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

Filing 84

Transcript of Status Conference held on July 21, 2015, before Judge Allison D. Burroughs. COA Case No. 15-1823. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Carol Scott at [e-mail] Redaction Request due 8/20/2015. Redacted Transcript Deadline set for 8/31/2015. Release of Transcript Restriction set for 10/28/2015. (Scalfani, Deborah)

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UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

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STUDENTS FOR FAIR
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ADMISSIONS, INC.,
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Plaintiff,
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vs.
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PRESIDENT AND FELLOWS OF
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HARVARD COLLEGE, et al,
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Defendants.
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CIVIL ACTION
No. 14-14176-ADB

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BEFORE THE HONORABLE ALLISON D. BURROUGHS
UNITED STATES DISTRICT JUDGE
STATUS CONFERENCE

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A P P E A R A N C E S
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CONSOVOY McCARTHY PARK PLLC
3033 Wilson Boulevard, Suite 700
Arlington, Virginia 22201
for the plaintiff
By: William S. Consovoy, Esq.

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CONSOVOY McCARTHY PARK PLLC
Ten Post Office Square, 8th Floor
Boston, Massachusetts 02109
for the plaintiff
By: Patrick Strawbridge, Esq.

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Courtroom No. 16
John J. Moakley Courthouse
1 Courthouse Way
Boston, Massachusetts 02210
July 21, 2015
2:00 p.m.

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APPEARANCES CONTINUED

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BURNS & LEVINSON LLP
One Citizens Plaza, Suite 1100
Providence, Rhode Island 02903
for the plaintiff
By: Paul M. Sanford, Esq.

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WILMER CUTLER PICKERING HALE and DORR LLP
1875 Pennsylvania Avenue, NW
Washington, D.C. 20006
for the des
By: Seth P. Waxman, Esq.

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WILMER CUTLER PICKERING HALE and DORR LLP (Bos)
60 State Street
Boston, Massachusetts 02109
for the defendants
By: Felicia H. Ellsworth, Esq.

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ALSO PRESENT:

Ara Gershengorn, Esq., Harvard Office of
General Counsel

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CAROL LYNN SCOTT, CSR, RMR
Official Court Reporter
One Courthouse Way, Suite 7204
Boston, Massachusetts 02210
[phone]

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P R O C E E D I N G S

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THE CLERK:

All rise.

Court is in session.

Please be seated.

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This is civil action 14-14176, Students for Fair

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Admissions, Inc. versus President and Fellows of Harvard.

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Will counsel identify themselves for the record.

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MR. SANFORD:

Good afternoon, Your Honor.

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Paul Sanford on behalf of the plaintiff Students for Fair

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Admissions.

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MR. STRAWBRIDGE:

Patrick Strawbridge from

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Consovoy McCarthy Park, also on behalf of Students for Fair

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Admissions.

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MR. CONSOVOY:

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Fair Admissions, Your Honor.

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MS. ELLSWORTH:

Will Consovoy for Students for

Good afternoon, Your Honor.

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Felicia Ellsworth for Harvard College.

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MR. WAXMAN:

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Seth Waxman, also for Harvard

College.

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MS. GERSHENGORN:

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afternoon, Your Honor, for Harvard College.

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THE COURT:

Ara Gershengorn, good

Thank you all.

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little courtroom today.

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We are in this

feels a little more intimate to me.

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I actually kind of like it.

It

So I know we set this up as sort of a routine
status to kind of keep this on track.

And I want to sort of

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rule on what I am prepared to rule on today and then have

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some discussion about sort of what is next.

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So Harvard has filed a motion to file under seal an

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unredacted proposed reply memo of law and supporting

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material in support of the Motion to Stay which I have read

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and also a Motion for Leave to File a Reply Memorandum in

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Support of a Motion to Stay which I also have read.

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those motions appear to be unopposed and, in any case, they

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are both granted.

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Both

Then I also have sort of two sets of documents

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here.

I have Harvard's Motion to Stay, SFFA's Opposition to

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the Motion to Stay, now Harvard's reply memo which I guess

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under the rule you have to refile but I do have a copy in

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front of me, and then Plaintiff's Motion to Compel

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Production which I don't believe has been responded to yet;

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is that right?

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Okay.

So, and on top of that, issues one and two,

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on top of that, as you all are no doubt aware, I ruled on

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the motion to intervene and the intervenors have filed a

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Notice of Appeal in that so I sort of feel like those are

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the three general topics.

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I have skimmed Plaintiff's Motion to Compel

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Production and I am going to put that aside until Harvard

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has a chance to respond to it.

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If anybody does have anything they want to say on

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that today, that is fine but I really haven't thought hard

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about that motion or spent any time reading it but I have

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received it.

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My preliminary question on the issue of the stay --

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I know there is a lot of appellate specialists back there

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and I am not one -- do you all have thoughts on whether or

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not I lose jurisdiction while the motion to intervene is

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pending, the appeal on the motion to intervene is pending?

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I have tried to do some research on it and the

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answer seems very unclear to me.

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that but I thought rather than spend too much on it, I know

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you are the biggest, a big appellate specialist crew out

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there and I thought maybe one of you might know the answer.

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I actually had lunch with a First Circuit Judge and I said

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just --

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We will do some more on

(Laughter.)

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THE COURT:

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like, I don't know.

