Theidon v. Harvard University, et al.

Filing 103

District Judge Leo T. Sorokin: ORDER entered For the foregoing reasons stated in the Order, 93 Plaintiff's Motion to Compelis DENIED and 96 Defendants' Motion to Quash is ALLOWED. (Montes, Mariliz)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
__________________________________________
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KIMBERLY THEIDON,
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Plaintiff,
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v.
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Case No. 15-cv-10809-LTS
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HARVARD UNIVERSITY, et al.,
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Defendants.
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__________________________________________)
ORDER ON PLAINTIFF’S MOTION TO COMPEL
AND DEFENDANTS’ MOTION TO QUASH
September 16, 2016
SOROKIN, J.
For the reasons that follow, Plaintiff’s Motion to Compel (Doc. 93) is DENIED
and Defendants’ Motion to Quash (Doc. 96) is ALLOWED.

I.

PLAINTIFF’S MOTION TO COMPEL
On May 18, 2016, the Court issued an Order stating that “all motions to compel

. . . must be filed no later than 21 days from the date of this Order or the date of receipt of
the formal responses to the discovery request.” Doc. 82 at 6-7. Pursuant to that Order,
on June 8, 2016, Plaintiff Kimberly Theidon filed a motion to compel (Doc. 84) and
Defendants Harvard University (and various parties related to Harvard University) each
filed a motion to compel (Doc. 83). On July 15, 2016, the Court denied Plaintiff’s
motion and allowed Defendants’ motion. Doc. 92. The Court gave three “separate and

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independent” reasons for denying Plaintiff’s motion: (1) the motion did not comply with
Local Rule 37.1(b), despite the Court’s specific admonition to comply in its May 18,
2016, order; (2) Plaintiff’s discovery requests were “substantially overbroad”; and (3)
Plaintiff’s memorandum of law in support of the motion was confusing and did not assist
the Court in resolving the contested discovery issues. Doc. 92 at 1-2. On August 5,
2016, Plaintiff filed the instant Motion (“Plaintiff’s Motion”). Doc. 93.
The Court denies Plaintiff’s Motion for several reasons, any one of which is
sufficient on its own. First, Plaintiff’s Motion is, by her own statement, merely a
“refil[ing]” of her previous motion to compel, Doc. 93-1 at 1, which the Court already
denied. Plaintiff asserts that the Court’s denial of the previous motion was without
prejudice, citing page 2 of the Court’s July 15, 2016, Order. Doc. 100 at 2. However, the
Court did not state anywhere on page 2 of that Order that it was denying the previous
motion “without prejudice.” See Doc. 92 at 2. On the contrary, the Court denied
Plaintiff’s previous motion on both procedural grounds – i.e., because the motion failed
to comply with local rules and court orders 1 – and on the motion’s merits – i.e., because
Plaintiff’s discovery requests were “substantially overbroad.” Id. at 1-2. The Court’s
adjudication of Plaintiff’s previous motion upon its merits means that its denial was with
prejudice. See Lopez-Gonzalez v. Municipality of Comerio, 404 F.3d 548, 553 (1st Cir.
2005); see also Semtek Int’l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 505 (2001).
Second, regardless of whether the Court’s denial of Plaintiff’s previous motion
was with prejudice, the instant Motion is untimely, as on May 18, 2016, the Court stated

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Plaintiff states she failed to comply with Local Rule 37.1 in her previous motion “solely in an attempt to
comply with this Court’s rules regarding the page limit on briefs.” Doc. 93-1 at 1. The Court will simply
note that Plaintiff could have filed a motion for leave to file excess pages and the Court would likely have
granted it, as it did when Defendants filed such a motion. See Doc. 30.

