Author: bedelman

In July-August, Harvard and I traded letters about production (emails and documents) we wanted from each other, that hadn’t been produced in discovery to date.  This page describes highlights of what’s in dispute.

My request to Harvard

My requests to Harvard, their oppositions, and my replies.

Communications Between Crispi and Staff

In the discovery dispute, I sought all emails that HBS Executive Dean for Administration Angela Crispi sent or received, relating to me.  The  filing presents three reasons why I want this information.

First, Crispi oversaw collection of information from staff for consideration by FRB.  She is the most senior HBS administrator, and the only non-faculty member to report to the Dean.  In fact all HBS staff, from administrative assistants to IT engineers to food-service workers, report through her.  Meanwhile, she was a member of the FRB that evaluated me, and her role included gathering information from staff for the FRB’s consideration.  My interactions with HBS staff were one of the subjects the FRB evaluated in 2017.  I’d like to review the emails she received from her team, to see whether they support her conclusions.

Second, my complaint alleges that Crispi (referenced as S1 in the complaint) had an “incurable conflict of interest.”  This refers to 2013-2015 discussions in which HBS staff changed sought to reduce the size of projection screens in MBA classrooms.  Oddly, staff initially made this change without notifying faculty or even leaders of the MBA program, prompting a hurried reversal.  Later, staff again wanted to reduce screen size, at which point I wrote to Crispi to explain why I preferred the larger screens.  Her strongly-worded response: “decision has been made and is final… urge that you put this matter to rest.”  But when the new Dean of the MBA Program saw a hands-on demo, he again decided to postpone the change – exactly opposite to Crispi’s claim that the change was “final” and could not be revisited.

Crispi had a conflict of interest because she was both a participant in the discussion (a member of the group that decided to reduce screen size) and a member of the FRB (evaluating my actions in this area).  Her contemporaneous emails are likely to reveal whether she correctly conveyed the relevant information available to her.

Third, my letter explains that “discovery has revealed questions about Dean Crispi’s conduct and transparency, particularly during the FRB process.”  Three aspects of particular concern:

1. Quantity of interviews. When the FRB evaluated me in 2017, a key methodology was to interview the faculty and staff I had recently worked with. Because all HBS staff report through Crispi, she was to conduct all staff interviews, while other FRB members interviewed faculty.  FRB Chair Amy Edmondson instructed that Crispi interview a specific number of staff, but she chose to interview, as my discovery submission politely puts it, “far fewer” than instructed.  The quantity matters: With the FRB preparing to criticize me for certain interactions with staff, Crispi should have interviewed the full quantum of staff assigned to her.
2. Supposed “quotes” not found in interview notes. When Crispi circulated proposed additions to the FRB report, she told other FRB members that she was inserting “quotes from my interviews.” But in fact the sentences she inserted do not appear in her interview notes.  In deposition, Crispi tried to disavow her contemporaneous statement that the insertions were “quotes” and they were “from [her] interviews”, instead claiming the insertions were paraphrased (not quotes) from prior emails or discussions (not interviews).  Even so, Crispi could not recall the origin (format, time, or source).  A reasonable reader of the FRB report expected the FRB’s quotes to be, yes, quotes – and to be taken from interviews conducted for this purpose in summer 2017, not from some amorphous and unidentifiable prior understanding.
3. Accuracy as to other facts.  In deposition, Crispi was repeatedly incorrect about resolution of requests I had submitted to HBS staff.  My discovery filing does not give specifics, and I cannot here reveal what Crispi said that was provably incorrect.  Certainly I made unusual requests in my time at HBS – from firewall exceptions to a projector in my office to, yes, keeping classroom projectors as large as possible.  I am pleased that in every instance, I worked productively with HBS staff to find a way to accomplish what I envisioned.

In oral hearing on August 20, Judge Debra Squires-Lee pointed out that discovery has to stop somewhere, and she denied my request to search more of Crispi’s email.  Fair enough.  I count myself fortunate that I already have evidence that Crispi did not interview as many staff as Edmondson instructed, that the insertions she called “quotes” cannot be found in her interview notes, and that her understanding of my interactions with HBS was staff was, to put it politely, misinformed.  All of this is closely related to my claims: If the FRB had provided “the evidence gathered” as the governing policy required, I would have quickly found that her insertions could not be found in interview notes.  And I would have established that she provided inaccurate information about me to FRB – the core of a forceful rebuttal.

Spoliation

Under longstanding legal doctrine, people and organizations are required to retain documents when there is a reasonable expectation of litigation.  Litigation was reasonably anticipated by 2015, and documents show HBS leaders repeatedly acknowledged this risk:

• On October 25, 2017, Senior Associate Dean Paul Healy discussed in an email with HBS Dean Nitin Nohria “fears that there will [be] a legal follow up if Ben [Edelman] does not get promoted and we do not have tight policies to defend ourselves.”
• On March 20, 2018, I met with Dean Nohria and explained ways in which I believed the FRB had not followed the Principles and Procedures to my detriment. I left Dean Nohria with a marked up copy of the P&P, emphasizing the violations.
• On April 27, 2018, I met with Dean Healy to express my concerns about the FRB process. Dean Healy testified in his deposition that, as of this time, he “assumed [I] might consider litigation.”
• On May 16, 2018, I emailed Dean Healy to reiterate my belief that the Principles and Procedures had been violated. Dean Healy wrote to Dean Nohria, “Sounds like Ben is preparing to go to the next level.”
• On May 31 and June 11, 2018, I wrote to then-Provost Alan Garber expressing that “rules” had been “violated,” asking for a meeting in order to avoid an “overly lawyerly” written submission, stating that “procedural commitments… weren’t followed,” and indicating that further discussion could “get[] legalistic and frankly argumentative pretty quickly.”
• On June 30, 2021, I emailed new HBS Dean Srikant Datar, attached a letter from an attorney (not my current counsel), and flagged “the need to preserve documents pertaining to my FRB and subsequent evaluation.”
• Between October 19, 2021, and November 4, 2021, I communicated with attorney Jennifer Kirby in the Harvard Office of General Counsel, raising Harvard’s document retention obligations and suggesting that pertinent custodians included “the FRB faculty and staff.”
• On October 4, 2022, my current counsel wrote to Kirby with a description of my legal claims and a request to preserve documents including “Documents, notes, communications, letters, emails, reports or records created by any Harvard employee related to [my] candidacy for tenure or the 2015 and/or 2017 FRB processes” and “Communications from or to any Harvard employee… concerning [my] candidacy for tenure or the FRB process.”

