that might lead us

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in that direction, we'd want the opportunity to pursue it in

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this court.

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One is I think some of this is

We haven't submitted a document request yet.

We

We may not start by

But there may come a time where if

Second, it is a bit unusual that Harvard, in their own

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paper here, says their entire process is holistic, that

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everyone is a measure of every aspect of the application,

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and the essay is essential to it, but then when they say

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Well, here's what counts for admission, but you don't get

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to see the essays.

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position.

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THE COURT:

I don't see how they can take that

I guess what I don't understand is how

putting a case like this together you would use what's in

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the essays.
MR. CONSOVOY:

So imagine there are two students at

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a deposition and they say, We don't -- race is not the

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deciding factor for admission, and we hand them one

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application -- two applications in front of them and say,

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Explain to me how Student A was not admitted, who's

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Asian-American, and Student B, who is admitted, and is not

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Asian-American, why they got in.

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I promise you the essay will be central to the
deposition.
THE COURT:

I would rather sort out a way, if

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you -- and, again, I'm just thinking aloud here.

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disinclined to give you every application.

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starting from the position of wanting to figure out a way to

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give you enough to put your case together without having

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Harvard run to a stop while they redact all these

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applications.

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I am

So I would --

So if you come up with two students who are exactly the

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same and then you ask for the complete admissions file, and

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one's Asian and one's not, or you don't know who's what, and

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then you ask for the files on those, I think that's a

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different situation than asking for everybody's file as a

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broad survey matter.

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MR. CONSOVOY:

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THE COURT:

Sure.

And, again, I'm not inclined to resolve

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this today, but I need to decide whether or not discovery at

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8 months or 15 months, and sort of thinking through some of

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these issues.

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MR. CONSOVOY:

I completely understand.

I'm saying, I don't think it will be when two students

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are the same.

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different, and one got in.

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and GPAs and schools they went to, and that's when the issue

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is going to come up.

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It will be when two students are very
And, you know, in terms of SATs

But, secondly, in terms of the schedule, we're happy to

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pursue this in a way that doesn't ask the Court to rule on

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this in the first round of discovery.

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it's really the key factor anyway in whether it's an 8- or

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15-month schedule.

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many here, I think, are really what's driving it, and we

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think eight is unrealistic.

But we don't think

The depositions, and there needs to be

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MR. SANFORD:

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THE COURT:

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MR. SANFORD:

It can't be --

May I make a suggestion, your Honor?

Sure.
I think what the joint statement

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discloses pretty clearly is there are going to be some

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predicate fundamental discovery battles of the nature being

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discussed this morning.

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if their plan to do a statistical sampling is what the Court

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ultimately rules is allowed in discovery, that's going to

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drive discovery in one direction.

I would suggest to the Court that

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What we don't know, as we stand here today, is which

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direction.

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that there are 5.6 million pages of documents which,

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according to Harvard, would require 10 million redactions.

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Now, we don't agree with that position, but that

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But we do know, based on Harvard's admission,

position is what's driving the scope of discovery.

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We have indicated to Harvard we are willing to work

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with them on a protective order, on a confidentiality order,

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and we will also work out FERPA privacy and confidentiality

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issues with them, because 94 percent of these applicants are

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not accepted to Harvard.

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the FERPA into one basket, 94 percent of those.

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So that puts a large majority of

Subsequent to the filing of that joint statement, we

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have also now in the last 24 hours had the Lawyers'

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Committee for Civil Rights file a motion to intervene.

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We don't know, as we stand here today, if that

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intervention motion will or will not be granted.

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is granted, it will be yet another party in this case, which

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will increase the number of admitted attorneys to about 11

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or 12 from five different jurisdictions all seeking to

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coordinate and mesh schedules for depositions under a

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proposed eight-month plan.

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knows that's simply not workable.

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But if it

I think everybody in the room
Even Harvard knows that.

