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)

Exhibit 3

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UNITED STATES DISTRICT COURT

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DISTRICT OF MASSACHUSETTS

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___________________________________

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STUDENTS FOR FAIR ADMISSIONS, INC.,
Plaintiff,

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v.

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PRESIDENT AND FELLOWS OF HARVARD
COLLEGE, et al.,

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Civil Action
No. 14-14176-ADB
October 17, 2018
Pages 1 to 241

Defendants.
___________________________________

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TRANSCRIPT OF BENCH TRIAL - DAY 3
BEFORE THE HONORABLE ALLISON D. BURROUGHS
UNITED STATES DISTRICT COURT
JOHN J. MOAKLEY U.S. COURTHOUSE
ONE COURTHOUSE WAY
BOSTON, MA 02210

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JOAN M. DALY, RMR, CRR
Official Court Reporter
John J. Moakley U.S. Courthouse
One Courthouse Way, Room 5507
Boston, MA 02210
[e-mail]
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unqualified "I have a recollection of it," I think that is

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important. And what he's disagreed with is how carefully he

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reviewed it before he gave that testimony.

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THE COURT: They're willing to stipulate that he

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looked at it for six minutes. I will accept for the record

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that he looked at it for six minutes.

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The questions that follow about how familiar he is

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with it, he's pretty clear that he is familiar with parts of

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it, and he remembers things about it. So that's not

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inconsistent. He says he remembers parts of it.
You ask him questions about what you want to ask

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him. If it's a part that he remembers, he'll testify about

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it. If you need to refresh his recollection on something in

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here that he used to have a recollection of that part but no

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longer does, you can do that.

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But let's get into the document and see what he

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remembers and what he doesn't. I will accept for the record

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that he looked at it for six minutes.

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MR. HUGHES: Thank you, Your Honor. What I'd like
to do is I'd like to offer P602 into evidence.
MR. LEE: I object. There's no foundation. There

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will be another witness who actually prepared the document

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who will be here to testify. But there's no foundation for

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this witness.

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THE COURT: I can hold off on the admitting of the
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exhibit, but I'm going to let him ask him questions about it.

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MR. LEE: I understand.

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MR. HUGHES: Just so Your Honor is clear, he

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testified in his deposition he had a recollection of it

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independent of his deposition preparation. We'll get into

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all of that. What I would prefer to do is actually show him

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the color version of this, which is Plaintiff's Exhibit 9,

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which I'd also like to offer into evidence, which I assume

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Mr. Lee has the same objection to.
THE COURT: I assume this exhibit is going to come

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in. I'm going to let you ask questions of him about it now

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so that he doesn't have to be recalled once it's admitted.

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My guess is Mr. Lee is also expecting the document to come

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in.

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MR. LEE: Yes. At some point, Your Honor. I think

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having the color version is fine, and having him be examined

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on the same basis Your Honor talked about, the non-color

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version, is fine.

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THE COURT: So now it's not going to be admitted at
the moment. I am going to let him be questioned about it.
What's your view on whether it's put up for the
studio audience here? It's a not-admitted exhibit.

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MR. LEE: It's fine, Your Honor.

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THE COURT: Okay. Karen, go ahead -- it's not

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admitted at the moment, but we will put it up on the screen
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