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

Filing 547

MOTION in Limine by President and Fellows of Harvard College.(Waxman, Seth)

UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF MASSACHUSETTS
BOSTON DIVISION
STUDENTS FOR FAIR ADMISSIONS, INC.,
Plaintiff,
Civil Action No. 1:14-cv-14176-ADB

v.
PRESIDENT AND FELLOWS OF HARVARD
COLLEGE (HARVARD CORPORATION),
Defendant.

HARVARD’S MOTIONS IN LIMINE

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I.

HARVARD’S MOTION IN LIMINE TO EXCLUDE EVIDENCE CONCERNING
ITS EARLY TWENTIETH-CENTURY ADMISSIONS PRACTICES
This Court has twice ruled that Harvard’s admissions practices in the first half of the

twentieth century—specifically, discrimination against Jewish applicants at that time—are
irrelevant to SFFA’s claims. See Dkt. 181 ¶ 6; Dkt. 193 at 15:17-17:18. Nevertheless, SFFA has
indicated that it will seek to introduce evidence concerning Harvard’s admissions practices from
nearly 100 years ago at the upcoming trial, and has included no fewer than a dozen documents on
its exhibit list dating from this period. SFFA’s focus on ancient history is an obvious attempt to
distract the Court from the dearth of evidence showing intentional discrimination in this case.
But SFFA should not be permitted to confuse the issues and waste the Court’s time by presenting
evidence that, as this Court has recognized, has nothing to do with its claims. In light of the
Court’s prior rulings and pursuant to Federal Rules of Evidence 402 and 403, Harvard
respectfully requests that the Court preclude SFFA from introducing this irrelevant evidence at
trial.1
A.

Legal Standard

Federal Rule of Evidence 401 states that evidence is relevant if it makes a fact “of
consequence” “more or less probable,” and under Rule 402 “[i]rrelevant evidence is not
admissible.” It is within a court’s discretion to “limit[] the scope of [a] bench trial to [relevant]
incidents.” Bissell v. United States, 321 F. App’x 549, 551 (9th Cir. 2008); see also, e.g.,
Hernandez v. Cook Cty. Sheriff's Office, 2016 WL 10821957, at *1 (N.D. Ill. May 25, 2016)
(excluding from bench trial evidence of 1980 consent decree because it was “so remote in time
and substance”); Abbott Labs. v. TorPharm, Inc., 2003 WL 22462614, at *15 (N.D. Ill. Oct. 29,

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This includes SFFA Exhibits P060, P061, P343, P348, P353, P491-P504, P557, and P560.

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2003) (finding plaintiff’s “argument regarding the relevance” of certain evidence “still applie[d]”
in bench trial and excluding irrelevant evidence).
Rule 403 enables courts to “exclude relevant evidence if its probative value is
substantially outweighed by a danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.” Courts presiding over bench trials routinely exercise their discretion to
exclude evidence that violates Rule 403. See, e.g., Keller v. United States, 38 F.3d 16, 32 n.10
(1st Cir. 1994) (affirming exclusion of evidence from a bench trial pursuant to Rule 403);
Ramos-Melendez v. Valdejully, 960 F.2d 4, 6 (1st Cir. 1992) (holding that it “was well within
[the district court’s] discretion under Fed. R. Evid. 403” to exclude evidence that would have
resulted in a significant focus on collateral issues from a bench trial); United States v. Foley, 871
F.2d 235, 238 (1st Cir. 1989) (upholding court’s exclusion of evidence in bench trial because,
among other reasons, “it would not have been an abuse of discretion to exclude the evidence
solely on the basis of the quoted language from Fed. R. Evid. 403” and “a court’s refusal to
introduce collateral issues at trial has been characterized by Holmes as a ‘concession to the
shortness of life’” (quoting Reeve v. Dennett, 11 N.E. 938, 944 (Mass. 1887)).
B.

