Students for Fair Admissions, Inc. v. President & Fellows Of Harvard Coll. Harvard Corp.

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STUDENTS FOR FAIR ADMISSIONS, INC., Plaintiff, v. PRESIDENT AND FELLOWS OF HARVARD COLLEGE HARVARD CORPORATION, Defendant.

Civil Action No. 14-cv-14176-ADB

United States District Court, D. Massachusetts

April 27, 2023

MEMORANDUM AND ORDER ON REPORTERS COMMITTEE MOTION FOR RECONSIDERATION

ALLISON D. BURROUGHS U.S. DISTRICT JUDGE

Plaintiff Students for Fair Admissions, Inc. (“SFFA”) filed this action against Defendant President and Fellows of Harvard College (“Harvard”), alleging that Harvard's undergraduate admissions process violates Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d et seq. [ECF No. 1]. The Court held a 15-day bench trial from October 15, 2018 to November 2, 2018. See Students for Fair Admissions, Inc. v. President &amp Fellows of Harvard Coll. (Harvard Corp.), 397 F.Supp.3d 126, 132 (D. Mass. 2019), aff'd sub nom. Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 980 F.3d 157 (1st Cir. 2020), cert granted, 142 S.Ct. 895 (U.S. Jan. 24, 2022) (No 20-1199). On September 30, 2019, the Court issued its Findings of Fact and Conclusions of Law and entered judgment for Harvard on all counts. Id. SFFA appealed the Court's judgment, first to the First Circuit, and after the First Circuit affirmed, Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 980 F.3d 157 (1^st Cir. 2020), to the Supreme Court. The Supreme Court granted certiorari on January 24, 2022 and heard arguments on October 31, 2022, Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 142 S.Ct. 895 (argued Oct. 31, 2022). The Supreme Court has not issued its ruling.

On December 7, 2022, the Reporters Committee for Freedom of the Press (“Reporters Committee”) moved to intervene for the limited purpose of unsealing the transcripts of sidebar proceedings during trial (“Motion to Intervene”), [ECF No. 703], which the Court had kept under seal as a matter of course, see [ECF No. 654 (Trial Tr. Day 14) at 184:10-12]. On December 19, 2022, the Court ruled that all but a few limited excerpts of the sidebar transcripts would be unsealed,^[1] and finding that it had essentially provided the relief requested, denied the Motion to Intervene (“December 19 Order”). [ECF No. 711]. Currently pending before the Court is the Reporters Committee's Motion for Reconsideration of the December 19 Order (“Motion for Reconsideration”). [ECF No. 713]. For the reasons set forth below, the Reporters Committee's Motion for Reconsideration is GRANTED in part and DENIED in part.

I. BACKGROUND

In November 2022, the Court received a letter from a non-party requesting that the Court unseal the sidebar transcripts, [ECF No. 691],^[2] and then several more letters from other nonparties, including the Reporters Committee, supporting the request, [ECF Nos. 693, 698-99]. Both parties responded, with Harvard requesting that the full sidebar transcripts remain under seal, [ECF No. 692], and SFFA requesting that more limited portions remain under seal, [ECF No. 694]. The Court held a November 21, 2022 status conference, attended by non-parties, at which the Court directed the parties to, by December 9, 2022, meet and confer to identify for the Court which portions of the sidebar conferences they wished to remain under seal. See [ECF No. 700]. A second status conference was set for December 9, 2022. [Id.]. After meeting and conferring, the parties filed letters on December 5, 2022, explaining that they agreed that one excerpt should remain under seal, but disagreed as to other excerpts, which Harvard asserted should remain under seal and SFFA asserted should not. [ECF Nos. 701-02].

On December 7, 2022, the Reporters Committee moved for leave to intervene, pursuant to Federal Rule of Civil Procedure 24(b), “for the limited purpose of asserting the rights of the press and public to access sealed judicial records in this matter, including transcripts of the sidebar proceedings held during trial[.]” [ECF No. 703 at 1].^[3] The Motion to Intervene specifically requested that the Court:

(1) order that the parties file on the public docket the portions of the Sidebar Transcripts that neither party seeks to maintain under seal, with proposed redactions accompanied by justifications detailed enough that the Reporters Committee and other representatives of the press and public may meaningfully respond in writing;

(2) provide for a subsequent hearing on the merits at which representatives of the press and public can be heard, alongside the parties; and (3) thereafter, issue a final, public written ruling-supported by “particularized findings” that are “specific enough to permit a reviewing court to determine whether sealing was appropriate”-identifying those discrete portions of the Sidebar Transcripts, if any, that the Court determines must remain sealed to protect an overriding interest.