So what I would suggest, your Honor, is let's pick a
schedule that gives us a reasonable time period to conduct

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the discovery at the rate we determine appropriate, in the

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sequence we determine appropriate, mindful and sensitive to

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the schedules of the Harvard admissions officers.

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Our proposed schedule is more sensitive to their

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schedules because it allows discovery beyond the next

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admission cycle, rather than trying to expedite broad,

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sweeping discovery in a short eight-month window with

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attorneys from 11 different entries.

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And if the intervenor is allowed into this case, what

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they did not say in their papers to the Court, but what they

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have said to us in writing, is that they intend to

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participate in fact discovery, oral argument, briefing, and

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expert discovery.

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additional two to four experts, approximately, to the case.

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So right away that could add an

THE COURT:

When you guys address their motion to

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intervene, is there -- can you also think about whether

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there is some way to let them participate short of

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intervention, sort of an amicus kind of role?

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MR. SANFORD:

We will address that in our response

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within 14 days, your Honor, because, quite frankly, I'm not

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really sure which side of the case the proposed intervenor

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is on.

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in support of Harvard's policies, to the extent they agree

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with Harvard's policies, but they don't want them to do the

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legacy admissions.

On the one hand they say they want to be a defendant

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So that's going to require us to work through issues on

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our end, but I think it's clear that the landscape in this

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case is fraught with potential for discovery disputes that

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counsel are not able to work through at some point in the

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future.

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So, for example, I would suggest if we were to go with

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an eight-month discovery schedule, all we're doing is

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setting ourselves up for motions for extension, and a delay

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in the production of quantitative data, as well as

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underlying files, to the extent they are discoverable.
If we have a 15-month cycle, as I have suggested is a

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practical reality, given the potential number of

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depositions, which even Harvard concedes is certainly going

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to be more than ten -- Harvard has conceded in the joint

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statement that they would like to limit it to ten for their

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own employees, but non-parties and experts don't count

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against the deposition limit of ten.

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We also are suggesting from the outset, in an effort to

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be forthright, that we believe this is the type of case

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which is going to require more than the presumptive limit of

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25 interrogatories and 25 requests for admissions.

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this case, from a statistical standpoint, might cry out for

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a significant number of requests for admissions if Harvard

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is unwilling to stipulate to a lot of the data.

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In fact,

So in coming up with the 8 and 15 months, I think each

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side made a good-faith effort, but I would suggest that 15

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months reflects the practical realities of these discovery

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disputes that are going to play out over the next, probably,

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two to six months, which means depositions probably won't

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even begin for five or six months.

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would be appropriate to give Harvard the opportunity to jam

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the plaintiff on discovery by delaying production of

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documents, saying it's going to take them a long time to

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redact documents, and thereby depriving our experts of the

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opportunity to review these documents until the end of the

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discovery cycle.

And I don't think it

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So 15 months gives us what we need to proceed at a

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reasonable pace, mindful of the number of attorneys, and it

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gives Harvard some sensitivity and flexibility on their

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admissions officers' schedule.

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THE COURT:

I'm not going to give you 15 months,

but I am going to give you more than eight.
I think that the longer the discovery schedule is, the

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more time there is to have discovery disputes, and I think

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that while whole buildings can be built in a year, you can

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get a case ready for trial, summary judgment, or something

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close to that.

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we will talk about it as it comes, but I am not going to set

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a 15-month schedule because it is my experience that things

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expand to fill the time allotted, and I would rather hold

If it turns out that we had need extensions,

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you on a tighter schedule than trying to keep you guessing

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about whether or not I'm going to grant your continuances or

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not.

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MR. WAXMAN:

Just a couple of things I thought I

might respond to.
THE COURT:

Focus on 10 or 12 months and which you

would prefer.

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MR. WAXMAN:

Ten.

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THE COURT:

Twelve?

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MR. SANFORD:

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MR. WAXMAN:

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Twelve.
I do -- just a couple of things.

First of all, you know, in terms of counsel's

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speculation about, Gee, we don't know how they really figure

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out what the race is, I mean, the discovery period is open.