These sources leave no doubt that not only was it reasonable to anticipate litigation, but HBS leaders actually anticipated litigation and discussed it repeatedly, both with me and on their own.

Despite discussion of litigation risk in 2017 and even earlier, Harvard did not implement a litigation hold until August 24, 2021, and even that only as to Dean Nohria, Dean Healy, one FRB faculty member, and one FRB staff member.  Harvard did not implement a litigation hold as to the other FRB faculty and staff member until February 24, 2023.  As a result, there was no litigation hold for four FRB members for 64 months after Healy and Nohria first discussed the prospect of “legal follow-up”, and no litigation hold for the FRB chair and staff assistant for 46 months after that discussion.

If everyone kept every email and every document, it wouldn’t matter when Harvard activated the litigation hold.  But several custodians did exactly the contrary:

1. In July 2018, eight months after discussing possible “legal follow-up” relating to my case, Dean Healy “completely wiped” an iPad that had his notes and relevant documents from the promotion process, including notes related to Standing Committee meetings.  I haven’t yet found any other member of that committee who took notes or who remembers much of what occurred, making the loss of these notes particularly harmful.  (If you, dear reader, are among those in attendance, please make yourself known!)
2. Professor Stuart Gilson, an FRB member, testified that he regularly deleted his emails, and did not keep them until he was instructed to preserve them in 2023.
3. When asked to explain her practices for deleting emails, FRB Chair Amy Edmonson was unable to do so.  She testified that she is “very disorganized” in email.  If she discussed me one-on-one with another similarly ‘disorganized’ person, it is likely that neither person kept a copy, and those messages are permanently lost.
4. Edmondson produced a number of relevant messages from her “Purges” folder. According to Microsoft technical documentation, this hidden Outlook folder stores messages that users have removed through the following multi-step process:
   (a) delete from a normal folder
   (b) clear out of Deleted Items (empty all of Deleted Items, or choose specific messages to remove from Deleted Items), either way with a confirmation screen
   
   (c) open the Recoverable Items folder
   (d) select the messages in Recoverable Items, choose Purge Selected Items, OK, and confirm yet again
   
   At the end of this process, the messages can no longer be accessed from any part of Outlook, though they are retained by Microsoft servers – either for 14 days (by default), or indefinitely (if a litigation hold is in place).  (Source)

   Microsoft servers automatically store mailbox audit logs about messages being deleted, cleared, and purged – information which would reveal who took these actions (Edmondson, an assistant or delegate, or an IT professional administering her account) and when. Microsoft servers can store mailbox audit logs for up to ten years.  Many Microsoft users copy these audit logs to a SIEM tool (Security Information and Event Management) for indexing and long-term storage.  Unfortunately Harvard allowed Microsoft to delete these logs after just 90 days, and Harvard says it didn’t keep a copy.

   To date, Harvard has offered no explanation of how these relevant messages came to be in the Purges folder.

These facts demonstrate pervasive failure to preserve evidence despite a clear obligation to do so.

In the recent hearing about discovery disputes, Judge Squires-Lee correctly pointed out the seriousness of alleged spoliation, and she asked that I submit my arguments in a motion dedicated to this subject.  Soon!

Harvard’s request to me

Harvard’s requests to me, my oppositions, and their replies.

Harvard sought additional documents on a single subject: My communications with the clients that requested certain research about Blinkx, leading to my 2014 web post on that subject.  Harvard says this is relevant because Blinkx is supposedly “central” to this lawsuit – counting how many times Blinkx came up in my complaint and in depositions.  I disagree: This case is about whether the 2017 FRB followed its rules.  The 2017 FRB report did not even mention the word Blinkx.  Any claim I might have about the 2015 proceedings would have been time-barred by the statute of limitations.  My discovery dispute submission calls this a “fishing expedition,” and in my view the term is apt.

To that, Harvard claims I misled the FRB in 2015, offering three lines of attack.  First, they say I misled HBS about when my clients found out I would publish on my web site.  But here, HBS conflates time periods.  I correctly told the FRB that, at the start of the engagement, my clients couldn’t have known what I’d find or whether I’d write about it on my web site.  As my work progressed, naturally my thinking evolved – and in due course I told both the clients and others that I was alarmed by what I had found.  Here HBS calls out another email, where I wrote quickly to an old friend, mistakenly stating that I had sought and received permission to write up my findings “after I finished the research.”  The simple fact is my message was wrong, and HBS knows it: In 2014, I provided HBS a redacted copy of my agreement with the clients, and that agreement specifically indicates that I required the clients to agree, before I started the project, that I could publish if I wanted to.  Weird as it is that I made this error, an error it was – and not indication that I misled anyone.

Second, Harvard claims I misled HBS when I supposedly said my clients “didn’t stand to benefit from” my publication.  But I deny ever saying such a thing.  That remark appears in a single email from HBS Associate Dean Jean Cunningham to two HBS staff, after the brief call in which she and I first discussed Blinkx.  So far as I know, Cunningham never asked me to confirm her understanding.  I first received that email in 2015, more than a year after Cunningham wrote it, as an attachment to the 2015 FRB report.  Even then, no one ever called my attention to that line; in replying to the 2015 FRB report, I focused on the core of its substance, not this brief aside.  This supposed remark was not material in 2015 and certainly was not material in 2017.

