Theidon v. Harvard University, et al.

Filing 142

District Judge Leo T. Sorokin: ORDER entered denying 135 Motion for Protective Order. Theidon shall first produce, within seven days (6/6/2017), the summary (not the full timeline document) ex parte under seal for the Court to review. After review, the Court will disclose the document to Harvard, unless upon review the Court perceives a possible privilege issue.The parties within seven days shall file redacted copies of their respective memos. (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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Civ. A. No. 15-cv-10809-LTS
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HARVARD UNIVERSITY, and the
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PRESIDENT AND FELLOWS OF
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HARVARD COLLEGE,
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Defendants.
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____________________________________)
ORDER ON PLAINTIFF’S MOTION FOR PROTECTIVE ORDER (DOC. NO. 135)
May 30, 2017
SOROKIN, J.
On May 3, 2017, the Court ordered Kimberly Theidon to turn over her notes of a
meeting with Jorge Dominguez. Doc. No. 129. Thereafter, Theidon filed a Motion for a
Protective Order, Doc. No. 135, stating that her only record of the meeting was in
correspondence with her counsel. Defendants Harvard University and the President and
Fellows of Harvard College (collectively, Harvard) opposed the motion. Doc. No. 140.
The following facts are before the Court. By February, 2013, while Harvard was
considering Theidon’s application for tenure, Theidon began taking notes of at least some
meetings with Harvard officials to create “a paper trail.” Doc. No. 140-8 at 2; see Doc.
No. 1 at 3. On May 28, 2013, Harvard rejected Theidon’s application for tenure. On
June 10, 2013, Theidon met with Senior Vice Provost Judith Singer; they discussed the
tenure decision. Theidon memorialized her recollection of the meeting in a set of
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extensive typed notes. Doc. No. 140-6, 140-7. The day of this meeting, Theidon emailed
a copy of the notes to another person asking for his thoughts. Several days later, on June
14, she emailed a slightly edited version of the notes to a number of other people. Id.
On July 2, 2013, Theidon met with Dominguez; they discussed the tenure
decision. Doc. No. 140-2 at 3. At Theidon’s deposition, the following exchange occurred:
Q.

In the course of that meeting, did you tell Professor Dominguez, in words
or substance, I do what I like to do?

A.

No, I didn’t. I remember—I mean, I know when I read that in the
documents, I thought, what an odd statement. It’s so tepid. First, it would
be obstinate, which I’m not, and then the other—I would never say that. It’s
such a tepid statement. I would say I love what I do. Anyone who knows
me, knows I love it.
I never said that to him, nor did I say other things that he ascribes to me in
my notes. My notes from that meeting look very different, sir.

Q.

Do you have notes for those meetings?

A.

Yes, I do. Where he told me not to file a grievance, not to pursue a suit, not
to set precedent, to go to Judith Singer, see if they’d forgive my mortgage
and solve it all with a handshake.

Q.

Can you explain why those notes have not been produced in this litigation?

A.

I don’t know. Aren’t they—I think they must be on my computer that you
have. They have to be, I think.

Q.

Do you know that you received a document request in this case?

A.

Yes. And I thought I produced everything, and I think I had written notes. I
know, in going back and thinking of what happened, I found notes, I believe.
They must be on the computer. I don’t know. I don’t have that computer
anymore. I thought I had produced everything. If I overlooked that, I
apologize.

Q.

What kind of notes were they?

A.

I remember after I left there, taking some notes on it. I wanted to remember
what he said to me, and I had reached out to him because he had told me
how great my work was in fall of that year. He had given me some advice
on the research statement, because I couldn’t get anyone to explain to me
what the tenure research statement should look like. And he told me my
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great, my scholarly contributions, et cetera, so he seemed like someone that
I should go back to after the tenure denial, because I was trying to figure
out for myself what had happened.
So I know I have some notes from that meeting.
Q.

Are they notes that you took at the meeting?

A.

No, I would have taken them afterwards. I wasn’t writing down at the time.
I would have gone back and I would have written them down somewhere.

Q.

Okay. And did you write them down in handwriting, or did you type the
notes?

A.

I don’t recall, because in preparing everything, even if it had been
handwritten, I would have probably tried to enter something in some type
of typewritten format.

Q.

And do you have a place where you keep handwritten notes, like the ones
that you may have taken during your meeting with Professor Dominquez?

A.

I don’t think so. Because I would have probably put them into typewritten
form. I might. I don’t think so, though, in terms of handwritten, I apologize,
I’m sorry, as I clarify.