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They can -- I don't have to tell them how to practice law.

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They notice a 30(b)(6) deposition and identify some topics.

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And they're talking about being jammed at the end of

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the discovery period on the basis of the depositions.

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want to come to the limits on the specific discovery

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applications and suggest why, as a going-in matter, the

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presumptive limits in the local rules ought to apply absent

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a showing that it shouldn't.

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terms of depositions about essentially -- Harvard is a large

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place, no question.

I do

I mean, we are talking here in

It's not as large as the University of

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Michigan, but it's a large place.

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Office of 40 people.

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let's say there's some discrimination suit that's brought

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against, you know, the IBM R&D unit.

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it.

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case like that, no judge would stand for the proposition

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that there are 40 people here, and, therefore, we need 40

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depositions.

It has an Admissions

So this is -- for these purposes,

It's got 40 people in

In a case like that, in the ordinary run-of-the-mill

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And I think it should be incumbent upon them, once we

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see what the requests are, for them to come forward to us.

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Maybe we will agree.

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or to the magistrate.

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depositions.

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they want.

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they're paid to do and rule on that.

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If not, we can submit it to your Honor
They want X number of more

We don't think that's necessary.

Here's who

And a judge or magistrate judge will do what

And the same thing for the request for admissions.

And

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I would suggest, as a going-in matter, a discovery cutoff.

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I do think that it's important to hold the parties' feet to

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the fire.

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the next admission cycle.

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focused on an Admissions Office that works very hard,

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particularly in certain times of the year, and extending

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this longer is not, frankly, helpful to us.

They say lively, Well, we should go beyond even

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THE COURT:

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MR. WAXMAN:

This is to be litigation that is

Is there -I also just wanted to say I continue

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to be perplexed by counsel's repeated reference to the

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number of jurisdictions that counsel of record in this case

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are in.

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I think, by their tally, we represent three of those

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jurisdictions, because I work in D.C., my partner works in

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New York, and Harvard is here.

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discovery -- you know, whatever deadlines are necessary.

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It's not that hard, frankly, to get here from New York or

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Boston.

10

I don't see how that counts one way or the other.

THE COURT:

We will meet whatever

It may be helpful, but I don't

11

generally adjust my schedules based upon whether or not

12

there's out-of-town lawyers or not.

13

choice of the parties about out-of-town.

14

participate by phone, if that's easier.

15

schedules are the same for in-town or out-of-town lawyers.

16

I will make reasonable accommodations by not trying to

17

schedule things early in the morning or late in the

18

afternoon so that you can get in or out to where you're

19

going, but that's sort of where I draw the line on that.

20

Does it make a difference -- I'm not a fan of

21

bifurcation, but I'm just trying to think this through.

22

it helpful if you bifurcate liability and remedy?

23

most cases there's enough spillover between liability and

24

remedy that it turns out not to be worth it, and there's all

25

sorts of disputes about which side of the line in

I view that to be a
You can
But otherwise my

Is

I find in

21

1

particular, but in this case would bifurcating remedy make a

2

difference to anyone?

3

MR. SANFORD:

Bifurcation is not appropriate in

4

this case.

5

proposed along the outlines of liability and remedy, what

6

you're going to do is create a built-in dispute at

7

depositions over whether that's a permissible question or

8

not.

9

Let's --

10
11
12

In fact, if this were bifurcated, as Harvard has

THE COURT:

agreement between the parties that it made sense.
Mr. Waxman, you raised the issue of standing.

13

MR. WAXMAN:

14

THE COURT:

15

jurisdiction.

16

thing?

17
18

I wouldn't do it unless there was

Yes, your Honor.
And also, I think, subject matter

I don't know if you mean those to be the same

Can you flesh those out for me?
MR. WAXMAN:

Well, we haven't moved to dismiss, as

your Honor has undoubtedly noticed --

19

THE COURT:

20

MR. WAXMAN:

Right.
-- because we think we do need to take

21

some discovery in order to ascertain whether we have

22

dispositive motions in this case.