Third, Harvard says I was out of line when I objected to sharing information that the clients told me, including stopping a deposition answer mid-sentence when I realized I was veering into information covered by a confidentiality agreement.  But honoring a confidentiality agreement isn’t just proper – it’s required.  I am proud to have done my very best to answer Harvard’s proper questions while also honoring my confidentiality obligations.  Those two principles sometimes conflict, and there’s no shame in flagging the conflict when it arises.

Remarkably, Harvard goes on to accuse me of fabricating what they allege is a nonexistent confidentiality agreement.  Harvard remarks on a difference in wording between the confidentiality provision I reported in 2014, versus what a lawyer for the clients stated in a letter in 2024.  From that difference, Harvard hypothesizes that I made up the version I sent.  If they were concerned about the discrepancy, they could have just asked (in a deposition question or interrogatory).  A supplemental letter from the clients’ lawyer reveals that there were multiple confidentiality agreements relating to the multiple instances in which the clients engaged me, dating back to 2005.  Ultimately all the confidentiality agreements are the same in substance, and the varying word choice reflects only that in a decade of working together, we chose different words to embody the same ideas.  This is no basis for Harvard to accuse me of forgery.

Reasonable people can disagree about the work I did for investors interested in Blinkx, and the write-up I later posted about that company.  Some people think I did the world a service –protecting both users and advertisers.  Supporters probably also think that I’m entitled to be paid for my effort, that journalists aren’t equipped or funded to do this work, and that investors are entitled to profit from their inquisitiveness.  Clearly other people think I got too close to a line, that my consulting and subsequent publication create at least an appearance of impropriety.  I lean towards the former point of view, but I accept the latter, and based on the concerns I heard, I have been considerably more careful ever since.  I certainly didn’t mislead anyone, nor attempt to mislead anyone.

It seems Harvard will try to make this core to their defense.  In both their discovery letter and the oral hearing, they argued that if HBS had found that I misled the FRB in 2015, they would not have extended my appointment to 2017, there would have been no 2017 FRB, and thus I wouldn’t have claims arising from the 2017 FRB not following its rules.  That would be a delightful hat trick for Harvard – whisking away the many ways the 2017 FRB didn’t follow its rules and didn’t even try.  I don’t expect the court to allow this, both because it’s wrong on the facts (I didn’t mislead anyone) and wrong on the law (as this case is specifically about whether the 2017 FRB followed its P&P rules, and not about the Blinkx questions Harvard now seeks to pull in).  I expect much more briefing on this subject in Harvard’s Motion for Summary Judgment and my Opposition.

Judge Squires-Lee ordered me to produce my discussions with these clients, redacting clients’ names which she says are irrelevant.  I am doing so.

***

Further discussion and evidence of the 2017 FRB not following its rules, and evidence of bad faith by the 2017 FRB will appear in forthcoming filings on summary judgment.  These are slated to be filed in December, and I will update my site when these are publicly available.

In May 2023, Harvard filed a Motion to Dismiss my lawsuit.  Harvard argued that universities have wide discretion to make tenure decisions, and claimed that I was incorrect in my allegations of violations of the governing policy.  Meanwhile Harvard did not concede that its P&P policy is a contract that it must follow.

This week the Massachusetts Superior Court denied all of Harvard’s arguments.  And the Court correctly treated the P&P policy as the contract that it plainly is.  My case will proceed.

The next step is discovery.  I’m particularly looking forward to discovery because Harvard has withheld so much information from me.  For example, the governing policy required Harvard to provide me (as well as readers of the report about me) “the evidence gathered” by the investigating committee.   But Harvard did nothing of the kind, instead resorting to anonymous quotes entirely without context.  Now that I am entitled to discovery, I will demand the entire corpus from which these quotes were taken.  That will certainly include all the notes prepared by the investigating committee.  It should also include full interview recordings.  With this information, I will no longer have to speculate about what these speakers might have been talking about.  At long last, I will be able to say for sure – putting me on track to defend myself in substance and without resorting to hypotheticals.

I will also seek the written tally sheets on which members of the HBS Appointments Committee (all senior faculty and fully-engaged emeritus faculty) evaluated my case.  These tally sheets give each person’s contemporaneous statement of the basis for their vote.  The tally sheets will therefore reveal what the Appointments Committee learned (or thought they learned) from the FRB report about me, versus what they found from other independent sources not the subject of my lawsuit.  No doubt Harvard would prefer to keep faculty notes confidential.  But see Theidon v. Harvard Order on Defendant’s Motion for Protective Order and Plaintiff’s Motion to Compel, requiring Harvard to produce letters from outside letter-writers evaluating a candidate’s research.  That Court remarked “there is no privilege against the disclosure of tenure peer review materials” and further pointed out that the litigant needs these documents to prove her case.  So too for me.

I’m not perfect.  But I don’t have the flaws alleged in the 2017 FRB report about me.  The Appointments Committee faculty who judged my case based on that flawed report were provided incorrect facts about me, and their misinformed votes were pivotal to the failure of my promotion to tenure.  With the benefit of discovery, I will prove every link of the logic: I will establish not just that the report didn’t follow the promised procedure but that it was actually incorrect, and I will show how the faulty report influenced Appointments Committee members. 

This post is part of What Harvard says about my lawsuit (in its Motion to Dismiss).

My complaint flagged P&P provisions that I said limit the creation of an FRB to certain circumstances: allegations of “egregious behavior” or “persistent and pervasive” problems.  I said the P&P obliged Harvard to state the subject of investigation in the form of an affirmative “allegation”—a specific claim of specific misconduct, not just a general subject of possible concern.  I said the FRB was obliged to state this allegation at the outset, and I said the investigation had to stay true to that allegation, not add other topics willy-nilly.  I said the P&P obliged the FRB to actually “investigate” and draw “conclusions,” not merely report selected opinions from the statements of various persons interviewed. 

