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Former Harvard Professor Gains Access to ESI

Posted on February 29th, 2016

Plaintiff in Theidon v. Harvard University, et. al., Case No. 15-10809 (D. Mass., Feb. 4, 2016), a former anthropology professor at Harvard, sued the university for sex discrimination and retaliation after she was denied tenure. During discovery, Plaintiff sought production of certain ESI in native format without deduplication, as well as access to ESI associated with eight separate custodians she identified. In turn, Defendants sought a protective order to 1) redact the names and identifying information of 16 scholars from other schools, plus 13 members of Harvard’s anthropology department who provided evaluations and opinions of Plaintiff; 2) redact the names of scholars to whom Plaintiff was compared by the evaluators and 3) provide the list of names on the ad hoc committee that considered Plaintiff’s tenure, but only to the case’s attorneys.

With regard to Harvard’s request for a protective order, the court looked at the recent amendments to FRCP 26(b)(2)(C) as well as case law and determined that Defendants’ interests had to be balanced against Plaintiff’s need to access evidence. The court denied the request for protective order, as there is no privilege for tenure peer review materials, and denying Plaintiff access to the materials is “tantamount to thwarting her case at trial.”

With respect to Plaintiff’s Motion to Compel, the court looked at the issues separately. Harvard sought to eliminate duplicates from the ESI it intended to produce using an automated process by which duplicate emails are eliminated using the emails’ “hash code”, or “digital fingerprints”. Harvard proposed to produce these deduplicated emails with a spreadsheet showing metadata for each document. Plaintiff argued that the metadata fields Defendants sought to use to identify the duplicates were insufficient and that the use of a spreadsheet was cumbersome. The court denied Plaintiff’s motion to compel this information, as she did not demonstrate that Harvard’s proposal was unreasonable; review and production of duplicate documents is burdensome and contrary to local rules.

The court partially granted Plaintiff’s motion, however, as to her request for responsive ESI from eight custodians. Harvard objected that the proposed custodian list was unreasonable, as some of the individuals named therein did not participate in the tenure decision, and some were not Harvard employees during the relevant time. The court denied the motion as to three of the custodians without prejudice while the parties determined the custodians’ role in the tenure discussions and to one of the other custodians as irrelevant. However, the court granted the motion as to the remaining custodians.

ILS – Plaintiff Electronic Discovery Experts

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