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that motions to compel were due “no later than 21 days from the date of this Order or the
date of receipt of the formal responses to the discovery request.” 2 Doc. 82 at 7. Plaintiff
argues she “has not received responses to a majority of her discovery requests, and
therefore has made a timely objection.” Doc. 100 at 1-2. This is incorrect. Defendant
has responded to the discovery requests – though in some cases the response is an
objection. The twenty-one days runs from the date of this formal written response, a
point made particularly clear by the provision, in that Order, of a separate deadline for
objections arising out of the actual production of documents. Doc. 82 at 6-7. Plaintiff
filed the instant motion well after the twenty-one days expired and did so without leave to
file the motion late. For these reasons, under the Court’s May 18, 2016, Order, the
instant Motion is time-barred.
Third, if Plaintiff would like for the Court to consider the instant Motion as a
motion for reconsideration – which she has not explicitly requested – the Court would
deny it, as “[m]otions for reconsideration are not to be used as ‘a vehicle for a party to
undo its own procedural failures.’” United States v. Allen, 573 F.3d 42, 53 (1st Cir.
2009) (quoting Iverson v. City of Boston, 452 F.3d 94, 104 (1st Cir. 2006)).
Fourth, the Court is compelled to note that Plaintiff has, in the memorandum of
law in support of the instant Motion, yet again failed to comply with Local Rule 37.1.
The Local Rule requires the memorandum to include a “statement of the moving party’s
position as to each contested issue . . . immediately following each contested item.” L.R.
37.1(b) (emphases added). However, in the memorandum of law supporting the instant

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The Court’s dismissal, even if it had been without prejudice, did not toll the deadline. Cf. LopezGonzalez v. Municipality of Comerio, 404 F.3d 548, 554 (1st Cir. 2005) (noting that involuntary dismissal
of an action “made without prejudice but as a sanction does not toll the statute of limitations under common
law and equitable principles”) (citations omitted; emphasis in original).

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Motion, Plaintiff argues as many as fifteen requests for production (“RFPs”) at once.
Doc. 93-1 at 7-11. These 15 RFPs range somewhat widely, from a request for “[a]ll
documents concerning the . . . appointments, calendars and meetings” of the University’s
Title IX coordinator from March to May 2013 (RFP 64), to a request for “[a]ll documents
. . . relating to” a piece in the Harvard Crimson newspaper published in March 2014
(RFP 72). Doc. 93-1 at 7-11. Plaintiff’s failure to comply with Local Rule 37.1 and two
previous Orders of the Court constitutes a separate and independent basis for denying the
instant Motion. See Young v. Gordon, 330 F.3d 76, 81 (1st Cir. 2003); NEPSK, Inc. v.
Town of Houlton, 283 F.3d 1, 6 (1st Cir. 2002).
Fifth, even passing over all of the foregoing, Plaintiff’s discovery requests are
overbroad and unduly burdensome. This case is about whether Defendants denied
Plaintiff tenure because of her sex and/or her activism challenging Harvard’s compliance
with Title IX. To the extent that any of the 38 custodians has information discussing
Plaintiff in any capacity, including with regard to her activism, Harvard’s search protocol
will uncover it. See Doc. 93-2. Plaintiff’s search requests – e.g., for “[a]ll documents
concerning or relating to the fact that during the period 2012 through 2014, Harvard was
a recipient of ‘Federal financial assistance,’” Doc. 93-1 at 18 – and suggestions for new
search terms – e.g., “engaged,” “productivity,” “lack of,” “theory,” “overlap,” “publish,”
Doc. 100-1 at 2-3 – are either irrelevant to the instant matter or so tangential and broad
that “the burden or expense of the proposed discovery outweighs its likely benefit.” Fed.
R. Civ. P. 26(b). For all of these reasons, Plaintiff’s Motion is denied with prejudice.

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II.