23

initial round of discovery, which we will serve very

24

promptly, will go to the nature of individual standing in

25

this case.

And, you know, our

22

1

I do want to note that unlike all the other cases in

2

this line; i.e., Bakke, Grutter, Bollinger, Hopwood, there

3

are named individuals as parties.

4

In this case, not only do we not have a named

5

individual as a party, we don't have an individual named as

6

a complainant in the case.

7

a priori decision about whether we have a motion to dismiss

8

either under 12(b)(1) or 12(b)(6), and we would purport to

9

take discovery on this.

So it's sort of hard to make an

What we have is a plaintiff that

10

was created for the avowed and exclusive reason of suing

11

Harvard, and on its face that doesn't appear like it should

12

establish standing, but it seems pointless to us to burden

13

the Court with a dispositive motion before we have the real

14

facts.

15
16

MR. CONSOVOY:

Your Honor, may I respond briefly?

We're happy to have discovery on this issue.

It's what

17

we expected, and we are happy to share with him about our

18

organization, which has sued not only Harvard but North

19

Carolina as well, and may be bringing other cases as well,

20

no different than the ACLU and NAACP or any other litigating

21

organization.

22

Harvard just happens to be one of the first.

Mr. Waxman left out a case called Parents Involved from

23

the Supreme Court, which involved an organizational

24

plaintiff, just like ours, who had students as members of

25

the organization.

This is a very typical way litigation

23

1

proceeds.

2

they'll find it's a regular organization that meets all the

3

qualifications, and I doubt you will entertain a motion on

4

this, but we don't see an issue here.

5
6
7

But we're happy to have discovery.

THE COURT:

I think

In terms of a protective order, I'm

happy to basically sign whatever protective order you want.
Probably a personal peccadillo, but I'd make sure on

8

the protective order you've thought through the in-court

9

issues, trial, motion practices, etc.

I have my own

10

standard language that I add if you don't think to add it

11

yourself, but mine is pretty broad-based, giving me

12

basically complete discretion to do whatever I want during a

13

hearing or trial.

14

language, but if you want to parse it a little more finely

15

than that, add your own language.

16
17
18

So if that's fine with you, I'll add the

So I think what I'll do is wait for your briefing on
the motion to intervene.
We will set a schedule, probably setting discovery at

19

somewhere between 10 or 12 months, maybe 11, and I think

20

we'll have you in every few months, at least by telephone,

21

to make sure we stay on track.

22
23
24
25

Is there anything else we can accomplish today?
MR. SANFORD:

One housekeeping detail, if I may,

your Honor.
As I alluded to earlier, in our joint statement Harvard

24

1

had proposed that the ten-deposition limit should be the

2

presumptive limit for party depositions, but that

3

depositions of non-party witnesses, including experts, need

4

not count towards the ten-deposition limit.

5

I understood Mr. Waxman to be saying something

6

completely different in court today.

7

just confirm that we are, in fact, honoring Harvard's

8

representation in the joint statement.

9

THE COURT:

So I would like to

I thought that made sense.

I didn't

10

think I heard you say anything inconsistent with that today,

11

but you can clarify.

12

MR. WAXMAN:

We are happy -- what I believe we said

13

in the joint statement is we are certainly willing to

14

accommodate their requests.

15

prefers it to limit -- to apply the ten-deposition limit to

16

Harvard employees and officers, if your Honor says, Look, on

17

a notional basis we should simply apply the presumptive

18

limits of Local Rule 26, then that's fine with us, too.

19

otherwise we're prepared to live with ten Harvard

20

depositions.

21

THE COURT:

If your Honor, you know,

But

I think that makes sense, just given

22

the nature of the case.

23

that.

24

sort of end up -- how many depositions you want to take, how

25

many you want to take -- and then revisit it.

But if you want, I can hold off on

You can get started with discovery and see where we

25

1
2

It actually sounded like a reasonable position to me.
MR. SANFORD:

I must be must misunderstanding,

3

because I am hearing two different proposals, one in court

4

today and one in the papers in the joint statement.