Allegations Of Decades-Old Discrimination Have No Probative Value

Unable to find evidence of intentional discrimination within the present century, SFFA
reaches back nearly 100 years, arguing that Harvard’s admissions policies and practices in the
1920s are relevant to this case on the ground that a policy’s “historical background” may provide
information about whether the policy is intentionally discriminatory. See Dkt. 413 at 23-26
(quoting Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S.
252, 267 (1977)). But as the Court observed when it rejected SFFA’s request for discovery into
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Harvard’s treatment of Jewish applicants during the early twentieth century, that issue “is a red
herring.” Dkt. 193 at 17:8-12. “[U]nless historical evidence is reasonably contemporaneous
with the challenged decision, it has little probative value.” McCleskey v. Kemp, 481 U.S. 279,
298 n.20 (1987); see also, e.g., Watkins v. Angelone, 1998 WL 2861, at *6 n.3 (4th Cir. Jan 7,
1998) (per curiam) (actions of “local officials in the 1960s” were not “reasonably
contemporaneous” under McCleskey so as to “support a challenge to a 1998 jury”).
As the Court noted, the history that SFFA seeks to introduce “is old,” and there are
“many miles between the history and now.” Dkt. 193 at 15:23-24. Indeed, SFFA concedes, as it
must, that Harvard’s early twentieth-century admissions practices are “more distant than [the
evidence] in many cases in which history is used as an Arlington Heights factor.” Dkt. 413 at 25;
see also, e.g., Burton v. City of Belle Glade, 178 F.3d 1175, 1195 (11th Cir. 1999) (evidence of
discrimination that “ended almost twenty years before the decision at issue” and was “wholly
unconnected” was “far too remote and attenuated to be probative of any discriminatory
purpose”); Hall v. Holder, 117 F.3d 1222, 1226-27 (11th Cir. 1997) (rejecting reliance on 1912
legislation in challenge to voting practices); Laramore v. Ill. Sports Facilities, 1996 WL 153672,
at *12-13 (N.D. Ill. Apr. 1, 1996) (rejecting plaintiff’s assertion that racial discrimination
beginning in 1945 resulted in an intentionally discriminatory zoning decision in the 1980s
because, “given the change in the political realities, plaintiffs simply cannot rely on a past
climate of racial discrimination ... as evidence that [a municipal] decision was racially motivated
as well”).
Further, just as the Court predicted, Harvard’s early twentieth-century admissions
practices are “so old and so remote” that SFFA has been unable “to link [them] to what’s
happening now” in a way that would yield “probative evidence.” Dkt. 193 at 17:9-12. That is
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unsurprising, for no such link exists. The Dean of the Office of Admissions and Financial Aid,
William Fitzsimmons, testified that “the holistic admissions process” SFFA now challenges
“certainly is not like” the one SFFA seeks to interject into these proceedings. Dkt. 421-9 at
410:4-9. Because SFFA cannot connect the history it seeks to introduce to its current claims, the
Court should preclude the introduction of that evidence as irrelevant. See TBS Grp., LLC v. City
of Zion, Illinois, 2017 WL 5129008, at *7 (N.D. Ill. Nov. 6, 2017) (series of historical events
between 1982 and the early twenty-first century could not support a claim of intentional racial
discrimination because “invoking ‘historical background’ to prove race discrimination does not
necessarily mean stretching indefinitely back in time” and “[e]ven with the benefit of all
reasonable inferences …[plaintiff] does not connect the dots”).
SFFA claims that Harvard’s treatment of Jewish applicants in the early twentieth century
is the “original sin” that condemns all whole-person review of applicants, even a century later.
See Dkt. 413 at 23. But SFFA has not claimed that Harvard currently discriminates against
Jewish applicants, and its focus on long-repudiated admissions policies from almost 100 years
ago cannot conceal the absence of evidence showing intentional discrimination in this case. In
any event, “past discrimination cannot, in the manner of original sin, condemn” present conduct;
“[t]he ultimate question remains whether a discriminatory intent has been proved in a given
case.” City of Mobile v. Bolden, 446 U.S. 55, 74 (1980) (plurality opinion). In this case,
documents reflecting the treatment of Jewish applicants in the 1920s have no bearing on SFFA’s
claims of discrimination against Asian-American applicants today. This Court has already
recognized as much. See Dkt. 181 ¶ 6 (“It is not clear how prior instances of discrimination
against Jewish applicants in the 1920s, 30s, 40s, and 50s is relevant to the invidious

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discrimination claims in this case, which allege that Harvard is presently discriminating against
Asian-American applicants.”).
C.