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you guys.

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-- an interlocutory appeal he is,

So I am going to throw it back out to

my jurisdiction?

Do you have any thoughts on about what happens to

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MR. CONSOVOY:

This is a guess, Your Honor, so

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please don't hold me to it.

I believe their appeal is under

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the Collateral Order Doctrine so they have an, that's how

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they're getting up on appeal, so I believe you still have

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jurisdiction over the remainder of the case while they are

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appealing, if that's the question you're asking.

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based on no research.

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THE COURT:

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MR. WAXMAN:

But that's

Okay.
I'll offer you my tentative

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off-the-cuff view and you can hold me to it for whatever it

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is worth.

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I think that's correct, I think that you don't lose

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jurisdiction.

I would be quite surprised if you did because

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in Grutter as I recall there was a denial of a motion to

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intervene and the case went forward during the pendency of

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the appeal on the denial of a motion to intervene.

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Sixth Circuit held that intervention, that the intervenors

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were entitled to participate, they just joined and, you

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know, I don't know, restarted discovery but augmented

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discovery.

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We can all continue to talk here today.

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THE COURT:

And the

So I think, as far as I know, you can continue.

And I understand that everyone in

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this room would probably like it to continue in some form or

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another, just, we will just ignore those people over there.

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Has any sort of scheduling order been set in that?

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From the intervenors?
MR. CONSOVOY:

Not to my knowledge.

I saw the

notice of appeal but I have not seen a scheduling order.
THE COURT:

Okay.

So on the one hand we have

the intervenors and one can obviously make an argument that

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we should go forward in the face of the motion to intervene

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and the appeal and you can also make an argument that given

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that what they want to do is participate fulsomely in

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discovery that there are some counterarguments that perhaps

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it should be stayed.

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And then on top of that we have Harvard's motion to

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stay and whatever the Fisher overlay is, I do feel like the

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gravitational forces of the universe are sort of pushing me

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towards a stay on this.

That being said, and this is not

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meant to be any sort of ruling on the merits because I

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haven't delved into it deeply enough today, and I am going

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to give you all an opportunity to argue anything that you

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want beyond what is in the briefs today but I really don't

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want to stay the case in its entirety.

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It appears to me, and, again, I will be interested

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in your opinions on this, but whichever way Fisher II goes,

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and I am not totally sure why the Supreme Court is rehearing

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it, I am not sure exactly what their interest is, but it

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seems unlikely to me that it will completely moot this case.

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So if there are things that we can do during the

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pendency of Fisher and the pendency of this appeal, I would

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like to do some of those things, if there are those things

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that we can identify will need to be done in any case.

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And I say that understanding that Harvard wants a

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complete stay and that SFFA wants no stay at all; but I am

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thinking about sort of a middle ground where we get some of

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the fundamentals of discovery done and then, so there is not

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too much replication depending on how Fisher works out, how

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the motion to intervene works out.

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So, again, I am not going to rule on the motion

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today.

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opposition but not carefully enough.

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this as sort of a hearing, quasi hearing opportunity on it.

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I just got Harvard's brief.

I have read SFFA's
I thought we could use

Mr. Consovoy, you look like you want to speak.

You

can go first.
MR. CONSOVOY:

Yes.

Obviously our papers, you

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know, you're right, Your Honor, we definitely would like the

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whole case to go forward.

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agreement today on these two basic propositions and I think

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we will debate the rest.

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I think, I hope we can get

But Count I is a claim of invidious discrimination

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against Asian Americans.

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that issue before the Supreme Court.

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with an interest in critical mass or anything like that.

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is an old fashioned, you know, under Yick Wo and the cases

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that are over a century old, saying you cannot intentionally

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discriminate against any racial group in this setting, one.

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I don't suspect Harvard will leave
That has nothing to do
It

Two, Count II of the Complaint has to do with

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racial balancing, that you are balancing the class in some

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of a, you know, a quota system.

I hope and suspect that

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Harvard will also agree that that is, that Fisher II will

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never make that permissible.

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long time, decades.

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that's been a, you know, against the rules in Grutter and in

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Fisher I and Texas is not suggesting that they're engaging

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in racial balancing.

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That has been banned for a

Going back to Bakke, it was reiterated,

Those are the two sort of premier claims and I

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think they would get most of the discovery done.

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don't think there is any allegation that the Supreme Court's

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decision no matter what it is doing will shed any more light

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on that than we have now.

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THE COURT:

And I

Mr. Waxman or Ms. Ellsworth, do

you want to respond?
MR. WAXMAN:

Well, I think, I take Your

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Honor's point that it may well be that what the Supreme

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Court decides in Fisher II is anybody's guess, what the

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Supreme Court will decide in Fisher II.

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As we pointed out in our reply, and I won't

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reiterate it here, the face of the petition for certiorari

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and the public statements of Ms. Fisher's lawyers suggest

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that what the Supreme Court is being asked to do is to

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substantially affect the way in which the current rules

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under which race is taken into account.

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Fisher II, if the only complaint in Fisher II was that there

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was a footfall in the application of an agreed upon

I mean, if all

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standard, it's very, very unlikely that the Supreme Court

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would be taking the case again.

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Court does.

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we don't really know.

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That's not what the Supreme

And it's not what it's being asked to do and so

And since, I would say that on the issue of whether

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it would render this lawsuit moot or not, No. one, I think

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that's not the issue and I'll come back to that; but, No.