5

On page 17 of the joint statement, Harvard specifically

6

stated, quote, "Harvard proposes that the ten (10)

7

deposition limit should be the presumptive limit for party

8

depositions, absent agreement of the parties or order of the

9

Court, but that depositions of non-party witnesses,

10

(including expert witnesses) need not count towards Local

11

Rule 26.1's ten (10) deposition limit," end quote.

12

That, I think, makes more sense at this stage of the

13

proceeding.

14

find that we need to exceed the ten-deposition limit for

15

Harvard, we will come back to your Honor and request

16

permission, if Harvard was unwilling to stipulate to that.

17
18
19
20

And if, as we get further into discovery, we

THE COURT:

That's what I read, and that's what I

thought he said today.
Are you saying something different today?
MR. WAXMAN:

No.

We are prepared to either live

21

with the presumptive limit in the rule or to extend the

22

presumptive limit to ten Harvard.

23

We are, frankly, quite concerned by, you know, with

24

certain aspects of their initial disclosures and in the

25

joint statement where they reference, for example, well,

26

1

there are regional interviewers.

2

who conduct interviews.

3
4

THE COURT:

There are 15,000 alumni

These are not Harvard employees.

All those people are not being deposed.

(Laughter.)

5

MR. WAXMAN:

6

THE COURT:

Okay.
So let's start with -- we'll start with

7

a ten-deposition limit for Harvard people.

8

experts and non-parties don't count toward that ten, but if

9

anybody feels anybody is trying to depose excessive numbers

10
11

Depositions of

of people outside of ten, come back, okay?
I'm going to have you in regularly because, well, two

12

reasons.

13

of hand; but, second of all, I really -- I don't want

14

discovery disputes to hold this up.

15

know, you're at a deposition and you have a discovery

16

dispute, pick up the phone.

17

can handle in a page or two, fax it over.

18

five- or ten-page motion, send it over.

19

moving.

20

magistrate.

21

quickly, because I am a big believer in "Justice delayed is

22

justice denied" and in keeping these things moving.

23

do my part of it, but you guys -- I'm not going to be happy

24

about people walking out of depositions or recessing them

25

because there's a dispute.

First of all, I don't want this to sort of get out

So if you have -- you

If you have something that you
If you need a

We will keep things

I am not referring the discovery disputes to the
We'll chug through them.

And we'll do it

I will

Just pick up the phone and call,

27

1
2

and we'll deal with it that way.
Anything else?

3
4
5

MR. SANFORD:

One other housekeeping detail, if I

may, your Honor.
Mr. Waxman brought up the subject of initial

6

disclosures, and I'm glad he did, because we had some issues

7

with Harvard's initial disclosures.

8

What we have, your Honor, are basically a listing of

9

six or seven names, which is fine, but then we have at least

10

two, if not three, very broad, catch-all categories with not

11

a single name of a Harvard employee identified.

12

THE COURT:

13

MR. SANFORD:

Give me an example.
"Representatives from the Office of

14

Admissions."

15

employees.

16

defense, it should be disclosed.

17
18

Not a single name listed.

They're Harvard

If they plan to reply on them for claim or

"A representative from the Office and Institutional
Research.

19

"Information pertaining to admissions statistics."

20

Not a single name.

21

statistical sampling?

22

Yet they're proposing to give us a

detail.

23

THE COURT:

24

MR. WAXMAN:

25

I think we are entitled to more

Can you give him a name?
Well, in our -- first of all, they

have exactly the same categories in their list without names

28

1
2

attached.
What we have done is we have specifically identified

3

the Dean of Admissions, the Director of Admissions, and two

4

employees in the Admissions Office.

5

the spirit of initial disclosures, we have also said that

6

there may be other people in the Admissions Office -- I have

7

not interviewed all of them -- who may also independently

8

have admissible evidence that we would use in our case.

