United States District Court, D. Massachusetts
Kimberly Theidon, Plaintiff: Elizabeth A. Rodgers, LEAD
ATTORNEY, Rodgers, Powers & Schwartz, Boston, MA; Philip J.
Gordon, LEAD ATTORNEY, Gordon Law Group, Boston, MA; Linda M.
Correia, Correia & Puth, PLLC, Washington, DC.
President and Fellows of Harvard College, Defendant: Martin F
Murphy, LEAD ATTORNEY, Jennifer Ann Kirby, Lyndsey M. Kruzer,
Robert A. Fisher, Foley Hoag LLP, Boston, MA.
ORDER ON DEFENDANT'S MOTION FOR PROTECTIVE ORDER
AND PLAINTIFF'S MOTION TO COMPEL (DOC. NOS. 28,
Sorokin, United States District Judge.
plaintiff Kimberly Theidon (" Theidon" ) brings
this action against Harvard University and the President and
Fellows of Harvard College (collectively, "
Harvard" ). Theidon, formerly an Anthropology professor
at Harvard, alleges that Harvard denied her tenure in 2013
because she is a woman and in retaliation for comments she
made regarding Harvard's response to Title IX issues on
campus. Doc. No. 1. Specifically, Theidon alleges sex
discrimination in violation of Title VII of the Civil Rights
Act and Mass. Gen. L. c. 151B and retaliation in violation of
Title IX of the Education Amendments of 1972 and Mass. Gen L.
c. 151B. Id. Before the Court are two motions.
Theidon moves to compel Harvard's production of (1)
certain electronically stored information (" ESI" )
in its native format without any process to eliminate
duplicates; and (2) any ESI associated with eight custodians
identified by Theidon. Doc. No. 31. Harvard moves for a
protective order aimed at maintaining the confidentiality of
certain individuals involved or discussed in the course of
Theidon's tenure review. Doc. No. 28. For the reasons
stated below, Theidon's motion is ALLOWED IN PART and
DENIED IN PART, and Harvard's motion is DENIED.
HARVARD'S MOTION FOR A PROTECTIVE ORDER
seeks three measures to protect the confidentiality of
certain information used in Theidon's tenure process.
First, Harvard wants to redact the names and identifying
information of sixteen scholars from other universities and
thirteen members of Harvard's Anthropology department who
provided letters to Harvard that evaluated Theidon's
scholarship and, in the case of the outside scholars,
compared Theidon's achievements to those of other
scholars designated by Harvard or the letter writer. Doc. No.
29 at 1-2. Second, Harvard requests redaction of the names of
the scholars to whom Theidon was compared (the "
comparands" ) in the letters provided by outside
as is its practice, Harvard convened an ad hoc
committee to consider Theidon's tenure case which
included ten people, three of whom were scholars from other
universities and two of whom were Harvard professors from
outside the Anthropology department.
Doc. No. 29 at 2, 7. Harvard seeks to disclose the names of
the ad hoc committee members on an attorneys'
eyes only basis. Id. at 2. The identities of these
individuals would be shielded from all but attorneys at least
through summary judgment. Id.
protection sought by Harvard is governed by recently amended
Fed.R.Civ.P. 26(b)(2)(C), which provides in relevant part
that " [o]n motion or on its own, the court must limit
the frequency or extent of discovery otherwise allowable by
these rules or by local rule if it determines that . . . the
discovery sought is unreasonably cumulative or duplicative,
or can be obtained from some other source that is more
convenient, less burdensome, or less expensive."
Fed.R.Civ.P. 26(b)(2)(C). The same rule limits discovery to
" any nonprivileged matter that is relevant to any
party's claim or defense and proportional to the needs of
the case, considering the importance of the issues at stake
in the action, the amount in controversy, the parties'
relative access to information, the parties' resources,
the importance of the discovery in resolving the issues, and
whether the burden or expense of the proposed discovery
outweighs its likely benefit." Fed.R.Civ.P. 26(b)(1).
Fed.R.Civ.P. 26(c) further provides that a party may seek a
protective order " to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or
expense" by " forbidding inquiry into certain
matters, or limiting the scope of disclosure or discovery to
certain matters" or by requiring certain confidential
information " not be revealed or be revealed only in a
specified way." Fed.R.Civ.P. 26(c).
Court must consider whether each category of information
Harvard seeks to protect " warrant[s] conferral of any
special consideration" and " the type and kind of
protection the law affords." Cusumano v. Microsoft
Corp., 162 F.3d 708, 714 (1st Cir. 1998). This process
balances Theidon's need for the information at issue
against Harvard's " interest in confidentiality and
the potential injury to the free flow of information that
disclosure portends." Id. at 716.
Court turns first to the scholars, internal and external, who
wrote letters evaluating Theidon's scholarship. Harvard
makes a strong argument that the candid assessments offered
by the letter writers pursuant to an assurance of
confidentiality are crucial to its tenure process. Doc. No.
29 at 8-13; see University of Pa. v. E.E.O.C., 493
U.S. 182, 193, 110 S.Ct. 577, 107 L.Ed.2d 571 (1990) (stating
that the court need not question the " assertion that
confidentiality is important to the proper functioning of the
peer review process under which many academic institutions
operate" ). Similarly, the letter writers themselves
have in interest in remaining anonymous from all but those
people directly involved in the tenure decision. For example,
at some point a reviewer might work with the candidate whom
she reviewed, or a reviewer may find ...