Harvard’s Motion to Dismiss argues that none of the provisions I quoted mean what they say.  Taking each in turn –

The level of (alleged) misconduct required to open an FRB

Harvard says that the “egregious” or “persistent and pervasive” thresholds for an FRB investigation don’t apply to FRB proceedings in the context of a promotion case.  Instead, Harvard says the HBS Dean may ask the FRB to investigate a candidate for promotion whenever there is “concern” about the candidate’s conduct. 

But the P&P itself says an FRB review incidental to a promotion case is to proceed “as outlined above.”  My Opposition to Harvard’s Motion to Dismiss points out that the word “above” refers back to the standard P&P rules for all FRB matters, including that an FRB investigation is authorized only by a specific allegation of “egregious” or “persistent and pervasive” problems. 

Arguing that no such allegation was needed in the promotion context, Harvard effectively admits that there was, in 2017, no allegation against me of the serious nature authorizing an FRB investigation.

The opening and expansion of the 2017 FRB

As to my complaint that the 2017 FRB offered no “allegation” at the outset of its process, Harvard points to the three broad bullets in the 2017 FRB’s opening letter to me.  These, Harvard says, sufficiently put me on notice of broad subjects the FRB might examine. 

But the FRB’s opening letter to me did not provide notice of any of the specific subjects that the FRB later examined.  Rather, by stating broad questions in open-ended terms, the FRB’s opening letter served as a blank check for the FRB to seize upon whatever interview snippets it eventually chose as supposedly indicating misconduct.  See my Opposition, page 14.

The plain language of the P&P required better.  In particular, the P&P obliged the FRB to state an “allegation” of “problematic conduct.”  The word “allegation” has real meaning: check the dictionary definition, “a statement saying that someone has done something wrong or illegal” (emphasis added).  If the FRB could state no such allegation, the P&P authorized it to proceed no further.  And if such an allegation could be stated, then the P&P required that the FRB in fact state it, in the form of an allegation and not merely an agenda or personality test.  A listing of broad questions is no substitute for a specific allegation, especially when the questions are so amorphous as to cover every aspect of a person’s character.

Harvard next says I shouldn’t have been surprised about the focus of its 2017 investigation.  But the FRB’s broad statement of its 2017 scope let them fit any plausible subject within that supposed mandate.  And I genuinely was surprised by the direction of the 2017 FRB.  The substance of the 2017 report criticizes my writings about Google in light of my prior work for Microsoft—but neither the words “Google” nor “Microsoft” appeared anywhere in the 2015 FRB report, nor in the FRB’s 2017 opening statement of what they’d be looking at.  If these subjects were as obvious as Harvard’s lawyers now claim, it’s striking that the FRB failed to mention either company at any earlier stage.  Meanwhile, the 2017 report criticizes my work as an attorney seeking refunds for consumers who were overcharged by American Airlines—continuing a line of cases I began to bring in 2005 (two years before joining the HBS faculty).  But HBS had never before criticized any aspect of this work, and indeed a senior administrator had specifically approved it when I inquired (telling me no special process was required to secure permission to serve as an attorney).  So I was rightly and reasonably surprised by the FRB’s newfound interest in these subjects.  See my Opposition, pages 14-16.

Harvard later says that if there were any gap in what they told me up front, that gap was cured by the FRB providing me what FRB calls an “ample” opportunity to respond.  Three problems with this claim.  First, the timing was far from ample.  The FRB granted me just eight days to reply to its draft report—and that, in a period when I was on parental leave.  A person disputing a parking ticket gets several times longer!

Second, the FRB denied me the opportunity to review the evidence gathered.  Withholding that evidence complicated my response, introduced ambiguity and uncertainty, and made my response more difficult.  This compounded the impact of the time crunch, and it also took the strongest responses off the table completely: No matter when my response was due, I’d be attempting to respond without knowing the core of what I was responding to.

Third, the opportunity to respond to the FRB’s draft report is quite different from being informed at the start about what the FRB would look at.  Had the FRB stated its specific subjects at the outset of its 2017 process, I would have addressed those subjects from the start, including in my opening letter that was my first and best chance to influence the FRB.  I would have had months, not days, to collect my thoughts and advance my best arguments.  For example, I could have compared my outside activities to those of respected senior colleagues, establishing that in relevant respects I was well within the norm.  And I could have established the positive public response to my prior litigation efforts, which secured tens of millions of dollars of benefits for consumers and small businesses and which were widely praised by the class members I represented.

In opposing Harvard’s argument that the opportunity to reply to a draft report cured any problem of late notice, my attorneys found an earlier Massachusetts case that’s remarkably similar.  In Bulwer v. Mount Auburn Hospital, a medical resident was the subject of a disciplinary process, but was provided a written notice of charges that merely cited “patient safety” in general terms.  The Massachusetts Supreme Judicial Court held that eventual notice of the specifics and a written reply were no substitute for being promptly informed of the specific charge at the outset.  Much the same is true here.  If anything, the procedural breach is more severe in my case: The medical resident ultimately received the specifics of the charge, albeit belatedly, and therefore could respond in substance.  In contrast, the FRB’s draft report about me provided only cryptic snippets devoid of the context I would have needed to meaningfully respond. To this day I don’t know what the twelve negative quotes were talking about or who said so. See my Opposition, pages 14-16.

The duty to “investigate” and draw “conclusions”

Harvard claims the FRB took sufficient steps to investigate the facts and weigh the evidence: Harvard says the FRB gathered relevant facts and interviewed “more than a dozen” witnesses—intimating that that number of witnesses in some way excuses the P&P violations I flagged.

But the FRB’s obligation was more than just gathering facts and conducting interviews (no matter how many).  For one, the P&P required the FRB to draw “conclusions.” If some items of evidence pointed one way, and others another, the FRB was charged with determining which was correct and whether misconduct occurred.  If critics suggested I violated a policy, the FRB was obliged to get to the bottom of it—to explain what action the policy requires in what situation; to determine whether such a situation occurred; to report whether the required action was taken.  The FRB did none of this.  See my Opposition, pages 16-17.

