314 F.R.D. 333
D. Mass.2016Background
- Plaintiff Kimberly Theidon, a former Harvard Anthropology professor, alleges sex discrimination (Title VII, Mass. Gen. L. c. 151B) and Title IX and state-law retaliation arising from Harvard’s denial of tenure in 2013.
- Discovery disputes: Harvard seeks protective relief to redact or limit disclosure of identities involved in the tenure review (external reviewers, department reviewers, comparands, and ad hoc committee members); Theidon seeks unredacted peer-review materials and identities.
- Theidon also moved to compel production of electronically stored information (ESI) in native form without de-duplication and requested searches of ESI from eight specific custodians.
- Harvard proposes automated de-duplication with production of a metadata spreadsheet and limited willingness to produce duplicates on request.
- The parties disputed relevance of ESI from several custodians (including comparators, a Title IX coordinator, the Business School dean, and non-Harvard contractors/employees).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Protective order to redact identities of internal and external peer reviewers | Theidon needs reviewer identities to test bias, compare credentials, track contacts, and develop evidence for summary judgment/trial | Harvard asserts confidentiality is essential to candid peer review and requests redaction except to counsel or on attorneys’‑eyes‑only basis | Denied: reviewers’ identities must be produced to Theidon (subject to protective order against public disclosure) |
| Redaction of comparands (scholars used for comparison in letters) | Theidon needs comparand identities to evaluate comparative assessments and potential bias | Harvard offered no strong confidentiality interest for comparands; they were unaware their work was cited | Denied: comparand identities must be disclosed to Theidon (public disclosure may still be restricted) |
| Attorneys’-eyes‑only designation for ad hoc committee members | Theidon says access is essential to assist counsel and develop litigation strategy; ad hoc composition is central to her theory that the committee was stacked | Harvard seeks to limit disclosure to counsel to protect members’ privacy and candid process | Denied: attorneys’‑eyes‑only inappropriate; identities must be produced to Theidon (with public filing protections) |
| ESI production: de-duplication and custodian searches | Theidon demands production of all duplicates and ESI from eight custodians (including comparators, Title IX coordinator, Business School dean, and contractor) | Harvard seeks automated de-duplication, will produce metadata spreadsheet and duplicates on request; objects to certain custodians as irrelevant or outside timeframe | In part: De-duplication procedure accepted (Theidon may request specific duplicates and seek relief later if spreadsheet is inadequate). Custodian ESI: production compelled for relevant custodians (e.g., Title IX coordinator, Business School dean, certain dept. member); comparators’ custodians deferred without prejudice; contractor (Menton) denied; where Harvard lacks ESI it may so state. |
Key Cases Cited
- University of Pennsylvania v. Equal Employment Opportunity Commission, 493 U.S. 182 (1990) (no testimonial privilege for peer review materials; confidentiality interest does not automatically block disclosure)
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) (non‑movant must set forth specific facts showing a genuine issue for trial)
- Cusumano v. Microsoft Corp., 162 F.3d 708 (1st Cir. 1998) (court balances discovery needs against confidentiality and decides appropriate protections)
- Krolikowski v. University of Massachusetts, 150 F. Supp. 2d 246 (D. Mass. 2001) (peer review materials and reviewer identities may be relevant in discrimination suits)
- Schneider v. Northwestern University, 151 F.R.D. 319 (N.D. Ill. 1993) (reviewer identities ordered disclosed post University of Pennsylvania decision)