[ECF No. 703 at 4 (quoting United States v. Kravetz, 706 F.3d 47, 60 (1st Cir. 2013))]. The Motion to Intervene was opposed by Harvard and unopposed by SFFA. See [id. at 6; ECF No. 726 at 4:2-17].

At the second status conference on December 9, 2022 regarding the parties' positions on redactions, which was sealed, the Court scheduled a second, sealed status conference for December 15, 2022 and a separate, public hearing to occur the same day. [ECF No. 708]; see [ECF No. 717]. At the status conference on the morning of December 15, 2022, the Court informed the parties of its proposed redactions to the sidebar transcripts and gave the parties an opportunity to respond and to put any objections on the record. [ECF No. 726]. At the public hearing that followed, the Court again explained its planned redactions, and allowed non-parties to be heard. During the hearing, the Reporters Committee and another non-party asked the Court to unseal the transcripts of the December 9, 2022 and December 15, 2022 status conferences. See [ECF No. 717].

On December 19, 2022, the Court entered an order with its final ruling regarding which of the contested sidebar excerpts would be unsealed and which would remain under seal. [ECF No. 711]. In sum, the Court ruled that the majority of the sidebar transcripts would be unsealed, but that limited excerpts from three trial days would remain under seal. [Id.]. The December 19 Order provided the legal standard the Court applied in reaching its ruling, described the three categories of information being kept under seal, and explained the Court's findings as to why it was keeping each category under seal. [Id.]. The Order also noted that the parties had agreed that the bulk of the sidebar transcripts should be unsealed, but that one excerpt should remain under seal. [Id.]. The Court directed the parties to file on the public docket, within two business days, the sidebar transcripts redacted in accordance with the Order, [id.], which the parties did on December 21, 2022, [ECF No. 712].

In the same Order, the Court denied the Reporters Committee's Motion to Intervene as moot without prejudice. [ECF No. 711]. On December 29, 2022, the Reporters Committee filed its Motion for Reconsideration. [ECF No. 713]. SFFA filed a response, stating that it had no position on the Motion for Reconsideration, but re-stating its objection to unsealing identifying information about applicants. [ECF No. 719]. Harvard did not respond to the Motion for Reconsideration.

On January 11, 2023, a non-party renewed the request made at the December 15, 2022 public hearing that the Court unseal the transcripts from the December 9, 2022 and December 15, 2022 sealed status conferences with the parties. [ECF No. 717]. Following consultation with the parties, the transcript for the December 9, 2022 status conference was unsealed on January 13, 2023, see [ECF No. 721], and on January 18, 2023, the transcript from the December 15, 2022 status conference was filed on the public docket with limited redactions, see [ECF No. 726].

II. DISCUSSION

“A federal district court has the discretion to reconsider interlocutory orders and revise or amend them at any time prior to final judgment.” Davis v. Lehane, 89 F.Supp.2d 142, 147 (D. Mass. 2000); see Fed.R.Civ.P. 54(b); see also Perez-Ruiz v. Crespo-Guillen, 25 F.3d 40, 42 (1st Cir. 1994) (“Interlocutory orders . . . remain open to trial court reconsideration ....”).

A. Intervention

The December 19 Order unsealed the vast majority of the sidebar transcripts. Once the Court unsealed those documents, it denied as moot, but without prejudice, the Reporters Committee's Motion to Intervene for the limited purpose of unsealing court records, [ECF No. 703], on the assumption that the Court had addressed the issues that motivated the motion. The Motion for Reconsideration, however, indicates that the Reporter Committee believes that the relief afforded is incomplete. See [ECF No. 713]. Without reaching the merits of the arguments made by the Reporters Committee in its Motion for Reconsideration, the Court will, in the exercise of its discretion, GRANT permissive intervention to allow the Reporters Committee to participate in the pending appeals concerning sealing. See Fed.R.Civ.P. 24(b)(1)(B) (the court “may[,]” on a timely motion, “permit anyone to intervene who . . . has a claim or defense that shares with the main action a common question of law or fact.”); In re Bos. Sci. Corp. ERISA Litig., 254 F.R.D. 24, 33 n.82 (D. Mass. 2008) (“Permissive intervention is ‘wholly discretionary,' and a court should consider whether intervention will prejudice the existing parties or delay the action.” (quoting In re Sonus Networks, Inc. Sec. Litig., 229 F.R.D. 339, 345 (D. Mass. 2005))).

B. Unsealing Sidebar Transcripts and Related Materials

As to the merits, prior to the issuance of the December 19 Order the...