Evidence About Harvard’s Twentieth-Century Admissions Practices Will
Result In Satellite Litigation, Waste Time, And Unfairly Prejudice Harvard

Even if evidence about Harvard’s decades-old admissions practices did have any
marginal probative value—which it does not—it would properly be excluded under Rule 403.
See Foley, 871 F.2d at 238. Rule 403 “has a role to play whether the case is to be tried to a jury
or to a judge.” Fed. Hous. Fin. Agency v. Nomura Holding Am., Inc., 2015 WL 685153, at *3
(S.D.N.Y. Feb. 18, 2015). Evidence is properly excluded under Rule 403 if it is “of limited
value at best and unduly confusing at worst,” United States v. Lupton, 620 F.3d 790, 800 (7th
Cir. 2010), or if it has “minimal probative value [that] would be substantially outweighed by the
prejudicial effect,” Dunn v. Marquette Transportation Co., 2017 WL 2910990, at *2 (E.D. La.
July 7, 2017). A court also may exercise its discretion to exclude evidence under Rule 403 if it
can “reasonably conclude that such evidence would not be helpful to the court, but would cause
undue delay and would waste time.” United States v. Sullivan, 575 F. App’x 793, 794 (9th Cir.
2014). The evidence that SFFA seeks to introduce does all of the above—it will confuse the
issues, cause undue delay, and cause Harvard unfair prejudice.
Allowing SFFA to introduce information about Harvard’s admissions practices from the
1920s will inevitably lead to satellite litigation as SFFA attempts to introduce unauthenticated
hearsay evidence about conduct that no living witnesses can corroborate or rebut. That would be
a needless waste of the Court’s time, particularly where the Court has already said the evidence
at issue is not probative of SFFA’s claims. Dkt. 181 ¶ 6; Dkt. 193 at 15:17-17:18.

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Furthermore, SFFA’s attempt to analogize ancient history to its current claims is unfairly
prejudicial to Harvard. SFFA’s accusations that Harvard previously discriminated against
Jewish applicants are inherently (and intentionally) inflammatory and serve no legitimate
purpose. See Figures v. Bd. of Pub. Utilities of City of Kansas City, Kan., 967 F.2d 357, 360-61
(10th Cir. 1992) (affirming district court’s exclusion of “anecdotal evidence of discrimination”
because plaintiff could not link comments to the conduct at issue and therefore they were “highly
prejudicial”) (quotation omitted). That is particularly true where SFFA has nothing to tie its
accusations about century-old conduct involving Jewish applicants to its current claims
concerning Asian Americans. See Jana-Rock Const., Inc. v. New York State Dep’t of Econ. Dev.,
438 F.3d 195, 212–13 (2d Cir. 2006) (evidence showing discrimination against “Hispanics in
general” did not answer “more particular question” of whether “Spanish persons suffer the same
kind and degree of discrimination”); Swiatek v. Bemis Co., 2011 WL 4753417, at *5-7 (D.N.J.
Oct. 7, 2011) (excluding evidence that defendant had history of discrimination against African
Americans where court had previously limited discovery on that topic and “the danger of unfair
prejudice to [defendant] greatly outweighs any probative value the introduction of the remote
evidence … would have”); supra at 2-3.
To ensure a fair trial based on the relevant facts—and to prevent SFFA from attempting
instead to try its case based on inflammatory and ancient history—the Court should preclude
SFFA from introducing evidence or argument regarding Harvard’s early twentieth-century
admissions practices.

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II.

HARVARD’S MOTION IN LIMINE TO PRECLUDE EVIDENCE OR
ARGUMENT REGARDING HARVARD’S INVOCATION OF THE ATTORNEYCLIENT PRIVILEGE
SFFA insinuates that Harvard’s invocations of the attorney-client privilege during

