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Theidon v. Harvard University

United States District Court, D. Massachusetts

February 4, 2016

KIMBERLY THEIDON, Plaintiff,
v.
HARVARD UNIVERSITY, and the PRESIDENT AND FELLOWS OF HARVARD COLLEGE, Defendants

          For 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.

         For 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.

Page 334

          ORDER ON DEFENDANT'S MOTION FOR PROTECTIVE ORDER AND PLAINTIFF'S MOTION TO COMPEL (DOC. NOS. 28, 31)

         Leo T. Sorokin, United States District Judge.

         I. INTRODUCTION

         The 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.

         II. HARVARD'S MOTION FOR A PROTECTIVE ORDER

         Harvard 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 scholars. Id.

         Third, 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.

Page 335

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.

         The 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).

         The 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.

         The 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 ...


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