Students for Fair Admissions, Inc. v. President and Fellows of Harvard College et al
Filing
588
MOTION Admit Exhibit P9 by Students for Fair Admissions, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Mortara, Adam)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
BOSTON DIVISION
STUDENTS FOR FAIR ADMISSIONS, INC.,
Plaintiff,
v.
PRESIDENT AND FELLOWS OF HARVARD
COLLEGE,
Defendant.
Civil Action No. 1:14-cv-14176-ADB
MOTION TO ADMIT EXHIBIT P9
To streamline this trial, SFFA moves to admit Exhibit P9. “There is no magic to foundation
or authenticity. It simply means that the witness must be able to identify the exhibit.” Foundation, 4
Bus. & Com. Litig. Fed. Cts. § 44:12 (4th ed.). A witness has foundation to testify about a matter “if
evidence is introduced sufficient to support a finding that the witness has personal knowledge of the
matter. Evidence to prove personal knowledge may consist of the witness’s own testimony.” Fed. R.
Evid. 602; Folio Impressions, Inc. v. Byer Ca., 937 F.2d 759, 76364 (2d Cir. 1991) (explaining that a
witness laid foundation where she supervised the designers who created a document and “believed”
the document was one in her studio’s possession).
Exhibit P9 is a PowerPoint document created by Harvard’s Office of Institutional Research,
entitled “Admissions Part II.” Harvard designated Erin Driver-Linn as its corporate representative
to discuss the “creation, use, and discussion of reports prepared by the Office of Institutional
Research . . . .” (Ex. 1 at 1, 12.) During her deposition, Harvard did not object to Ms. Driver-Linn
testifying about P9 in her corporate representative capacity.
At that deposition, Ms. Driver-Linn laid the foundation for this document (identified as
Deposition Exhibit 5) on behalf of Harvard:
Q. I’m handing you a document that’s been marked as Exhibit 5. Take a minute and
familiarize yourself with the document. Let me know if you’ve seen it before.
A. (Witness reviews document.) Yes, I have seen this document or one very much
like it.
Q. Did you, in fact, review this document in preparation for your deposition today?
A. I believe so.
Q. So what is this document?
A. Draft admissions, Part 2, subtitle.
...
Q. . . . But I’m asking for your description of what this document is.
...
A. I believe it to be an internal work product.
...
Q. Okay. What do you know about who prepared this document?
A. I think it likely involved Erica Bever and/or Mark Hansen.
(Ex. 2 at 98:899:22.) SFFA may use that corporate representative testimony for any purpose,
including to admit Exhibit P9. See Fed. R. Civ. P. 32(a)(3) (“An adverse party may use for any
purpose the deposition of a party or anyone who, when deposed, was the party’s officer, director,
managing agent, or designee under Rule 30(b)(6) . . . .”). If the Court prefers for this testimony to be
read on the record, SFFA can do so when convenient during trial.
Harvard has explained multiple times during trial that this document’s author, Mark Hansen,
will be testifying later and can lay the foundation for this document to be admitted. (See Ex. 3 at
57:2124 (Oct. 17, 2018); Ex. 4 at 90:911 (Oct. 19, 2018).) But a witness need not be the author of
a document to have foundation. See Folio Impressions, 937 F.2d at 76364. Under Rule 602, the
witness only needs to have personal knowledge about the document. Given Ms. Driver-Linn’s
30(b)(6) testimony establishing the foundation for and the admissibility of this document as an
admission by a party opponent, SFFA does not need Mr. Hansen’s testimony to admit Exhibit P9.
2
Therefore, if the Court grants this motion SFFA anticipates no longer calling Mr. Hansen if Harvard
also confirms that it will not call him to testify.
For these reasons, SFFA respectfully requests that the Court admit Exhibit P9.
3
October 21, 2018
Respectfully submitted,
/s/ Adam K. Mortara
Adam K. Mortara
J. Scott McBride
Krista J. Perry
Bartlit Beck Herman Palenchar & Scott LLP
54 West Hubbard Street, Suite 300
Chicago, IL 60654
312.494.4400
adam.mortara@bartlit-beck.com
scott.mcbride@bartlit-beck.com
krista.perry@bartlit-beck.com
John M. Hughes
Katherine L.I. Hacker
Meg E. Fasulo
Bartlit Beck Herman Palenchar & Scott LLP
1801 Wewatta Street, Suite 1200
Denver, CO 80202
303.592.3100
john.hughes@bartlit-beck.com
kat.hacker@bartlit-beck.com
meg.fasulo@bartlit-beck.com
William S. Consovoy
Thomas R. McCarthy
Michael H. Park
J. Michael Connolly
CONSOVOY MCCARTHY PARK PLLC
3033 Wilson Boulevard, Suite 700
Arlington, Virginia 22201
703.243.9423
will@consovoymccarthy.com
tom@consovoymccarthy.com
park@consovoymccarthy.com
mike@consovoymccarthy.com
Patrick Strawbridge BBO #678274
CONSOVOY MCCARTHY PARK PLLC
Ten Post Office Square
8th Floor South PMB #706
Boston, MA 02109
617.227.0548
patrick@consovoymccarthy.com
4
Paul M. Sanford BBO #566318
BURNS & LEVINSON LLP
One Citizens Plaza, Suite 1100 Providence,
RI 02903
617.345.3000
psanford@burnslev.com
bcaldwell@burnslev.com
Attorneys for Plaintiff Students for Fair Admissions, Inc.
5
CERTIFICATE OF CONFERENCE
Pursuant to Local Rule 7.1(a), the undersigned conferred with counsel for Defendant on
October 21, 2018, and Defendant opposes this motion.
/s/ Katherine L.I. Hacker
6
CERTIFICATE OF SERVICE
I hereby certify that this document, filed through the ECF system will be sent electronically
to the registered participants as identified in the Notice of Electronic Filing (NEF) and paper copies
will be sent to those indicated as non-registered participants on this 21st day of October, 2018.
/s/Adam K. Mortara
7
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?