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two, it may, in a sense, that there is no retrospective

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relief being requested here, this is, they are seeking an

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injunction to stop Harvard from conducting its holistic

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admissions process the way that it currently has been doing.

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And in the event that the Supreme Court were to do

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any one of the things that their cert petition asks the

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Court to do, including determining that what they call

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"qualitative diversity" as opposed to "quantitative

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diversity" is inappropriate, or that the consideration of

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race should be limited to, quote, the last few spaces in a

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class, or that race can be taken into account only for

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reasons that were expressed by the University at the time it

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began doing so, all of which the Supreme Court is being

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asked to consider.

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Harvard, independent of this lawsuit, Harvard would

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have to reconsider whether or not it can continue to conduct

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its admissions program the way it has been and has been long

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since Bakke was decided.

That would, in fact, render the

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Complaint in this case moot.

Harvard would consider whether

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it had to change.

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claim saying we haven't changed it enough but there is a

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very real prospect that if the Supreme Court does everything

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that is being asked of it, the University will have to

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consider on a going forward basis how it continues to

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operate.

If it did change, they could bring a

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We believe that our program satisfies Fisher I and

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Grutter, Gratz and Bakke but so did the University of Texas

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and so did the Fifth Circuit.

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University of Texas, in fact, has complied.

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Court has decided to consider the question whether they have

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and what guidelines ought to apply.

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think in two regards, in addition to the fact that it may,

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in fact, moot the prospective relief challenge here.

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And we think that the
The Supreme

And that has bearing I

One is that it is going to inevitably affect the

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scope and the magnitude of discovery in this case.

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there is a suggestion that, well, Count I says that we're

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intentionally discriminating against Asian Americans.

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II says we're engaging in racial balancing.

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Now,

Count

I don't think that the plaintiffs are prepared to

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dismiss Count III and Count IV and, frankly, all of the

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discovery in this case, I don't think it can be segregated.

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We're asking about -- they're asking to examine the same

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documents, examine the same witnesses, respond to all the

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same contention interrogatories.

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forward with the discovery or we're not.

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the extent to which the scope of permissible discovery will

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be affected.

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We're either going to go
And no one can say

Now, their position is, well, we're not going to

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ask for any more discovery no matter what Fisher decides and

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that's because, and, you know, we'll get into this when you

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finally adjudicate the Motion to Compel and see what we are

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prepared to produce.

They're asking for everything.

And

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the notion that there is going to be nothing left more for

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us to ask for, you just give us everything and then we will

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decide in light of Fisher what subset of that we need.

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A, it is inappropriate to place on Harvard, a

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nonprofit institution, discovery that is going to be

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intrusive, burdensome and enormously expensive.

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of discovery that they're trying to get in this case, and

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that if we go to the merits of the case they will be, if

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we -- on some subset of which they would be entitled to once

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we understand what the constitutional standard is, has

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enormous student privacy concerns, enterprise concerns for a

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private educational university and how it goes about making

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decisions.

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The types

And I think the balance in evaluating where the

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balance lies in terms of a stay or not stay, I think it

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would be a mistake to think that you can segregate discovery

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as to certain claims of the Complaint and not others.

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it also would be a mistake not to consider the fact that the

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request for a stay here is a consequence of a very

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considered decision by the leadership, the leadership of

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SFFA to litigate the issue of the permissible use of race in

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university admissions in three different courts at the same

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time.

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the fact that the First Circuit may, in fact, conclude that

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the intervenors indeed have a right to participate, and what

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they want to participate in is discovery, that on balance we

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think the Court should exercise its discretion and, in fact,

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stay discovery in this case until the Supreme Court explains

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what the relevance is.

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And

And in light of all the circumstances, not to mention

THE COURT:

So -- I am going to give you

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another chance to talk, Mr. Consovoy, you can sit -- he was

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just about to stand.

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his knees for a second.

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I am just saving the wear and tear on

I am not contemplating segregating discovery by

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count.

And I don't, I didn't actually understand that that

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is what Mr. Consovoy was asking for.

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saying is that there are two counts that are going to be

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unaffected and we may as well do discovery since those two

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counts will survive.

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misunderstood you, I am not going to segregate discovery by

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count.

I think what you were

But, in any event, if I have

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And I, you know, I understand that we have the

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intervenors and we have Fisher II and those two things have

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the capability of changing the landscape significantly over

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the next few months between the two of them.

I have not

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decided what I am going to do on the motion.

I need to look

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at it much more closely than I have but perhaps in an

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overabundance of practicality, what I am wondering is if

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there is, once the intervenors are resolved and once Fisher

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II is resolved, I would like to have this case in a position

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to move expeditiously forward.

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are things that we can do now to position ourselves for

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that.

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And I am wondering if there

And I may be naive about this and I may not

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understand Harvard's admissions process but what I was sort

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of thinking was that SFFA is going to need to look at some

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of these applications, look at some of the basic discovery,

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figure out how they're going to load the information into a

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computer and how they are going to do whatever analytics

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they're going to do on it and that maybe it made sense to

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give them some, you know, smaller sample of applications.

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They can get their system and their processes in place so

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that when it does become more clear what they're going to

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get and what they're not going to get, that they can just

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load information rather than spend the time trying to figure

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out how to handle that information.

