STUDENTS FOR FAIR ADMISSIONS, INC. v. UNIVERSITY OF NORTH CAROLINA, et al

Filing 33

Rule 26(f) Report (Individual). by ROGER AIKEN, W. LOUIS BISSETTE, JR, JAMES W. DEAN, JR, STEPHEN M. FARMER, JOHN C. FENNEBRESQUE, CAROL L. FOLT, H. FRANK FRAINGER, HANNAH D. GAGE, ANN B. GOODNIGHT, PETER D. HANS, THOMAS J. HARRELSON, HENRY W. HINTON, JAMES L. HOLMES, JR, RODNEY E. HOOD, W. MARTY KOTIS, III, G. LEROY LAIL, SCOTT LAMPE, STEVEN B. LONG, JOAN G. MACNEILL, HARI H. MATH, MARY ANN MAXWELL, W. EDWIN MCMAHAN, W.G. CHAMPION MITCHELL, ANNA SPANGLER NELSON, ALEX PARKER, R. DOYLE PARRISH, JOAN TEMPLETON PERRY, THERENCE O. PICKETT, DAVID M. POWERS, ROBERT S. RIPPY, THOMAS W. ROSS, HARRY LEO SMITH, JR, J. CRAIG SOUZA, GEORGE A. SYWASSINK, RICHARD F. TAYLOR, RAIFORD TRASK, III, UNIVERSITY OF NORTH CAROLINA, UNIVERSITY OF NORTH CAROLINA AT CHAPEL HILL, UNIVERSITY OF NORTH CAROLINA BOARD OF GOVERNORS, PHILLIP D. WALKER, LAURA I. WILEY.(SCUDDER, MICHAEL)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
CASE NO. 1:14-CV-954
STUDENTS FOR FAIR
ADMISSIONS, INC.,
Plaintiff,
DEFENDANTS' RULE 26(f) REPORT
v.

UNIVERSITY OF NORTH
CAROLINA et al.,
Defendants.

Pursuant to Fed. R. Civ. P. 26(f) and Local Rules 16.1(b) and 16.3, and in light of
the Joint Stipulation of Dismissal filed by Plaintiff Students for Fair Admissions
("SFFA") on March 20, 2015 (Dkt. 29), Defendants the University of North Carolina
("UNC System"), UNC System President Thomas W. Ross, the UNC Board of
Governors and its individual members, The University of North Carolina at Chapel Hill
(the "University"), University Chancellor Carol L. Folt, University Executive Vice
Chancellor and Provost James W. Dean, and University Vice Provost for Enrollment and
Undergraduate Admissions Stephen M. Farmer respectfully submit this Rule 26(f)
Report.
Counsel for the Defendants and Plaintiff held a Rule 26(f) conference on April 24
and 29, 2015. The Initial Pretrial Conference is scheduled for May 13, 2015.

I.

Preliminary Statement
Plaintiff's Complaint challenges the University's undergraduate admissions

policies under 42 U.S.C. §§ 1981, 1983, and §2000d and the Fourteenth Amendment to
the U.S. Constitution. According to the Complaint, one of Plaintiff's members (identified
only as "Applicant"), who is not named in or a party to this lawsuit, applied for but was
denied admission to the University's 2014 entering class. Plaintiff alleges that the
University's undergraduate admissions process unlawfully discriminates upon the basis of
race or ethnicity and should be replaced by a race-neutral policy.
Defendants have denied these allegations and are confident the University's
undergraduate admissions policy, which permits race and ethnicity to be considered as
one among many factors as part of a holistic review of each applicant, reflects careful
adherence to the legal framework adopted in recent years by the Supreme Court of the
United States.
II.

Discovery Plan.
A.

Case Management Track

Defendants respectfully request that this case be assigned to the Exceptional
Case-Management Track under Local Rule 26.1(a)(3), which provides for nine months of
discovery, including expert discovery, and sets forth presumptive limits on interrogatories
(30), requests for admissions (30), and depositions (10). Defendants believe that the
length and limits provided by the Exceptional Track are plenty sufficient to enable ample
discovery in this matter.

Plaintiff may request discovery limitations beyond those of the Exceptional Track
on the basis that the case allegedly involves complex constitutional claims on a matter of
public importance. Defendants respectfully submit that nothing about the Plaintiff's
claims—all of which be assessed and decided under settled Supreme Court precedent—
counsels in favor of deviation beyond the presumptive outer limits of the discovery
parameters and schedule provided for by the Court's Local Rules.
B.

Defendants' Proposed Discovery Plan

Defendants propose the following discovery plan:
1.

Discovery will be needed on the following primary subjects and
topical areas:
(a)

The unnamed Applicant referenced in SFFA's Complaint;

(b)

SFFA as a bona fide membership organization, including but
not limited to its sources of funding, members, structure, and
governance.