9

So as to comply with

When they serve us with their discovery, whether it's a

10

30(b)(6) deposition or an interrogatory, we can provide

11

that.

12

who the Rule 26(a)(1)(A)(i) disclosures are of

13

identifying -- we've identified the particular people that

14

we know for sure have information that we will use in our

15

case, as the rule requires.

16

provide as much information as possible, on April 30, before

17

discovery requests, have also pointed out that we have

18

custodians of statistical information, and we have other

19

people in the Admissions Office that we may call.

20

We are under no obligation for purposes of fronting

THE COURT:

And we have, in order to

When you talk about this statistics

21

file that has the numerical statistics for every

22

application, how is that put together?

23

responsible for that?

24

MR. WAXMAN:

25

THE COURT:

Is someone

Yes.
Do they have that name?

29

1

MR. WAXMAN:

2

MR. SANFORD:

Yes, they do.

It's Elizabeth Yong.

Elizabeth Yong or another

3

representative from the Admissions Office.

4

admissions officer, according to their initial disclosures.

5

So my concern, your Honor, is there are two broad,

6

sweeping categories, if not three, that you can drive a

7

truck through, and we have no clue who they plan to call to

8

rely on for claim or defense.

9

She is a former

All I'm asking is some reciprocity to what we gave,

10

which was we identified 58 specific people with title,

11

address, and phone, in our initial disclosures, as is

12

required.

13

standards under the rule.

14

I would just like to see Harvard held to the same

THE COURT:

I'm sure he would be happy to give you

15

258 people, but I'm not sure how helpful you would find that

16

at the end of the day.

17

MR. WAXMAN:

The couple of categories that we've

18

identified without a name are replicated almost identically

19

in categorical designations without names, and they have

20

several more in theirs.

21

know, this is, without question, the most that is required

22

in order to fully allow the parties to practice law the way

23

they're supposed to.

24
25

THE COURT:
at Harvard?

And it's April 30.

I mean, you

Is it true that Mr. Yong is no longer

30

1

MR. WAXMAN:

She is at Harvard, but she is retiring

2

at some point, and her -- she will be replaced by somebody

3

who --

4

THE COURT:

5

MR. WAXMAN:

6
7

Has she yet been replaced?
No.

She is still an employee at Harvard, so far as I know,
and will be for several months.

8

THE COURT:

9

MR. WAXMAN:

10

THE COURT:

11

MR. SANFORD:

And still responsible?
Still responsible.
Great.
For that category, that may be

12

acceptable, at least we have a name, but for two other

13

categories --

14

THE COURT:

15

MR. SANFORD:

What's the next category?
The next category, according to them,

16

the name is "Representatives from the Office of Admissions,"

17

and the subject of discoverable information is quite broad.

18

They list "Information pertaining to Harvard's recruitment,

19

admissions policy and practices."

20
21
22
23
24
25

We couldn't take a deposition based on that -THE COURT:

They gave you the name and the contact

information for the head of admission, correct?
MR. SANFORD:

Yes.

But this is a broad catch-all for the other 39
employees of the Admissions Office.

I'm just trying to

31

1

avoid getting ambushed down the road, and I would like to

2

have the opportunity to take the deposition of a known

3

individual.

4

The second category --

5

THE COURT:

I'm guessing what he's saying is that

6

you have the head of admissions and then you have everybody

7

else.

8
9

MR. WAXMAN:

You have more than the head of

admissions.

10

We've got Grace Cheng, admissions officer.

11

Sally Donahue, director of the financial aid part of

12

the admission office.

13

William Fitzsimmons, the Dean of Admissions.

14

Marlyn McGrath Lewis, the Director of Admissions.

15

Elizabeth Yong, the admissions officer who has

16
17
18
19

information regarding the database and other things.
THE COURT:

Is there someone who is responsible for

running the alumni interviewers?
MR. WAXMAN:

I don't think there is a person who's

20

responsible for running the alumni interviewers, but, I

21

mean, they will -- when they take a deposition, they will

22

understand how this process works.