How do we know the FRB neither investigated nor drew conclusions?  Those who have the report can see for themselves.  For one, the FRB glaringly offered no weighing of the evidence: After summarizing quotes from both supporters and detractors, the FRB didn’t evaluate who has the better basis to judge, who knew me better, which interactions were most important, or, most fundamentally, whose quotes were correct in light of knowable facts.  Instead, the FRB merely remarked on “the depth of passion on both sides.”  That’s not a conclusion; it’s at most counting noses.  Then when the FRB turned to my outside activities, the FRB mentioned potentially-relevant policies, but offered no close reading of any policy to identify its contours or apply it to the facts at hand—not to mention engage with my analysis indicating that a key policy applied only in specific circumstances that were not present.

In parallel, the FRB’s own admissions provide particularly stark proof that it neither investigated nor drew conclusions.  The FRB report’s first paragraph expressly admits that its “process was not an investigation.”  The report continues: “We did not seek to pass judgment on the particular outside activities and work that Professor Edelman pursued.” But “investigation” is the heart of the FRB’s function.  And “passing judgment” is the essence of reaching the “conclusions” that the P&P requires.  Not only did the FRB members know they hadn’t conducted an “investigation” reaching conclusions, the gap was so large that they felt compelled to say so on the first paragraph. 

The report’s authors having admitted that there was no investigation and no conclusions drawn, Harvard’s lawyers now have to find a way to walk back these admissions.  If the FRB conducted an “investigation” after all, why did the authors say they didn’t?  If the now-purported investigation drew “conclusions,” why did the FRB say it “did not seek to pass judgment”?

***

The P&P calls for an organized, careful process with low likelihood of error, firm grounds for being viewed as fair, and a decent chance of actually being fair.  These benefits were particularly important to HBS faculty in the period when the FRB was introduced: Many faculty thought that then-recent allegations against two faculty members, both then-recent candidates for tenure, had been mishandled—investigated at best haphazardly, perhaps incorrectly, with severe professional consequences out of proportion both to the allegations and the evidence. 

I, at least, suspected that allegations of misconduct had become a backdoor way to torpedo a candidacy: If there’s someone you don’t like, don’t criticize their research (for substantive criticism could be opposed on the merits), but instead raise an ethics complaint (ideally one that couldn’t be easily disproved).  FRB was supposed to be the answer to this problem: a more rigorous, more trustworthy, more structured process so that surprise allegations and a kangaroo court could not derail a candidate’s career. 

Indeed, the P&P promised major progress in all these regards: by limiting the FRB’s purview to misconduct which was egregious or persistent and pervasive; by prescribing procedural protections to assure the fairness of the process; by insisting that evidence be provided both to the subject of an FRB and to anyone reading the FRB’s report.  My complaint alleges that the 2017 FRB fell short of these aspirations—no properly-stated allegation at the start, new subjects brought in at the last minute, evidence gathered yet not provided, and a report that by its own admission was not based on an investigation and did not draw conclusions. 

***

Ultimately, Harvard doesn’t argue that the FRB truly got it right or even that the FRB substantially followed the P&P rules.  Rather, Harvard’s core defense is that the P&P rules mean whatever Harvard now wants them to mean, and apply only to the extent and in the way that Harvard chooses. 

I’m glad that’s not what the rules say.  I’m optimistic that the court will hold Harvard to the actual P&P policy.

This post is part of What Harvard says about my lawsuit (in its Motion to Dismiss).

Among the P&P’s provisions is a commitment, repeated twice for emphasis, that the subject of an investigation—and all readers of any resulting report—receive “the evidence gathered.”  The P&P first states that the draft FRB report “should include the evidence gathered.”  It then remarks that “the faculty member … will have an opportunity to review… the evidence gathered and the draft report.”

Notably, the P&P indicates that “the evidence gathered” is to be complete. For one, the word “the” refers to all of the evidence, not just a portion.  Meanwhile, the word “gathered” means that the evidence must be provided in its entirety. Hence the FRB must provide both those sources that the FRB relied on, and also those that it gathered (or otherwise received) but for whatever reason did not rely on.  The FRB can’t keep its preferred portions, excerpts, or snippets, and delete or bury the rest.

In its Motion to Dismiss, Harvard offers three counterarguments.  Taking each in turn –

Harvard says it did provide the evidence

Harvard says “the draft report did include the evidence gathered” in that it quotes partial remarks from various interviews the FRB conducted.  I’m surprised Harvard even attempts this claim because it’s glaringly incorrect.  In this digital age, “the evidence gathered” would typically include emails.  But did the FRB report actually include any emails?  Maybe something rude I once wrote in a hurry, or some criticism from a student or even an alum?  Nope, not one.  My complaint says the FRB conducted interviews and discussed those interviews in its report, so “the evidence gathered” should include a list of who was interviewed and any available records of what they said (a recording, a transcript, or at least some notes)—but, no, there’s none of this either.  Nor was I otherwise given access to any evidence in order to be able to respond.  In fact the only attachments to the 2017 FRB report were the FRB’s correspondence with me.  That’s plainly not “the evidence” that P&P promised to provide to any subject of an FRB investigation. 

Harvard’s Motion to Dismiss points out that parts of the FRB report provide snippets of evidence, such as quotes from some interview subjects.  But these quotes are the briefest of brief: Of the twelve derogatory quotes in the FRB report, nine consist of a single sentence, and the longest is 32 words.  Each quote was plainly taken from a broader interview—yet FRB didn’t tell me or other readers who was interviewed, or what subject or context the speaker was discussing.  My complaint alleged that all interviews were recorded and that FRB members took notes.  (The FRB recorded all its discussions with me, plus members took notes as we spoke.  I have no reason to think they kept lesser records for others they interviewed.)  When the FRB records an interview, the recording necessarily becomes part of “the evidence gathered.”  And when FRB members take notes, those notes are similarly “evidence gathered.”  Perhaps Harvard leaders regret promising to share that evidence, but promise they did.