Doc. No. 140-2 at 3–6. 1 In her affidavit in support of her Motion for a Protective Order,
Theidon stated that “I did not take notes during the meeting with Mr. Dominguez and to
my knowledge, no notes of the meeting exist.” Doc. No. 135-2 at 1.
According to Theidon’s affidavit, “[t]he only documentation I have of my
meeting with Mr. Dominguez is a quarter-page summary contained in the 17 page
timeline document I created in preparation of litigation for my counsel.” Doc. No. 135-2
at 1. Theidon further notes “After my deposition, I searched through my notes and emails
and realized that the only documentation of the meeting is contained in my notes to my
counsel in pursuit of legal advice.” Id.at 1–2. Theidon states that she “created a document
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Theidon filed the same deposition transcript under seal. Doc. No. 135-4. Harvard
attached the transcript to its Opposition unsealed. Doc. No. 140-2. The unsealed
transcript has thus been on the docket since May 18 without any argument from Theidon
that the Court should seal the deposition transcript excerpt.
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of her experiences working with Defendant for the purpose of seeking legal advice and in
anticipation of litigation against Defendant regarding her tenure denial. When she created
the document, she was represented by counsel in this case and at the time, marked the
document ‘Document Protected under Attorney-Client Privilege.’” Doc. No. 135-1 at 1.
Due to Theidon’s post-meeting note taking practices, the importance of the
meeting with Dominguez (someone Theidon described as a helpful supporter during the
application process), Theidon’s testimony at her deposition that she remembered taking
notes of her meeting with Dominguez “after [she] left,” Doc. No. 140-2 at 5. and the
careful wording of her affidavit which denies the current existence, but not the creation of
notes, the Court finds that Theidon took notes after the meeting and that the notes are no
longer in her possession. 2
Discovery of work product is governed by Fed. R. Civ. P. 26(b)(3)(A):
“Ordinarily a party may not discover documents and tangible things that are prepared in
anticipation of litigation or for trial by or for another party or its representative . . . .
But . . . those materials may be discovered if: (i) they are otherwise discoverable under
Rule 26(b)(1); and (ii) the party shows that it has substantial need for the materials to
prepare its case and cannot, without undue hardship, obtain their substantial equivalent by
other means.” The party seeking privilege protection bears the burden to show the
privilege applies. Tyler v. Suffolk Cnty., 256 F.R.D. 34, 38 (D. Mass. 2009). Theidon
has not established that either the attorney-client or work product privilege applies to the
now no longer existing notes of her meeting with Dominguez. She has not shown that the

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The Court makes no finding about the manner in which or the reason why the notes are
no longer in Theidon’s possession, custody, or control.
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notes were prepared with a primary motivating purpose to aid in possible future litigation.
See Sharp v. Gov’t of V.I., 77 F. App’x 82, 85 (3d Cir. 2003) (“Litigation need not be
imminent . . . as long as the primary motivating purpose behind the creation of the
document was to aid in possible future litigation.” (alteration in original)) (quoting
United States v. Rockwell, 897 F.2d 1255, 1266 (3d Cir. 1990)); In re Grand Jury
Subpoena, 220 F.R.D. 130, 147 (D. Mass. 2004) (adopting the Third Circuit standard).
Theidon has met her burden to establish that the quarter-page summary contained within
the seventeen page chronology was prepared in anticipation of litigation and thus is
protected by the work product privilege. Harvard nonetheless seeks the quarter page
under the exception to the work product privilege for documents for which it has a
substantial need. 3 Fed. R. Civ. P. 26(b)(3)(A).
The discussion with Dominguez is relevant to Theidon’s claims. Theidon brought
up the fact that she had taken notes at her deposition, apparently to bolster her account of
what was said in the meeting, and the underlying fact of the meeting and what happened
during the meeting is discoverable. Additionally, “[a] party may have substantial need for
unique information, such as statements taken contemporaneously in time to an event that
contain immediate impressions of facts.” Clark v. Edison, 2010 WL 3245428, at *2 (D.
Mass. Aug. 16, 2010) (citing Fromson v. Anitec Printing Plates, Inc., 152 F.R.D. 2, 4 (D.

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Theidon’s filing conflates work product protection with attorney-client privilege. The
work product privilege protects the document Theidon created for her counsel, Fed. R.
Civ. P. 26(b)(3), while the attorney-client privilege protects the communication with
counsel. Of course, the information—what happened at the meeting with Dominguez—is
not privileged at all. To the extent that Theidon is claiming attorney-client privilege over
the notes, the Court rejects her argument. The burden to show that the privilege applies is
on Theidon and she has not met that burden. United States v. Windsor Capital Corp., 524
F. Supp. 2d 74, 81 (D. Mass. 2007).
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Mass. 1993)). The notes, taken directly after the meeting, are a contemporaneous
account. With the notes unavailable, Harvard has met the standard to show substantial
need for the later-created, but still much closer in time, quarter-page summary based on
the notes.
Because the quarter-page summary was part of a communication to Theidon’s
attorney, Theidon shall first produce, within seven days, the summary (not the full
timeline document) ex parte under seal for the Court to review. After review, the Court
will disclose the document to Harvard, unless upon review the Court perceives a possible
privilege issue.
The parties within seven days shall file redacted copies of their respective memos.
The Motion for a Protective Order, Doc. No. 135, is DENIED.

/s/ Leo T. Sorokin
United States District Judge

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