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I may be completely off base about that but that is

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what I was sort of thinking, just some way to get processes

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in place so when all these issues resolve themselves we can

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move forward without wasting any more time.

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It was your turn, go ahead.

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MR. CONSOVOY:

Direct, responding to your

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question directly, we would have to talk to our experts but

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I suspect our processes are ready to go.

We are waiting on

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some discovery.

This case has been

We haven't had any yet.

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pending for a long time now.

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is I would confess frustrating.

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To have no documents produced

I think some of the concerns we raised at the

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initial scheduling conference have borne out, how long it

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took to get a protective order in place, how long it took to

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negotiate electronic discovery.

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We represent something like over 16,000 students

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now.

64 Asian-American organizations filed a Complaint with

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the Department of Education.

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because the Department of Education told them that this case

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is proceeding so, therefore, they will not review their

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Complaint.

That Complaint was dismissed

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And now Harvard comes here to say stop this case

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from proceeding, now that the Complaint is dismissed, and

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then I gather Harvard is going to tell the Supreme Court

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please don't do anything to change what the University of

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Texas did but if you do, to Your Honor, please look at

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footnote one of our stay paper where we say even if we lose

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terribly in Fisher II, we're going to argue that it really

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has an affect on us because we're a private institution

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that's governed by Title VI and not by the Fourteenth

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Amendment.

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here, I think it's Harvard's and not ours.

So if there is a concern of litigation strategy

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Second, I wrote the Fisher petition.

I would

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direct Your Honor to -- I think it really solves these

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issues more than we can debating it -- the brief in

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opposition submitted by the University of Texas.

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everything that Mr. Waxman said.

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THE COURT:

They said

Well, surely --

Probably not as well.

(Laughter.)
MR. CONSOVOY:

Well, no one could.

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a footfall case.

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look, they have this Harvard case going.

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to get to the big issues, wait for that one.

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They're just asking for review.

But it is
And,

If you really want

In response we said no, you're right, you're right,

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this is about correcting error from the Fifth Circuit and

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you don't normally do that but this was a pretty big error

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and this is a pretty big case.

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And, two, this is a big issue irrespective of what

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happened with the larger issues.

This case is about whether

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strict scrutiny was correctly applied.

I think if you read

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those papers you will see that almost everything Mr. Waxman

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said about Fisher actually is inaccurate, that we're not

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challenging them to limit them to Bakke there.

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that their arguments don't stand up to their own reasons.

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And I won't go on about it more than that.

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We're saying

I agree with Your Honor that segregating discovery

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is going to be difficult here.

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think you definitely grasped it, was -- and I didn't hear

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Mr. Waxman say differently -- Counts I and II are against

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the law now and they will be against the law after Fisher.

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They are the lead count in the Complaint.

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unaffected by the case.

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I think my point was, and I

They will be

Harvard bears the burden of saying why a stay will

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do something here.

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lose Fisher so badly that we might abandon the whole thing.

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That's an unusual reason for someone to grant a stay, to

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seek a stay, particularly when they say that if we lose,

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we're going to argue that Fisher had no application to us.

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And their argument seems to be we might

I really do think the case should go forward.

It

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will eliminate the concern about destruction of evidence,

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witnesses, God forbid, passing away or moving out of the

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jurisdiction.

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process.

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process.

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We will add another admission cycle to this

Every year 37,000 more students go through this

The reason why this case is a big deal is because

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this is a major Civil Rights action and there is an interest

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in justice in cases like that going forward.

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a really big reason on Harvard's part to stay it.

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understand there are convenience issues.

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know, could Fisher dictate certain changes to the legal

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standard of summary judgment briefing, maybe, but we're

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going to be done with discovery before we ever get to that.

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There really, there just really isn't a basis for a stay.

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And my last point is on the intervenors.

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haven't sought a stay of the discovery pending appeal yet.

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They could.

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want to look at if they did.

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they were mostly interested in expert discovery.

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appeal will likely be resolved well in advance of expert

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discovery.

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to be producing facts.

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believe in their papers, I apologize if I'm wrong, if it was

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in an email exchange, but that they would likely let Harvard

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take the lead on propounding discovery on us.

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going to add fact discovery.

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think about this when we get to expert discovery and see

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where the intervenors are but I wouldn't let the tail wag

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the dog on a stay here.

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It would take
And I

And I agree, you

They

I think that would be something everyone would
And if I recall their papers,
Their

They certainly haven't suggested they're going
And they certainly have said to us I

THE COURT:

They're not

So, if anything, we could

This is a big, big deal.
So, again, I haven't read the

papers thoroughly enough, especially since I just got some

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of them today, to rule on this; but is there a smaller

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subset of information that were I inclined to give some sort

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of limited stay in this, is there some smaller subset of

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information that would, "satisfy you" would be an

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overstatement but that would help advance the case?

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MR. CONSOVOY:

So I think if you look at the

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Motion to Compel, the sample of application files are a

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major centerpiece and will take a large part of our work.

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think the names, and I don't want to prejudice Your Honor's

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review of the papers, but Harvard has said we've asked for

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the names of alumni interviewers who they concede are third

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parties in this case and who we would like to investigate,

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interview some and maybe depose some but, you know,

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third-party discovery which would have no real burden on

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Harvard, you know.