My full arguments on this subject are in my Opposition to Harvard’s Motion to Dismiss, especially pages 10-13.

Harvard says the P&P didn’t require recording or transcribing interviews

Harvard says the P&P didn’t require the FRB to record or transcribe witness interviews.  True but irrelevant, and my complaint claimed nothing the contrary.  Once the FRB decided to record interviews and take notes, those recordings and notes became part of “the evidence gathered,” which the P&P calls for providing to the subject of the report and other authorized readers.  Notably Harvard doesn’t deny that it compiled documentation of its interviews (whether in the form of recordings, notes or transcripts), nor does Harvard deny that it retains other documents such as emails.

Relatedly, Harvard says nothing in the P&P guaranteed me the right to “litigation style discovery.”  But I didn’t seek the benefits available in litigation, such as cross-examining witnesses or demanding production of documents not gathered by the FRB.  All I sought was what the P&P did promise, namely that whatever evidence the FRB gathered, I’d get it too in order to be able to respond. See my Opposition, pages 12-13.

Harvard’s broader theme is that my request for recordings, transcripts, and other evidence is in some way extraordinary.  Not so.  If a bank denies a person’s credit card application, the bank is required by law to provide the reason including the underlying credit report.  Surely decisions about my career deserve at least as much care as a credit card application.  Meanwhile, circulating evidence is routine in other HBS processes.  I well remember instances in which HBS leaders brought serious disciplinary charges against MBA students.  In preparation for those discussions, faculty were asked to read a binder of evidence and analysis—with a second binder of appendices available for those who wanted additional detail.  Binders of evidence were appropriate then, and sharing the evidence was at least as appropriate for the investigation about me.  Yet when it came time for the 2017 FRB report about me, somehow the FRB saw fit to attach not a single interview transcript, not a single email, and not any other evidence either.  That’s not right, not normal for HBS, and most fundamentally, not permitted by the P&P.

Harvard says the evidence it provided should be accepted as sufficient

Harvard says the FRB report’s evidence should be accepted as sufficient in light of the P&P’s statement that the FRB process is to be flexible.  But the P&P’s general endorsement of flexibility does not negate the specific procedural commitments the P&P lays out in detail.  Any flexibility must be in areas where the P&P is silent or ambiguous, not in areas where the P&P promises a particular protection such as the right to review the evidence gathered.  See my Opposition, pages 11-12.

Meanwhile, I vigorously disagree that the FRB’s (non)evidence can be deemed sufficient.  Imagine if each of the derogatory quotes had included information about who said it and what they were talking about.  Maybe six of the comments came from the same person.  Maybe three came from the very administrators who said “it can’t be done” when I said I’d build software to enable a sight-impaired faculty member to see which students wanted to participate in class discussion.  Maybe the person who said “his preferred solution can’t or won’t be implemented” was talking about a solution I suggested that ultimately was implemented, and to considerable acclaim at that.  Maybe maybe maybe.  The FRB forced me to speculate about the sources and context of the quoted snippets.  I’m confident that I could have mustered a far stronger reply had I been provided the specific evidence gathered.  The P&P promised me at least the opportunity to try.

As supposed justification for not letting me see the evidence gathered, Harvard invokes the P&P’s remarks about confidentiality and privacy, which the P&P calls “important considerations.” Yet in the P&P’s own language, these considerations are constrained by “what is practicable.”  In contrast, the P&P says the obligation to share “the evidence gathered” is absolute: “the faculty member will have an opportunity to review … the evidence gathered” (emphasis added). See my Opposition, page 11.

One might imagine some implied exception to the FRB’s obligation to sharing evidence.  The P&P says no such thing, of course, but I wouldn’t have been surprised if Harvard argued that certain evidence could be withheld for particularly good cause—where the evidence is especially embarrassing or poses some distinctive personal or professional risk.  However the FRB offered no such reasons, nor did Harvard attempt such an argument in its Motion to Dismiss.  Nor is there any suggestion that the FRB attempted to balance competing values by concealing specific speakers’ identities for good cause.  Instead, the FRB withheld the identity and context of every single person whose interview included the quoted derogatory remarks.  The P&P plainly rules out that approach.

How the 2015 FRB shared evidence with me, why that matters, and what that says about the importance of evidence in 2017

In notable contrast, the FRB’s 2015 report about me did attach some evidence, and some of that evidence was genuinely useful to me in responding.  For example, the FRB’s 2015 draft report attached an email in which HBS’s CFO praised me for distinctive efforts to protect the school’s funds (and noted my genuine surprise that my efforts later caused extra work for others).  This email showed my proper purpose in those efforts, and also showed my productive working relationship with him—well within the realm of routine correspondence between a junior faculty member and a senior administrator.  In a separate thread, another senior administrator remarked on me being the only faculty member to attend an optional meeting about the school’s then-proposed conflict of interest policy.  This email showed my longstanding commitment to conflict of interest issues, as well as my distinctive familiarity with HBS’s policy in this area.  I had access to these useful emails only thanks to the 2015 FRB attaching them to its draft report and thereby providing them to me.  My 2015 response to FRB was considerably stronger thanks to these emails and other evidence the 2015 FRB provided.  And proponents of my case could point to these emails to show, among other things, my productive working relationship with senior staff (contrary to what some critics seemed to perceive).  So the emails mattered and were genuinely useful.

Recall that the 2017 FRB was much less specific at the outset about what exactly they’d investigate. And even in its final report the 2017 FRB didn’t tell me the subjects of the twelve anonymous derogatory quotes.  As a result, the 2017 evidence would have been even more useful to me in preparing my response and pressing readers to consider the gaps and errors in the 2017 FRB’s report.

This post is part of What Harvard says about my lawsuit (in its Motion to Dismiss).

