Ruling Opens Tenure Process to Discovery

By: Eric T. Berkman, Massachusetts Lawyers weekly, February 24, 2016

A federal judge has found that a professor who sued Harvard University for sex discrimination and retaliation after being denied tenure was entitled to discovery of materials relating to specific individuals involved in her tenure process.

Plaintiff Kimberly Theidon, now a professor at Tufts University, claimed that defendant Harvard denied her tenure in retaliation for her public support of students who had complained about the school’s handling of reports of sexual assault on campus. [Plaintiff Theidon is represented by Linda M. Correia of Correia & Puth, PLLC, with co-counsel Elizabeth A. Rodgers of Rodgers, Powers & Schwartz and Philip J. Gordon of Gordon Law Group.]

Harvard sought a protective order shielding any information that would identify Harvard faculty and academics at other institutions who evaluated the plaintiff’s scholarship or participated in the tenure decision.

Harvard argued that the information it sought to protect warranted “special consideration” because disclosure of such materials would undermine the assurance of confidentiality it provides peer reviewers who participate in the tenure process.

U.S. District Court Judge Leo T. Sorokin disagreed.

“The information at issue is essential to Theidon’s effort to acquire probative evidence, an interest that outweighs Harvard’s interest in confidentiality, particularly where Harvard’s interest cannot, according to binding precedent, shield the identities of the letter writers at trial,” Sorokin wrote, referring to the U.S. Supreme Court’s 1990 decision in University of Pa. v. E.E.O.C. “Thwarting Theidon’s case through discovery and summary judgment by denying her access to evidence possessed by her adversary is tantamount to thwarting her case at trial.”

The plaintiff is seeking to determine whether the letter­-writers recommended other candidates for tenure and whether those candidates received it, and whether Harvard’s president or other Harvard representatives contacted the letter-writers for any purpose. Meanwhile, the plaintiff is seeking to identify any potential biases among those who evaluated her.

“Although Harvard argues that the proposed protective order would be in place only through summary judgment, shielding identifying information about the letter writers, both external and internal, through the discovery process handicaps Theidon’s ability to marshal facts that support her claims and raise issues necessitating a trial, important components of both summary judgment and trial,” the judge said, adding that the Supreme Court made clear in University of Pa. that there is no privilege against disclosure of tenure peer review materials.

Sorokin similarly denied Harvard’s request to shield the identity of those scholars with whom the plaintiff’s work had been compared, pointing out that the university’s interest in obtaining candid assessments from reviewers does not extend to those unaware that they have been cited and discussed in the tenure process.

Finally, the judge denied Harvard’s request to provide the identities of ad hoc committee members on an attorneys’­ eyes­ only basis.

“Attorneys’ eyes only disclosure is appropriate only in limited circumstances, such as cases involving trade secrets, because it hinders the plaintiff’s ability to aid counsel in the review of the evidence and to determine her litigation strategy in light of it,” Sorokin said.

Read the Massachusetts Lawyers Weekly article here.