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I

They won't even give us the names.

So I would say could we at least, and maybe if Your

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Honor, you know, over opposition grants a partial stay, we

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could perhaps submit something in writing that could more

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clearly detail the kinds of things that would be helpful but

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getting files would be a huge step forward.

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names of the alumni interviewers would be a second huge step

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forward.

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reviewing, the training materials, the instructions for

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readers, their policies on affirmative action and why they

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use it, stuff that they have and, you know, we're six months

Getting the

And getting just basic materials that we can start

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in and, yeah, discovery, you know, of some custodians in the

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Admissions Office, just the basics.

3

the ground floor of building the case.

4

we would ask for that; but, again, I don't want, you know,

5

we would oppose any stay of course.

6
7

THE COURT:

As you put it, sort of
I mean, at a minimum

I understand.

Mr. Waxman, in terms of -- I take the application

8

files and put them in a separate category.

And I think

9

there is going to need to be a more fulsome discussion about

10

those applications and how many they get.

11

have asked for an enormous number of things and I take it it

12

is going to be a lot of work for Harvard to redact those

13

sufficiently to give those to you.

14

They have, you

But he might be making a reasonable proposal which

15

is that we start with some things that don't really infringe

16

on student privacy like the alumni interviewers and the

17

training manuals and all that sort of thing.

18
19

What is your view on starting with those things?
MR. WAXMAN:

I am hesitating only because I am

20

wondering whether my partner Ms. Ellsworth should speak

21

because she's been negotiating the discovery issues.

22

other hand -- I'm always reluctant to pass up the

23

opportunity to stand up but --

24

(Laughter.)

25

THE COURT:

On the

Well, that being said, I am always

21

1

delighted to have a woman stand up and speak in here.

2

doesn't happen that often.

3

It

(Laughter.)

4

MR. WAXMAN:

Well, that's easy.

5

MS. ELLSWORTH:

With that said.

So in terms

6

of what Mr. Consovoy has outlined as the kind of limited

7

baseline of discovery, I mean, I think as Your Honor has

8

recognized, there is some disagreement here about what that,

9

where that baseline should begin and end.

10

Certainly things like policies and training manuals

11

we could consider.

12

files right now which is, of course, you know, both the

13

subject of a dispute here as well as one of the major

14

privacy interests.

15

I don't hear Mr. Consovoy asking for the

We also have -- and this will be in our opposition

16

motion -- we have agreed to provide to SFFA the admissions

17

database and that contains we think, and, again, you will

18

see this in our papers, but we think most, if not all, of

19

what they purport to need from this huge number of files

20

that they're requesting so, you know, there is sort of

21

information that we see in the sense of the fields that are

22

available in the database that we consider being, producing

23

now and in the event of a limited stay, depending on how

24

Your Honor rules on this.

25

There are sort of, I think there is a way that we

22

1

could make some progress without handling and grappling with

2

some of these privacy issues that are so important to

3

Harvard and also have, you know, major implications for our

4

students and applicants and also the need for other

5

considerations.

6

I would like to just make a quick point on the

7

status of discovery that Mr. Consovoy has raised.

It

8

certainly is not the case that discovery is not ongoing.

9

It's true that documents have not yet been produced but

10

there have been RP's and interrogatories propounded and

11

responded to on time by Harvard.

12

deposition of Director McGrath who is the Director of

13

Admissions and that deposition is scheduled right around the

14

date that was requested.

15

objection so it is not, it is not the case that discovery is

16

not going forward.

17

yet been produced but we certainly are collecting and will

18

be prepared to produce those expeditiously in the event that

19

Your Honor does order us to go forward.

They noticed the

It went forward.

There was no

It is the case the documents have not

20

But in terms of how we might limit the discovery, I

21

think we could conceivably come to a baseline but I do think

22

that what Mr. Consovoy was describing is closer to what we

23

would consider the scope of appropriate discovery for the

24

entire case would be as opposed to the more limited scope

25

that I understand Your Honor to be suggesting.

23

1

You know, conceivably we could meet and confer with

2

SFFA and come up with a proposal or at least competing

3

proposals for how, what a limited stay might look like and

4

what the parties would be willing to agree to.

5

haven't thought precisely what we would be willing to

6

propose at this point but we're happy to do that quickly if

7

Your Honor would like.

8

THE COURT:

All right.

We certainly

Well, let me do this.

9

I, as I say, I am worried about the -- I am not worried

10

about but we have the intervenors going to the Appellate

11

Court.

12

We have Fisher II out there.
That being said, I am very reluctant to stay the

13

whole thing.

14

talking about philosophically reluctant to stay the whole

15

thing.

16

depth understanding of the law.

17

your briefs on that but I am not going to get to this, I

18

have some teaching obligations for the rest of this week and

19

won't be back in the office until next week.

20

I will read the briefs more carefully.

I am

I am sort of unencumbered by, you know, really a
And I will go back and read

So why don't you all take, say, a week and see if

21

you can -- if I do come to the conclusion that some sort of

22

limited stay is appropriate, understanding that I would like

23

to in some way keep this going but without unnecessarily

24

risking the duplication that may come as a result of the

25

motion to intervene or Fisher, if you could come up with a

24

1

joint or competing proposals that if I choose the middle

2

ground, I can get that into an order and get you guys back

3

to work on this.