23

Harvard admissions process, the 37,000 applications are

24

divided into regional dockets.

25

committee of admissions officers who work on it.

But, you know, the

Each regional docket has a
There are

32

1

alumni who reside all across the country, therefore --

2

THE COURT:

3

MR. WAXMAN:

4

THE COURT:

5

How many regions are there?
I believe 20.
Is there one admission officer

responsible for each of those 20 regions?

6

MR. WAXMAN:

No.

Each region has a subcommittee of

7

the admissions officers who consider in the first tranche --

8

who will read the applications from those files and who meet

9

as an initial subcommittee to discuss those applications.

10

And I'm not sure -- I believe that each admissions -- each

11

docket subcommittee has a chair, someone who will sort of

12

run the multi-day meetings that occur.

13

is any title to it, and I am also not sure that one person

14

sticks with, you know, Northern New England every year.

15

I am not sure there

But, you know, Ms. Lewis or Dean Fitzsimmons or the

16

other individuals named could easily provide that

17

information, as could a 30(b)(6) representative.

18
19

THE COURT:

That's fine.

What I want to make sure is that you're not missing --

20

like if there's regional chairs, that he could then figure

21

out who to talk to about each region, or if you have someone

22

that coordinates alumni, there's some broad categories that

23

you can give him so he doesn't have to depose 40 people to

24

find out who is responsible for what, I think that would be

25

helpful.

33

1

MR. WAXMAN:

Yup, and that's why, I mean, they can

2

choose to do it however they want, but I would think if they

3

identified five topics, that they'd want a 30(b)(6) witness

4

to testify about, that would be the most efficient way to do

5

it, or an interrogatory that simply says, you know, How are

6

these arranged and is there a regional --

7
8

THE COURT:

My point is is that sooner or later he

is going to get that information.

9

MR. WAXMAN:

10

THE COURT:

Of course.
To the extent you have that some place,

11

in a chart or whatever, that says this is the regional

12

committees, and this is the chair of that regional

13

committee, that might just expedite things a little bit.

14

We're not talking about information that he is not going to

15

be able to get, and I don't want to be here with him saying

16

he had to waste three of his ten deposition to get stuff

17

that you could have easily provided him with a couple of

18

charts.

19

MR. WAXMAN:

Your Honor, I am not in any way

20

fighting that instinct or that mandate from the Court.

21

not suggesting, you know, we're going to make you use up

22

your ten deposition to get in the same zip code as this

23

basic information.

24
25

I am

I don't know that we actually have -- that Harvard
actually has a chart that shows it.

If Harvard actually has

34

1

a chart made up that shows it, that's fine.

2

THE COURT:

Well, I think it would be helpful, to

3

the extent that there is some sort of documentation within

4

the Admissions Office about who is responsible for what, if

5

he could get a copy of that, that might move this along.

6

MR. WAXMAN:

There may very well be an organization

7

chart for the Admissions Office, which, if there is, we're

8

obviously very happy to produce.

9

THE COURT:

I think that would save everybody some

10

time, and it's not information that they're not going to

11

have sooner rather than later, and maybe they'll get it

12

sooner.

13
14
15

MR. SANFORD:
Honor.

That would be very helpful.

The second category --

16

THE COURT:

17

MR. SANFORD:

18

I apprecaite Mr. Waxman's offer, your

I think we're on the third.
Truly the third, but it's outside the

Admissions Office.

19

They have identified a representative from the Office

20

of Institutional Research, and the subject of discoverable

21

information is information pertaining to admissions

22

statistics, which, in some ways, is the heart of this case.

23

But they don't name a witness.

24

THE COURT:

25

MR. WAXMAN:

I thought that's what Ms. Yong did.
No.

She is an employee of the

35

1

Admissions Office.

2

essentially does, you know, statistical and other

3

institutional research on any topic that the university

4

needs.

5

we may call, or someone in that office may have access to a

6

data set or data sets.