My lawsuit is grounded in promises Harvard made to faculty via its Principles & Procedures for Responding to Matters of Faculty Conduct policy (“P&P”).  The P&P is plainly binding on faculty and Harvard alike.  Consider: Harvard circulated a draft of the P&P to faculty for consideration in advance of a faculty meeting.  The draft was discussed at length in a faculty meeting, then voted on; the unanimous vote approving the policy was reported by email to all faculty.  The P&P was then posted to the secure internal web site where other faculty policies reside.  The P&P was thus adopted bilaterally by agreement between Harvard and the affected faculty.  I understood the P&P to be a binding obligation—setting out what faculty must do in certain circumstances, and also what the University must do.

In its Motion, Harvard made no mention that the P&P was adopted by agreement with the faculty.  Harvard even skirted the question of whether the P&P is a contract with which it must comply.  Consider this gem from Harvard’s Motion: “Harvard does not concede that the FRB principles … constituted an implied contract, legally binding on Harvard.”

Current faculty might be surprised by Harvard’s intimation that the P&P is not legally binding. Surely most faculty believed, as I did, that the P&P provided them with important protections should anyone allege they were out of line.  Concern could reasonably extend beyond faculty: If faculty cannot rely on policies promulgated to faculty, can students rely on policies for students?  Is any Harvard policy actually binding and enforceable, or is it all just talk Harvard can follow, or not, as its leaders see fit?

My Opposition to Harvard’s Motion to Dismiss calls Harvard out for not admitting that the P&P is a binding contract.  It then identifies the facts showing that the P&P is a contract with which Harvard must comply, most notably its bilateral adoption.  If no other good comes from my lawsuit, I at least hope to establish that when a dean proposes a policy and submits it to a vote of the faculty, and when affected faculty vote to approve, the policy is binding according to its terms. 

A policy could be changed, of course, most obviously through a further faculty vote.  But until then, the policy is what it is—and it binds everyone concerned. 

Offering no concession, Harvard says nothing in its Reply disputing that the P&P is a contract with which it must comply.

Perhaps Harvard leaders now regret the firm promises and procedural commitments laid out in the P&P.  Nonetheless, those are the provisions that HBS itself proposed in 2015.  No one should be surprised that I seek to hold HBS to the provisions it said it would follow.

In March, Harvard served its Motion to Dismiss my lawsuit.  I then served my Opposition, and finally Harvard served its Reply.  So briefing of Harvard’s Motion to Dismiss is now complete, and I have added the three filings to this site’s document library.  A hearing on this motion is scheduled for December 15, 2023.

In three posts, I share thoughts on facets of particular interest –

Is the FRB P&P policy a contract?   Does Harvard actually have to do what the policy says?

Was I denied the opportunity to review “the evidence gathered”?  What is “the evidence gathered”?  Is it whatever Harvard says it is?

Can an FRB investigate anything it wants, any time it wants, any way it wants?

Update March 18, 2024: Harvard’s Motion to Dismiss was entirely denied.  Decision.  My reflections on the decision and next steps.

In summer 2017, in preparation for my possible promotion to tenure that fall, HBS reconvened a “Faculty Review Board”, the school’s disciplinary procedure for evaluating possible faculty misconduct. The FRB is governed by its “Principles & Procedures for Responding to Matters of Faculty Conduct” rules (the “P&P”), which establish significant protections for faculty members. On the whole, the P&P requires a careful, organized, evidence-backed procedure designed to find the truth — guaranteeing that the faculty member have meaningful notice of the claimed infraction, access to relevant evidence, and a fair opportunity to respond. The 2017 FRB flouted the clear requirements as it sought what seems to have been a predetermined conclusion.

I allege that the P&P has the force of contract, and my lawsuit flags five distinct violations of that contract:

1. The 2017 FRB failed to provide me, or its readers, with “the evidence gathered.” The P&P instructs that any FRB report must include “the evidence gathered.” The word “gathered” means that the evidence must be provided in the same form in which is it was gathered, e.g. full interview transcripts, full interview recordings, and full emails. All these must include both those sources that the FRB relied on, and also those that it gathered (or otherwise received) but for whatever reason did not rely on.

   The 2017 FRB did not provide the evidence that it gathered either with its draft report or its final report. In fact it attached no evidence whatsoever. Thus neither I nor the Appointments Committee ever received the evidence the FRB gathered.

   Most glaringly, the FRB criticized me with 12 derogatory bulleted entries (nine of them just one sentence each), purportedly summarizing remarks by people the FRB spoke to. The FRB knows who it spoke to, kept notes of all discussions, and I believe even made recordings. But the FRB didn’t tell me, or readers, who made these remarks. Nor did the FRB tell me, or readers, what contexts the speakers were talking about. Maybe all 12 came from one person, or maybe from 12 different people; the report gives no way to know. This decontextualized anonymous criticism is plainly contrary to the P&P obligation to provide “the evidence gathered.”

2. The 2017 FRB lacked a proper scope consistent with the P&P. The P&P instructs that the FRB may be invoked to investigate “instances of egregious behavior or actions, or incidents that indicate a persistent and pervasive pattern of problematic conduct.” (emphasis in original). But the 2017 FRB alleged neither of these. Indeed, the 2017 FRB was convened in the absence of any alleged misconduct whatsoever.

   If HBS wanted to convene a FRB to investigate me in 2017, it needed to allege either egregious behavior, or persistent and pervasive problematic conduct. But neither of those prongs would have been plausible. Tellingly, the FRB did neither. The P&P allows no such thing.

3. The 2017 FRB failed to begin by stating “a summary of the allegation, as it is known at the time.” The word “allegation” has real meaning — an affirmative claim of misconduct. The FRB made no such claim at the start of its 2017 proceedings, failing to put me on notice of what, specifically, they would be investigating. Instead, months into its proceeding, the FRB unveiled a host of spurious complaints. In contrast, the P&P requires that the scope be provided at the outset, which would have let me better defend myself and would have kept the FRB (properly) limited to those matters serious enough that they were known at the outset.

4. The 2017 FRB improperly expanded its scope midway through its proceedings.

   The P&P requires the FRB to investigate the same “the allegation” that it stated when commencing its process, thus giving the faculty member notice of the scope of its inquiry at the outset and a fair opportunity to be heard during the process.