DEFENDANTS’ MOTION TO QUASH
On July 29, 2016, Plaintiff served upon a non-party, Professor Deborah Poole of

Johns Hopkins University, a subpoena requesting “[a]ll documents” from September 1,
2007, through June 30, 2014, which relate to either (1) “the application or review of any
candidate for tenure at [Harvard] University” or (2) Plaintiff. Doc. 98-1 at 6.
Defendants do not object to the subpoena insofar as it requests documents relating
to Plaintiff, which makes sense because Harvard faculty considered Professor Poole’s
analysis of Plaintiff’s scholarship in deciding whether to grant Plaintiff tenure. 3
However, Defendants move to quash the subpoena’s request for all documents relating to
“any candidate for tenure” at Harvard. Doc. 98 at 2. Defendants argue that this request
violates the Court’s May 18, 2016, Order, which permitted Plaintiff to obtain the tenure
dossier documents provided to Harvard President Drew Faust, who held the ultimate
decision as to whether to grant tenure, regarding four other candidates for tenure in the
Department of Anthropology from September 1, 2007, to June 30, 2014. Doc. 98 at 3;
see also Doc. 82 at 4; Doc. 68-3 at 3. Defendants argue that Plaintiff’s request for all
documents relating to any candidate for tenure at Harvard violates the May 18, 2016,
Order because it is not limited to the four “comparator” candidates and because it may
allow Plaintiff to obtain documents that were not actually provided to President Faust.
Doc. 98 at 3.
Plaintiff argues the request for all documents relating to “any candidate for
tenure” at Harvard does not violate the May 18, 2016, Order, because the Order was
“‘without prejudice to Plaintiff seeking further documents based upon her review of the

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Professor Poole, as an evaluator external to Harvard, recommended Plaintiff for tenure but with
reservations. Doc. 102-4 at 10-12.

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documents produced’” in response to the Order. Doc. 102 at 3 (quoting Doc. 82 at 4).
Plaintiff argues that, based upon her review of the documents produced, she “is well
within” the Order. Id. More specifically, Plaintiff argues that, because Professor Poole
sat on a tenure committee for one of the four comparator candidates who received tenure,
and because Professor Poole was critical of Plaintiff, Poole’s correspondence regarding
that other candidate should be “compared” to her correspondence regarding Plaintiff, to
see if she had “bias against” Plaintiff. Id. at 4 n.3.
The Court grants the Motion to Quash Plaintiff’s request for “[a]ll documents”
that Professor Poole has relating to “any candidates for tenure” at Harvard. The request
is unduly broad and burdensome: it would require Professor Poole to produce any email,
text message, or other document she has relating to any candidate for tenure at Harvard,
regardless of whether that document relates to the candidate’s tenure application and
regardless of whether that candidate’s application is suitable for comparison to Plaintiff’s.
There is a grave “imbalance between the need for” such documents and “the burden
sought to be placed on the non-party,” making the instant Motion to Quash absolutely
appropriate. Cascade Yams, Inc. v. Knitting Fever, Inc., 755 F.3d 55, 59 (1st Cir. 2014)
(citation omitted).
Plaintiff did not make the alternative argument that the Court ought to permit her
to obtain from Professor Poole those documents Poole possesses regarding the
comparators about whom the Court permitted discovery in its May 18, 2016, Order. See
Doc. 82 at 4. Nonetheless, out of an abundance of caution, the Court has considered that
alternative. Even so narrowed, however, the request would go far beyond the defined
scope of the discovery permitted in that Order – i.e., tenure dossier documents regarding

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the comparators that were provided to President Faust. Id. To the extent Plaintiff
suggests that Professor Poole may have had some bias against her, an issue which the
Court does not resolve, such bias would, on the present record, be too attenuated from the
tenure decision Plaintiff challenges to warrant discovery. The over-attenuation is
particularly clear in this instance, given that Professor Poole was an external evaluator
who does not work at Harvard, and given that she is not alleged to have any particular
views on women in the academy or on Title IX activism at Harvard, the two bases of
discrimination that Plaintiff alleges against Defendants. Thus, the Motion to Quash is
allowed.

III.

CONCLUSION
For the foregoing reasons, Plaintiff’s Motion to Compel (Doc. 93) is DENIED

and Defendants’ Motion to Quash (Doc. 96) is ALLOWED.

/s/ Leo T. Sorokin
United States District Judge

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