discovery in this case were improper and designed to shield evidence that would support SFFA’s
unfounded theories. This Court has already carefully assessed Harvard’s invocation of the
attorney-client privilege after full briefing and a lengthy in camera review. See Dkt. 383. The
Court should not permit SFFA to relitigate that issue at trial by introducing exhibits or evidence
about Harvard’s privilege assertions or arguing for negative inferences based on those
invocations.
SFFA has persistently attempted to manufacture arguments out of Harvard’s proper
invocation of the attorney-client privilege. For example, in its summary judgment filings SFFA
chides Harvard for having “refused to produce emails and documents,” and Harvard’s witnesses
for having “refused to answer questions . . . on grounds of attorney client privilege.” Dkt. 414
(Plaintiff’s Statement of Undisputed Material Facts (“SMF”)) ¶ 370. SFFA also gratuitously
laments that “[i]t is unknown what happened” at a meeting organized by Harvard’s general
counsel regarding “Fisher v. University of Texas” because “Harvard has asserted the attorneyclient privilege.” Dkt. 413 (Plaintiff’s Memorandum Of Reasons In Support Of Its Motion For
Summary Judgment) at 16 n.3; see also Dkt. 414 ¶ 535 (“[w]hat happened . . . remains a secret”
because of Harvard’s assertion of the privilege).
SFFA complains that notes of counsel from meetings of the Committee to Study RaceNeutral Alternatives “have been withheld as privileged,” and that Harvard withheld “most
documents relating to the Ryan Committee on attorney-client privilege grounds,” Dkt. 413 at 43;
see also Dkt. 414 ¶¶ 820-821, 836—and then accuses Harvard of using its attorneys “to cloak”
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the deliberations of its Committee to Study Race-Neutral Alternatives “with the attorney-client
privilege,” Dkt. 413 at 43, even though the Chair of that Committee was deposed and testified
about the Committee’s conclusions. And SFFA has previewed its intent to press these arguments
at trial, having included Harvard’s privilege logs on its Exhibit List.
SFFA has already challenged Harvard’s invocation of the attorney-client privilege and
lost. See Dkt. 383 (“Defendant has established that” several categories of documents including
“documents concerning . . . the race-conscious admissions committee . . . are privileged”). No
longer able to challenge the merits of Harvard’s proper invocation of the privilege, SFFA pivots,
suggesting instead that the mere assertion of the privilege proves that Harvard has something to
hide.
SFFA’s arguments are improper and foreclosed by law. “The court cannot draw adverse
inference from the proper assertion of an attorney-client privilege.” Astra Pharm. Prod., Inc. v.
Beckman Instruments, Inc., 1983 WL 51933, at *4 (D. Mass. Mar. 24, 1983), aff’d, 718 F.2d
1201 (1st Cir. 1983); Akamai Techs., Inc. v. Limelight Networks, Inc., 614 F. Supp. 2d 90, 110
n.20 (D. Mass. 2009) (“[Defendant] asserts that the court may draw a negative inference from
this invocation of attorney-client privilege. This is incorrect.”), rev’d on other grounds, 797 F.3d
1020 (Fed. Cir. 2015).
Indeed, “[i]f the assertion of attorney client privilege could produce an adverse inference
persons would be discouraged from seeking opinions, or lawyers would be discouraged from
giving honest opinions. Such a penalty for invocation of the privilege would have seriously
harmful consequences.” United States ex rel. Barko v. Halliburton Co., 241 F. Supp. 3d 37, 55
(D.D.C. 2017), aff’d, 709 F. App’x 23 (D.C. Cir. 2017) (internal quotation and citation omitted).
Accordingly, it is proper for this Court “to bar any adverse inference from defendant’s
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invocation of the attorney-client privilege.” Smith & Nephew, Inc. v. Interlace Med., Inc., 2012
WL 3560811, at *4 (D. Mass. Aug. 17, 2012).
Despite SFFA’s desire to fill its void of actual evidence with inferences, it cannot distort
Harvard’s appropriate invocation of the attorney-client privilege to Harvard’s detriment.
Harvard respectfully requests that SFFA be prohibited from introducing any evidence or
advancing any argument at trial related to Harvard’s assertion of the attorney-client privilege.

Dated: September 17, 2018

Respectfully submitted,
/s/ Seth P. Waxman
Seth P. Waxman (pro hac vice)
Paul R.Q. Wolfson (pro hac vice)
Danielle Conley (pro hac vice)
Brittany Amadi (pro hac vice)
Daniel Winik (pro hac vice)
WILMER CUTLER PICKERING
HALE AND DORR LLP
1875 Pennsylvania Ave. NW
Washington, D.C. 20006
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
William F. Lee (BBO #291960)
Felicia H. Ellsworth (BBO #665232)
Andrew S. Dulberg (BBO #675405)
Elizabeth Mooney (BBO #679522)
Sarah R. Frazier (BBO #681656)
WILMER CUTLER PICKERING
HALE AND DORR LLP
60 State Street
Boston, MA 02109
Tel: [phone]
Fax: [phone]
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[e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
Debo P. Adegbile (pro hac vice)
WILMER CUTLER PICKERING
HALE AND DORR LLP
7 World Trade Center
250 Greenwich Street
New York, NY 10007
Tel: [phone]
Fax: [phone]
[e-mail]
Counsel for Defendant President and
Fellows of Harvard College

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CERTIFICATE OF CONFERENCE
Pursuant to Local Rule 7.1(a), counsel for Harvard conferred with counsel for Plaintiff on
September 14, 2018 to attempt in good faith to resolve or narrow the issues presented herein.
/s/ Seth P.Waxman
Seth P. Waxman
CERTIFICATE OF SERVICE
I hereby certify that this document and attachments will be sent electronically to counsel
of record for SFFA.
/s/ Seth P. Waxman
Seth P. Waxman

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