   Instead, the FRB expanded its scope at the last minute. The 2017 FRB began as an inquiry into my progress since 2015 and compliance with requirements agreed to in 2015. But late in the 2017 process, the FRB became an inquiry into my outside activities.

5. The P&P requires the FRB to “investigate the allegation” (emphasis added), yet the 2017 FRB in its own words admitted that it was “not an investigation.” That much the 2017 FRB got right — it genuinely did not seek to get to the truth of the matter or weigh evidence, for it instead resorted to anonymous attacks and collecting grievances. But the P&P required the FRB to actually investigate. Having admitted not conducting the “investigation” that the P&P required, the FRB plainly and by its own admission did not comply with the P&P.

   So too for the FRB’s failure to reach “conclusions” as the FRB required. The FRB admitted that it “did not seek to pass judgment on [my] particular outside activities and work.” And the FRB collected and reported grievances about me, without even attempting to determine whether the complaints were correct. In contrast, the P&P required the FRB to provide “conclusions,” which it plainly and again by its own admission did not.

Details are in my complaint, especially paragraph 24 (as to the governing rules), 45 to 68 (as to the FRB’s violation of these rules), and 84 to 102 (laying out my breach of contract claim arising from the FRB’s violation of these rules).

My complaint also alleges that HBS breached the duty of good faith and fair dealing, requirements which are implied in all contracts. I allege multiple violations of that duty: HBS incorrectly included staff in or supporting the FRB who had conflicts of interest in that they were witnesses or complainants in the same matters the FRB was to investigate. The FRB misrepresented evidence and failed to correct incorrect statements even when I specifically flagged those errors. The FRB mischaracterized a governing HBS policy by failing to explain the limited situations in which that policy applied and by assuming, incorrectly, that it applied to my situation. I claim that the FRB’s procedural errors amount to a denial of basic fairness and undermined my rights under the P&P. Details in my complaint, paragraphs 108 to 111.

Today I filed a lawsuit in Massachusetts court about Harvard Business School’s failure to follow its own procedures in a disciplinary proceeding against me a few years ago.  I’d like to offer a few remarks about why I’m suing and why this matters — to me, to other faculty members who may be subjects of future charges, and, I hope, to others.

We should all be concerned when a person is incorrectly accused in a disciplinary proceeding.  Perhaps some readers of this piece have been incorrectly accused of something at some point in their life, or know others who have been incorrectly accused.  In most proceedings, procedures are designed to increase the likelihood that a person incorrectly accused is, correctly, cleared.  This is as it should be: No one trusts a process that routinely endorses incorrect allegations.  Conversely, we’d all like to be confident that a person found to have committed some violation in fact did what is alleged.  An investigatory system has to work, almost all the time, to earn and deserve trust and deference.

The importance of getting it right is revealed by the many terms the English language uses to describe broken investigations: sham, charade, kangaroo court, witch hunt, hatchet job.  We have these many terms not just because the concept captures the imagination, and not just because it’s the stuff of grocery store novels and TV crime shows, but because it could happen to any of us—bogus allegations and flawed investigations at our schools, workplaces, clubs, or almost anywhere else.

To give an investigatory system a reasonable probability of accuracy, the best approach is to establish procedures that assure fairness to anyone accused, then follow them strictly.  In the system that investigated me, the rules were pretty simple, and were plainly designed to assure fairness from start to finish.  They’re available here for anyone interested.  Of particular relevance to my case:

1. The rules require the investigators to declare at the outset what they’re investigating, then stick with it.  That rules out “fishing expeditions” where a committee looks and looks until finally it thinks it found something – a process that could probably find some defect in almost anyone, making such a process an unreliable way to find genuine concerns.
2. The investigators must actually conduct an investigation and determine whether a given allegation has merit.  It is insufficient to merely collect opinions, grievances, or personal attacks. The essence of the investigation is to evaluate those criticisms.
3. Whatever evidence there is against the target of an investigation, the investigators must share that evidence with the person.  That way the person accused can offer whatever explanation or mitigating factors might apply.  Perhaps that context will cause the evidence to be seen differently.

My complaint alleges, and I stand ready to prove in court, that HBS’s 2017 proceeding fell short in all these regards (and others).  Those interested can read the complaint, and I expect that further evidence will become available in the coming months.  Portions may get a bit complicated, like what exactly a given policy required, or how a given academic project related to some consulting matter.  But much of it is quite clear-cut: Either the proceeding gave me (and readers) “the evidence gathered”, as the policy guaranteed, or it did not.  There will be no real dispute that it did not. That alone proves that the proceeding did not follow its rules—and that alone should compel that the proceeding be done over, properly. It’s equally clear-cut that the P&P required the FRB to “investigate” — yet the FRB looking at me declared its work was “not an investigation”, affirmatively admitting falling short of what the P&P required.

Some will wonder why it’s worth my time to sue.  Indeed, this case will surely take considerable effort.  But I invested 11 years at HBS, and in many respects I designed my professional activities to fit what the school most valued.  To HBS’s credit, it offers a distinctive emphasis on practical, applied, impactful research; I joined HBS because I valued that practicality, and my time there confirmed that that’s the kind of research I like to do.  Meanwhile, many people know the special demands of HBS teaching—and while I frankly struggled with teaching for a few years, by the end I hit my stride, including both being highly effective as an MBA teacher, and also genuinely enjoying it.  Bottom line is it’s a job I did well, and I more than met the standards to continue. Were it not for the incorrect FRB report about me, I would have been able to continue and would have stayed indefinitely.  This lawsuit is the way to set things right—to reclaim what I fairly earned, and to clear my name of the incorrect allegations.  Anyone who believes in the importance of fair disciplinary proceedings—of those incorrectly accused having a meaningful opportunity to clear their names, of every proceeding following the stated rules to increase the likelihood of a correct outcome—should want my case to succeed. Wish me luck!