7

independently of admissions, but --

8
9

Harvard also has an office that

And we've indicated that there may be -- you know,

THE COURT:

I don't think that exists

So you're saying you don't know of

anything that resides there that would be relevant to this

10

case, but that there may be information there, and, if there

11

is, you will make someone from that office available to

12

provide that information?

13

MR. WAXMAN:

14

THE COURT:

15

MR. WAXMAN:

Absolutely.
Okay.
And I will say, I don't think it would

16

be an appropriate use of the Court's time to go through

17

their unnamed categories and complain about the fact that

18

although we haven't served any discovery yet, they haven't

19

named somebody.

20

going to do something?

21

consultants that they've identified categorically?

22

doesn't seem to me that that's the point of a Rule 26(b)

23

conference.

24
25

Who is it from the Princeton Board that's

THE COURT:

Who it from unnamed outside
It

I'm not going to go through all of

them, but to the extent there are things I can quickly

36

1

resolve here, I assure you it would be a good use of my

2

time, rather than waiting for you to brief it, and you to

3

brief it, and them to brief it, and then reading it all and

4

then deciding the issue.

5

MR. WAXMAN:

I mean, there's nothing -- we will

6

serve our discovery requests, and to the extent we don't get

7

the information we feel we're clearly entitled to, we will

8

be here.

9

THE COURT:

10

MR. WAXMAN:

Call or fax away.
We will call your Honor's offer and

11

either call you, write to you in letter, or send you a very

12

short brief.

13

resolved, at least crystalized for purposes of decision.

14
15
16
17

But I think a lot of this stuff can be, if not

THE COURT:

disclosures that we can close out today?
MR. SANFORD:

I don't believe so, your Honor.

That

was very helpful.

18

THE COURT:

19

MR. WAXMAN:

20

Is there anything else with the initial

How about from your side, Mr. Waxman?
I don't think so either.

I guess we will negotiate the terms of a protective

21

order, and if we have disputes about whether the protective

22

order is sufficiently protective, we will crystallize them

23

and bring them to your Honor.

24
25

We certainly are going to need, presumably in the same
vein as we will produce an organization chart for the

37

1

Admissions Office if we need it, the names of their

2

plaintiffs, that is, the people that they haven't named or

3

identified as to who are victimized by the alleged

4

practices.

5

THE COURT:

They are not in the complaint.

I am

6

sure there is good and sufficient reason for that, but

7

particularly the people that were not admitted to Harvard,

8

they're going to be entitled to that to go back to those

9

application files and be able to take a look at them.

10

MR. CONSOVOY:

We understand our disclosure

11

obligations, and as soon as a protective order is in place,

12

we're happy to give it.

13

first.

14
15
16
17

THE COURT:

We just want the protective order

Anything else I can help anyone with

today?
(Whereupon, counsel shake heads in the negative.)
THE COURT:

We'll put out a scheduling order.

We

18

will have you back in the not-too-distant future, and we

19

will try to get this moved along for you as clearly and

20

expeditiously as we can.

21

MR. SANFORD:

22

discovery now open --

23

THE COURT:

24

MR. SANFORD:

25

on the intervention?

Your Honor, do you want us to deem

Yes.
-- or should we wait until the ruling
Because if we start undertaking

38

1

discovery in advance of their participation, after they have

2

indicated they intend to participate, I don't want to cause

3

a problem down the road.

4

THE COURT:

My suggestion is is that you start

5

exchanging written discovery, and if you are both going to

6

respond in two weeks, you will have a ruling in three weeks,

7

and they can get caught up, but let's get it going.

8

MR. WAXMAN:

9

THE COURT:

Thank you, all.

10

THE CLERK:

All rise.

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

Thank you, your Honor.

(Proceedings adjourned.)

39

C E R T I F I C A T E

I, James P. Gibbons, 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/James P. Gibbons
James P. Gibbons

May 19, 2015

JAMES P. GIBBONS, CSR, RPR, RMR
Official Court Reporter
1 Courthouse Way, Suite 7205
Boston, Massachusetts 02210
[e-mail]