(c)

The University's undergraduate admissions policies and
procedures applicable to the entering class for the fall 2014—
the time the Applicant applied but was denied admission;

(d)

Aggregate data regarding the University's admissions
decisions for classes that entered in the fall 2012, fall 2013,
and fall 2014;

(e)

The University's evaluation of applications for first-year
undergraduate admissions for its fall 2014 entering class;

(f)

The University's consideration of race-neutral alternatives
since the fall 2012; and

(g)

Related information necessary to inform the opinions of
expert witnesses.

2.

The University proposes limiting the production of any individual
undergraduate admissions application files to an appropriate and
representative sample from applications submitted for the fall 2014
entering class. The size of the sample and sampling method should
be discussed by the parties and, as necessary, ordered by the Court.

3.

The statute of limitations governing Plaintiff's claims is three years
(N.C.G.S. § 1-52) and thus generally provides the time frame for
discovery on other relevant topics.

4.

Defendants propose that the appropriate track for this case is that
designated in L.R. 26.1(a)(3) as Exceptional.
(a)

The date for the completion of all discovery (general and
expert) will be: February 15, 2016, contingent upon the
availability of witnesses during the discovery period.

(b)

Reports required by Rule 26(a)(2)(B) and disclosures required
by Rule 26(a)(2)(C) are due during the proposed 9-month
discovery period as follows:
(i)

From Plaintiff by November 15, 2015

(ii)

From Defendants by December 16, 2015

(c)

Supplementations under Rule 26(e) are due from both parties
within 14 days of identification of the need for additional
responses.

(d)

The parties may informally grant extensions of time to
respond to discovery without having to seek Court approval,
provided that the parties may not agree without Court
approval to extend the deadline for the conclusion of
discovery or delay the trial of the case.

5.

The parties agree that this case is unlikely to be resolved in
mediation.

6.

Preliminary Deposition Schedule and Discovery Limits.
(a)

Defendants propose that the presumptive limitations in an
Exceptional case of 30 interrogatories and requests for
admission and 10 depositions, including expert depositions
set forth in Local Rule 26.1(a)(3) shall be adhered to.

(b)
7.

Depositions shall be completed within the 9-month time
period proposed above.

Other items.
(a)

Requests to join additional parties or amend pleadings are
due:
(i)

From Plaintiff by June 29, 2015

(ii)

From Defendants by August 11, 2015.

(b)

Initial disclosures pursuant to Fed. R. Civ. P. 26(a)(1)(A) are
due on May 27, 2015—to give the parties the benefit of being
able to consider the outcome of the May 13, 2015 Initial
Pretrial Conference.

(c)

Dispositive motions are due within 45 days of the close of
discovery.

(d)

The parties have discussed special procedures for managing
this case, including reference of the case to a Magistrate
Judge on consent of the parties under 28 U.S.C.§§636(c), or
appointment of a master. Neither party consents.

(e)

Some information in the case may be protected under the
Family Educational Rights and Privacy Act ("FERPA") and
N.C. G.S. 132-1.1(f). The parties will seek a protective order
as necessary from the Court at the appropriate time.

8.

Trial of this matter is expected to take approximately 10-15 days. A
jury trial has been demanded.

Respectfully submitted,

/s/ Michael Scudder
Michael Scudder
Skadden, Arps, Slate, Meagher & Flom,
LLP
155 North Wacker Drive
Chicago, IL 60606-1720
[phone]
E: [e-mail]

ROY COOPER
Attorney General

/s/ Lisa Gilford
Lisa Gilford
Skadden, Arps, Slate, Meagher & Flom,
LLP
300 South Grand Ave.
Suite 3400
Los Angeles, CA 90071
[phone]
E: [e-mail]
Attorneys for Defendants

/s/ Matthew Tulchin
Matthew Tulchin
Assistant Attorney General
NC State Bar No. 43921
E: [e-mail]
NC Department of Justice
Post Office Box 629
Raleigh, NC 27602-0629
T: [phone]
F: [phone]
Attorneys for Defendants

/s/ Stephanie Brennan
Stephanie Brennan
Special Deputy Attorney General
NC State Bar No. 35955
E: [e-mail]

CERTIFICATE OF SERVICE
I hereby certify that on May 4, 2015, I electronically filed the foregoing
DEFENDANTS' RULE 26(f) REPORT with the Clerk of Court using the CM/ECF
system, which will send notification of such filing to the following registered CME/ECF
users:

Thomas R. McCarthy
William S. Consovoy
J. Michael Connolly
CONSOVOY MCCARTHY PLLC
W. Ellis Boyle
ELLIS BOYLE LAW PLLC
Attorneys for Plaintiff
This 4th day of May 2015
/s/ Michael Scudder
Michael Scudder
Skadden, Arps, Slate, Meagher &
Flom, LLP
155 North Wacker Drive
Chicago, IL 60606-1720
[phone]
E: [e-mail]
Attorney for Defendants