4

And if you can't, that is fine.

5

me -- if you decide not to avail yourselves of the

6

opportunity and you just want me to rule on the motion in

7

its current form, I am happy to do that too.

8

are things that can be accomplished during this period, I

9

would really like to try and get some of that done.

10

MR. SANFORD:

11

THE COURT:

12

MR. SANFORD:

If you just want

But if there

If I may, Your Honor?

Absolutely.
I understand the Court's

13

reluctance to allow the case to go forward as a whole but I

14

would suggest, Your Honor, that I cannot conceive of a

15

partial stay in this case that would make any practical

16

impact on discovery when I think it's virtually conceded by

17

Harvard that Counts I and II will go forward on invidious

18

discrimination against Asian Americans and Count II will go

19

forward on racial balancing.

20

The only standard we need to meet support for

21

discovery for those two counts is likelihood to lead to the

22

discovery of admissible evidence period.

23

standard for us to meet.

24
25

It's a very simple

Those two counts alone, separate and apart from
Fisher II and the intervenors who have taken an appeal, will

25

1

allow us to conduct the discovery that we have sought to

2

conduct so far in this case.

3

some good news on discovery, as Ms. Ellsworth pointed out,

4

which is we have taken the deposition of Ms. McGrath, the

5

parties have exchanged some interrogatory answers and some

6

document production responses, the reality is we are now

7

three months removed from the initial scheduling conference

8

in this case.

9

during that three-month period are about 7 to 9 pages of

Unfortunately while there is

The only documents Harvard has produced

10

documents from the Admissions Office which Your Honor

11

suggested they give to me because I would be entitled to

12

know the names of the Admissions Office personnel, their job

13

duties and their responsibilities.

14

In addition to those few pages which it took three

15

weeks to receive we have also received some information on

16

geographic areas or dockets for their alumni interviewers

17

but that's it.

18

So the rate of production in this case so far from

19

Harvard is equal to roughly one page per month for each

20

month that this case has been pending.

21

before the Court seeking a stay of the entire action based

22

on Fisher II which when you get into Fisher II briefing and

23

decision, you will see it really is the U.S. Supreme Court

24

saying the Fifth Circuit apparently did not apply the

25

standard which the Supreme Court had instructed them to

And now they come

26

1
2

apply.
The discovery in this case is going to be broad

3

sweeping.

4

conference and tried to portray this as plaintiff had the

5

temerity to request copies of 145,000 application files.

6

That was not the case.

7

requested copies of every application file over the

8

four-year period.

9

Harvard a random sampling proposal of application files

10

segregated by race for each of the four primary racial

11

categories which constitute a minimum of 10 percent of the

12

student body at Harvard.

13

applications --

14
15
16

Now, Harvard came to you at the initial status

Plaintiff has never formally

In fact, what we had done was provide to

THE COURT:

We requested four percent of the

The number is still huge.

I am

looking for it but it is -MR. SANFORD:

It is 6400 files over a

17

four-year admission cycle to root out invidious

18

discrimination.

19

which is exactly what Harvard had offered to provide in the

20

Joint Statement filed with this Court in writing prior to

21

the initial scheduling conference that we had on April 30th.

It is a statistically significant sampling

22

Now what Harvard is doing, as we have pointed out

23

in our motion -- I'm not trying to argue the motion on its

24

merits -- is they would like to offer us one-tenth of one

25

percent which is 160 files, 80 of which they cherrypick and

27

1

then say we can take the others.

That is what we've been

2

facing in discovery.

3

document in response to a document production request served

4

months ago.

They have not produced a single

5

And it is unfortunate but I had pointed out to the

6

Court at the initial scheduling conference my concerns that

7

we might very well experience not only these types of delays

8

but calculated decisions not to produce enough admissions

9

files so they could attack any expert witness on the basis

10

that it was not a statistically significant sample.

11

So at this stage, given the breadth of the two, the

12

first two counts of the Complaint, I don't see any way that

13

we could possibly fashion a partial stay with Harvard

14

because the breadth of discovery is so broad and the

15

discovery is so straightforward in our request with the four

16

percent of the application files.

17

So with that, Your Honor, I would suggest we will

18

meet, we will confer with Harvard to see if it is possible;

19

but given the track record of what we've seen in

20

negotiations so far, it took us over a month after the

21

initial scheduling conference to agree on a protective

22

order.

23

as a shield and be over-inclusive on what they designate as

24

confidential when in reality a simple Google Internet search

25

will yield the same information, either from the Harvard

Now we see Harvard wants to use the protective order

28

1

Gazette, the Harvard Crimson, the New York Times, or the

2

Boston Globe.

3

So they've been extremely reluctant to produce

4

anything in this case yet publicly available the information

5

is out there.

6

So if we were to issue some kind of a partial stay

7

of discovery, we'd want to seek to limit the perimeters of

8

discovery, we wouldn't get a single document out of Harvard,

9

which is really where we are at this point in response to

10
11

our document production request.
So I would simply urge the Court please to take

12

that into consideration when trying to fashion, if the Court

13

is so inclined, some kind of a partial stay.

14

in this case is very broad sweeping.

15

submit that sampling four percent of the application files

16

is a very narrow directly-targeted approach that included

17

random sampling supported by an expert's affidavit and that

18

is now going to open the door for Harvard to come back and

19

reiterate what I had said at the initial scheduling

20

conference which is they will try to claim there was enough

21

of, you know, further confidentiality.

