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 4

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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 19, 2018
Pages 1 to 263

Defendants.
___________________________________

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TRANSCRIPT OF BENCH TRIAL - DAY 5
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
KELLY MORTELLITE, 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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witness, Your Honor, so that we didn't have to recall Dean

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Fitzsimmons. But it actually hasn't been admitted into

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evidence yet.

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BY MS. HACKER:

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Q.

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corporate representative to talk about OIR reports at your

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deposition, right?

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A.

That's right.

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Q.

And this is one of the documents you reviewed to prepare

Ms. Driver-Linn, you were designated as Harvard's

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to testify on Harvard's behalf about OIR reports; is that

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right?

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A.

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deposition was as the corporate representative and which part

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was not.

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Q.

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representative to talk about OIR reports and this report

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specifically at your deposition?

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A.

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the deposition.

I'm sorry. I can't quite remember which part of the

Do you remember being designated as a corporate

I remember talking about this document specifically at

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MS. HACKER: Your Honor, SFFA offers P9.

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MS. ELLSWORTH: Your Honor, I'm not sure being a

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corporate representative at deposition lays foundation. The

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witness testified at her deposition she didn't recall the

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document from 2013. She can certainly speak to it. We don't

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object it to being used in the same way with Dean

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Fitzsimmons. I'm just not sure that a foundation has

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actually been laid.

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THE COURT: I am going to let her testify about it.

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MS. HACKER: If I may, just one more question on

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this. I think I may be able to clear this up.
THE COURT: I'm wondering who is going to be able

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to lay a foundation for them. And the document seems fair

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game.
MS. ELLSWORTH: There is an individual who will be

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testifying later who is the person who created the document

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who would be the likely person to lay a foundation with.

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THE COURT: So you can get it now through her, or

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we'll do it through a later witness. But you can certainly

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question her about it now. If you want to try and get it in

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through her, that's fine.

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BY MS. HACKER:

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Q.

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much like it, correct?

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A.

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Ms. Driver-Linn, you've seen this document or one very

Yes, I have.
MS. HACKER: Your Honor, this witness has

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foundation. She's seen the document. She reviewed it for

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her deposition. She oversaw the office of institutional

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research that created this document for ten years. She

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certainly has foundation to testify about it.

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THE COURT: Well, I'm going to let her testify

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about it. I'm not sure you've elicited -- you may be able to

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elicit a foundation based on the fact that she oversaw the

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work of the office during that time period and what her

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responsibilities were in that way, but I don't think you've

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laid it yet. Or that you have a chance to lay it with her or

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they're representing that the author of the document will be

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on later. So you can try it through her. And if it doesn't

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come in through her, it will come in later. I don't think

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they're objecting to you putting it up on the screen now, in

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any event.
MS. ELLSWORTH: No, and the witness can be

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questioned on it. No objection on that. It's just a

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foundation issue.

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BY MS. HACKER:

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Q.

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page of this document. You see that it says February 14,

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2012, right?

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A.

I do see that.

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Q.

But this document was actually created in February

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of 2013?

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A.

I believe so.

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Q.

And you believe it's likely that this document was

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created by Erica Bever and/or Mark Hansen?

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A.

No. I believe it was Mark Hansen.

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Q.

Ms. Bever -- I'm sorry.

Ms. Driver-Linn, let's start with the date on the first