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

Filing 67

MOTION to Seal Exhibit and Unredacted Memorandum of Law Associated with Motion to Compel by Students for Fair Admissions, Inc..(Caldwell, Benjamin)

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

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

***The attached envelope contains
documents that are the subject of a
Protective Order of this Court and cannot
be opened or its contents made available to
anyone other than counsel of record for
the parties or Court personnel.***

PLAINTIFF’S MOTION TO FILE UNDER SEAL
EXHIBIT AND UNREDACTED MEMORANDUM OF LAW
ASSOCIATED WITH MOTION TO COMPEL
Pursuant to Local Rule 7.2 and in reaction to Defendant, the President and
Fellows of Harvard College (“Harvard”), designating certain documents as “protected
material” under the Stipulated Protective Order (Dkt. No. 55), Plaintiff, Students for Fair
Admissions, Inc. (“SFFA”), hereby moves this Honorable Court for an order sealing (a)
certain deposition testimony that SFFA used as an exhibit (“Protected Testimony”) in
connection with its recently filed motion to compel (Dkt. No. 64) and (b) the unredacted
version of SFFA’s memorandum of law in support of its motion to compel (Dkt. No. 65 “Memorandum of Law”) which discusses and references the substance of the Protected
Testimony.
Yesterday, after the close of business, SFFA publicly filed its motion to compel.
SFFA also publicly filed a redacted version of the Memorandum of Law, in which
discussion and references to the substance of the Protected Testimony were redacted, as

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well as a declaration from SFFA’s counsel (Dkt. No. 66 - “Strawbridge Declaration”)
which did not attach the Protected Testimony.
The Protected Testimony–portions of deposition testimony from Marlyn
McGrath, Harvard’s Director of Admissions–is part of Exhibit B to the Strawbridge
Declaration. The pages of that testimony which Harvard approved for public filing
outright, or with limited redactions, were publicly filed along with the Strawbridge
Declaration. Pursuant to §§ 10 and 13 of the Stipulated Protective Order, the pages of
that testimony which Harvard has indicated it intends to designate as either
“Confidential” or “Highly Confidential – Attorneys’ Eyes Only” have not been publicly
filed. It was noted when the motion to compel was filed that the Protected Testimony,
along with the unredacted Memorandum of Law, would be filed separately under seal via
this motion. The Protected Testimony and the unredacted Memorandum of Law have
been delivered to the Court in a sealed envelope along with this motion.
The Protected Testimony principally concerns Harvard’s undergraduate
application review process. In light of the Court’s expressed concerns about ensuring
public access to documents used in this case and SFFA’s belief that much of the
substance of the Protected Testimony is already publicly available information, SFFA
asked Harvard to consent to the public filing of the Protected Testimony, but Harvard
declined to do so.
Harvard was made aware of this motion and assents to SFFA’s request to file the
Protected Testimony and unredacted Memorandum of Law under seal, but disagrees with
SFFA’s assertion that the underlying information is available from public sources.

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WHEREFORE, if the Court agrees with Harvard’s decision to designate the
Protected Testimony as “Confidential” or “Highly Confidential – Attorneys’ Eyes Only,”
it is respectfully requested that the Court grant this motion and allow (a) the Protected
Testimony and (b) the unredacted Memorandum of Law to be filed under seal and to be
viewed only by the Judge, her clerk(s) and Court personnel in conjunction with SFFA’s
motion to compel.

Respectfully submitted,
By: /s/ William S. Consovoy
William S. Consovoy

Paul M. Sanford BBO #566318
Benjamin C. Caldwell BBO #675061
BURNS & LEVINSON LLP
One Citizens Plaza, Suite 1100
Providence, RI 02903
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]

William S. Consovoy
Thomas R. McCarthy
J. Michael Connolly
CONSOVOY MCCARTHY PARK PLLC
3033 Wilson Boulevard, Suite 700
Arlington, Virginia 22201
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]

Dated: July 17, 2015

Patrick Strawbridge BBO #678274
CONSOVOY MCCARTHY PARK PLLC
Ten Post Office Square
8th Floor South PMB #706
Boston, MA 02109
Tel: [phone]
[e-mail]
Counsel for Plaintiff Students for Fair
Admissions, Inc.

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CERTIFICATE OF CONFERENCE
In accordance with Local Rules 7.1(a), I hereby certify that Harvard’s counsel
was made aware and sent a copy of this motion before it was filed and assents to SFFA’s
request to file the Protected Testimony and unredacted Memorandum of Law under seal.

/s/ Patrick Strawbridge
Patrick Strawbridge
CERTIFICATE OF SERVICE
In accordance with Local Rule 5.2(b), I hereby certify that this document was
filed through the Court’s ECF system on July 17, 2015 and will be sent electronically to
the registered participants identified on the Notice of Electronic Filing. The two
attachments to this motion were delivered to the Court in a sealed envelope.
/s/ Benjamin C. Caldwell
Benjamin C. Caldwell

4818-8987-4469.2

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