22

The discovery

And I would also

Thank you, Your Honor.

23

MS. ELLSWORTH:

24

THE COURT:

25

MS. ELLSWORTH:

May I respond briefly?

Yes.
Thank you.

29

1

So I would just like to, I take on the suggestion

2

that Harvard has been dragging its feet here.

As I said,

3

there has been a lot of discovery that has happened.

4

Document productions will be ready to begin, you know, in

5

the event that the Court doesn't stay all document

6

production.

7

for the Court to grant Fisher II in the hopes that we would

8

never have to produce any documents.

9

documents that are being requested here, it's been referred

It's not that we've been sitting around waiting

At the same time the

10

to as broad sweeping and with great breadth.

11

for overbroad, the requests that have been made, and

12

particularly I would add, as Your Honor has commented, the

13

number of applicant files, the 6400 is in the document

14

requests proposed by plaintiff, simply a preliminary sample

15

to lead to a much larger number which Your Honor had, at the

16

initial scheduling conference had indicated a lack of

17

interest in providing.

18

that that is necessary or appropriate, from a pure burden

19

standpoint, and also, of course, because of the very serious

20

privacy concerns.

21

It is we think

And certainly Harvard does not agree

We are here without any documents to produce in

22

part because Harvard in its responses which were filed well

23

over a month ago made a proposal.

24

that Harvard could choose and 80 that SFFA would be in a

25

position to choose.

We proposed 160 files, 80

That was our proposal for the files.

30

1

Instead of engaging in that proposal SFFA has filed

2

a Motion to Compel.

Now, that is their right and we will

3

respond in due course but that has put the brakes on any

4

ability to talk about any possible changes to that number.

5

And, again, we will respond with our own argument as to why

6

we think that number is appropriate and why we think that

7

the plaintiff will be able to do everything that its expert

8

contends that they need to do with the information that

9

Harvard has already agreed to produce.

10

Our response --

11

THE COURT:

12

Hold on a second.

Mr. Sanford, what are you thinking you are going to

13

get out of the actual application files that you are not

14

going to get out of the database they're offering to

15

provide?

16
17

MR. SANFORD:

Mr. Consovoy could address that

directly, Your Honor, if he may?

18

MR. CONSOVOY:

So the files are the heart of

19

the case.

And I think you'll see from our papers the answer

20

to your question, Your Honor, that if you deny a

21

statistically significant sample of files, what you're

22

denying is the right to bring expert testimony.

23

essentially what the ruling is.

24

are going to do, Harvard -- I'm going to speak in

25

generalities here because we're under a protective order and

That's

Because what the experts

31

1

there are things in the deposition that I can't get to in

2

open court but Harvard claims that it's a holistic system.

3

I think you heard Mr. Waxman say the word "holistic" more

4

times than I can count.

5

times than any of us can count.

6

Certainly in their papers more

And the point of that, the point of their argument

7

is that you can look at the numbers but the numbers don't

8

tell you what is actually going on overall with the choice

9

of applicants, that everyone is looked at as a whole person,

10

that it's not just the numbers, that race is a contextual

11

factor and that there is an evaluation that goes on.

12

why they have training materials.

13

numbers that got someone into Harvard, they wouldn't have

14

readers and they wouldn't have reader training materials

15

because they're trained to read these applications as a

16

whole.

17

That's

If it was just the

The fundamental question here is do the scores add

18

up to their reasons which is sort of the classic civil

19

rights question, right.

20

don't deny women promotions, right, because they're women,

21

they actually just didn't do as well in their interviews.

22

And they have interview notes, right.

23

expert analysis to examine the files, right, and to see

24

whether the notes actually add up to a neutral examination

25

what they're saying.

So if Walmart has, Walmart says we

That is a routine

32

1

What we have here are essays.

2

recommendations.

3

underlying material that leads to the question of what is

4

going on here.

5

We have review notes.

We have
We have all the key

Now, if Harvard wants to, and we don't want this,

6

if Harvard wants to say we'll give you the numbers and we'll

7

rise or fall with the numbers, again, we oppose, we think

8

that's not the appropriate way for the Court to build the

9

kind of record that ultimately the Appellate Courts are

10

going to ask me and Mr. Waxman at a podium about.

11

won't have answers if we don't have the materials.

12

THE COURT:

And we

I am not suggesting you're not

13

going to get some or all of the applications.

14

wondering if there is some place we can start, in light of

15

the interveners and Fisher II --

16

MR. CONSOVOY:

17

THE COURT:

I am

Sure.

-- where we can get, start getting

18

to the heart of what you are looking for.

19

suggesting you are not going to get the applications.

20

MR. CONSOVOY:

21

THE COURT:

I am not

Oh, right.

I would hate to have you up in

22

front of that podium being embarrassed that I have created

23

a --

24
25

(Laughter.)
MR. CONSOVOY:

And so, you know, ultimately, I

33

1

think, in response to our motion we would like to hear from

2

Harvard.

3

give over all of the files.

4

significant sample.

5

okay, that is a somewhat reasonable request.

6

with that, right?

7

Harvard said to the Court please don't make us
We'll give a statistically

We went back to our expert and said,
Can you work

And the expert said yes, we can.

Let us tell you, given the volume of applications,

8

it's not our fault that Harvard gets 37,000 applications a

9

year.

The experts have to tell us from an, I won't say

10

"scientific" but, you know, from a matter of expertise how

11

many they need to draw reliable statistical conclusions from

12

that.

13

And this is what they're telling us.
Now, if Harvard had an expert who can say that

14

experts can draw reliable statistical conclusions about a

15

37,000-person process based on non-randomly selected, not

16

stratified by race, 160 files, I would like to hear from

17

that expert and then I think we could have a realistic

18

conversation about their position and our position.

19

Right now their position is, well, we said

20

statistically significant but we meant representative but

21

not really representative because we want to cherrypick half

22

of them so really what we're saying is you get nothing.

23
24
25

THE COURT:

Okay.

So let's do this --

Mr. Waxman, do you want to say something?
MR. WAXMAN:

I mean, since -- I think I've

34

1

listened quite long enough to opposing counsel's

2

characterizations of what I had said and what we've done.

3

They have filed a Motion to Compel attaching an

4

expert's declaration in due course, on time, as we have

5

filed -- as we have responded to every single discovery

6

request in this case, we will respond with our own

7

explanation for what we think is or isn't appropriate in the

8

event that this type of discovery is permitted to go

9

forward.

10

I do want to say that this very discussion, which

11

is a small, small, small subset of the kinds of disputes

12

that will come up if and when discovery does go forward full

13

steam just underscores how important -- how pointless it is

14

to have the discussion about what is or isn't relevant or

15

what may or may not be necessary, either for them to

16

discover or for us to produce in order to prove our case

17

under whatever the standard is that the Supreme Court

18

explicates until we have that standard but Your Honor was, I

19

thought, clear that we weren't going to have an argument on

20

the Motion to Compel since our time to respond hasn't

21

occurred yet and we haven't responded.

22

And I just want to hesitate to say, if Your Honor

23

wants to hear argument about this, you know, whether 6400 is

24

right or what is representative or what our database, if and

25

when discovery proceeds, will show in advance of us filing

35

1

our response, I can do it.

2

THE COURT:

3

that position.

4

No, I am not going to put you in

to do today.

5

That is not fair.

All right.

That is not what I want

So the Motion to Compel we'll keep

6

under, we will hold aside until Harvard has an opportunity

7

to respond.

8

to take our time with it and look at it thoroughly.

9

I think it is an important motion, we are going

That being said, if you have other motions on the

10

protective order and things that can be resolved quickly,

11

shoot them over and we will do it, okay.

12

hung up on those sorts of motions.

13

substantive.

14

you know, the protective orders, just shoot them over and if

15

there is -- I don't have any reason to believe that they are

16

withholding information inappropriately; but if they are, we

17

will deal with it quickly.

18

public information is going to be held aside under a

19

confidentiality order or a protective order.

20

I don't want this

This one is more

We are going to take some time with it.

But,

It is not going to be that

In terms of the Motion to Stay, we will review it

21

on the merits and rule on it in due course.

If anyone -- I

22

won't do anything with it for the next week and if anybody

23

wants to take that week to sort of file something jointly or

24

separately and that document will be something to the effect

25

of if you are inclined to grant the partial stay, this is

36

1

what we propose.

2

actually agreeing to a partial stay but if you could give me

3

some broad outlines and, again, unencumbered by too much

4

thought (ph.), my proclivity is if we can find things that

5

we can go forward on without, sort of under the Fisher cloud

6

and the intervenor's cloud without prejudicing anybody too

7

much and keeping the case moving, that is what I am

8

philosophically interested in doing.

9

I will not take it to mean that anyone is

Now, I may read your briefs and they may completely

10

change my mind; but in the interim if you want to submit

11

something that says if there is going to be a partial stay,

12

this is what we would like or we can live with or however

13

you want to phrase it, why don't you take a week to do that

14

and I won't rule on the motion on that.

15

Now, we did set another status three months out

16

for, I am actually sort of, I mean -- so if the case is

17

stayed, we won't need to meet.

18

where a ruling on the Motion to Compel, I assume you are

19

going to need another hearing on that so why don't we not

20

set another hearing for three months forward on the

21

assumption that we will be here in the interim on one of

22

these motions anyway.

23

everyone?

Okay?

24

MR. CONSOVOY:

25

MR. WAXMAN:

And if we are to a point

Is that all right with

Yes, Your Honor.

Yes, Your Honor.

37

1
2
3
4

THE COURT:

Anything else I can help you with

today or is that it?
Okay.

The case is recessed then.

THE CLERK:

All rise.

Thank you.

Court is adjourned.

5
6

(WHEREUPON, the proceedings were recessed at 2:45

7

p.m.)

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
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25

38

C E R T I F I C A T E

I, Carol Lynn Scott, Official Court Reporter for
the United States District Court for the District of
Massachusetts, do hereby certify that the foregoing pages
are a true and accurate transcription of my shorthand notes
taken in the aforementioned matter to the best of my skill
and ability.

/S/CAROL LYNN SCOTT

_________________________________________
CAROL LYNN SCOTT
Official Court Reporter
John J. Moakley Courthouse
1 Courthouse Way, Suite 7204
Boston, Massachusetts 02210
[phone]

DATE: July 30, 2015