Category: Summary Judgment

This post is part of Summary Judgment Motions and Evidence.

For reader convenience, I split the large Joint Appendix into its constituent parts. Below, I link to each part, and for some exhibits provide brief parenthetical remarks on importance.

Deposition Transcript of Amy Edmondson. JA Exhibit 1. 33 pages. (and more in MPSJ Reply Attachment 1, Motion for Spoliation Sanctions, and Harvard Opp to Spoliation Sanctions)

Deposition Transcript of Stuart Gilson. JA Exhibit 2. 11 pages. (and more in MPSJ Reply Attachment 4 and Harvard Opp to Spoliation Sanctions)

Deposition Transcript of Plaintiff Benjamin Edelman. JA Exhibit 3. 49 pages. (and more in Motion for Spoliation Sanctions and Harvard Opp to Spoliation Sanctions)

Deposition Transcript of Leonard Schlesinger. JA Exhibit 4. 23 pages. (and more in Motion for Spoliation Sanctions and Motion for Spoliation Sanctions)

Deposition Transcript of Paul Healy. JA Exhibit 5. 28 pages. (and more in MPSJ Reply Attachment 6 and Motion for Spoliation Sanctions)

Deposition Transcript of Angela Crispi. JA Exhibit 6. 45 pages.

Deposition Transcript of Jean Cunningham. JA Exhibit 7. 20 pages.

Deposition Transcript of Nitin Nohria. JA Exhibit 8. 35 pages.

Deposition Transcript of Josh Coval. JA Exhibit 9. 4 pages.

Deposition Transcript of Shawn Cole. JA Exhibit 10. 4 pages.

Deposition Transcript of Jeff Polzer. JA Exhibit 11. 4 pages.

FRB P&P Transmission to Faculty and Draft P&P. Deposition Exhibit 2. JA Exhibit 12. 5 pages.

HBS Policies and Procedures With Respect to Faculty Appointments and Promotions. Deposition Exhibit 5. JA Exhibit 13. 13 pages. (“green book” promotion standards)

Draft FRB Report (2015) including its attachments. Deposition Exhibit 6. JA Exhibit 14. 88 pages.

Attachments: Healy Letter to Edelman, Edmondson Letter to Edelman, Edelman Initial Submission to FRB, Edelman Personal Statement, Exhibits relating to Blinkx, Exhibits relating to restaurant emails, Exhibits relating to staff interactions.

My reply to FRB including my exhibits (not included in JA).

FRB Interview Notes (2015). Deposition Exhibit 15. JA Exhibit 15. 1 page.

Crispi Handwritten Notes from Interviewing a Witness – 10/6/17. Deposition Exhibit 18. JA Exhibit 16. 1 page.

Nohria notes. Deposition Exhibit 21. JA Exhibit 17. 1 page. (“Tenure requires a system of faculty governance…”)

FRB P&P. Deposition Exhibit 26. JA Exhibit 18. 4 pages. (digital original)

Email from Reinhardt to Edmondson- November 1, 2015 – and prior emails. Deposition Exhibit 32. JA Exhibit 19. 6 pages. (Edmondson: “unfortunately, our FRB policies give him a chance to respond”; as to Youngme Moon’s report about Edelman’s role vis-à-vis projectors, “This makes me a bit anxious”)

Email from Edmondson to Crispi and others – and prior emails. Deposition Exhibit 35. JA Exhibit 20. 3 pages. (evaluating Edelman lawsuit against American Airlines)

Email from Edmondson to Schlesinger and others – September 1, 2017. Deposition Exhibit 36. JA Exhibit 21. 2 pages. (discussing additional information the FRB requested from Edelman)

Email from Edmondson to Schlesinger and others – September 1, 2017. Deposition Exhibit 37. JA Exhibit 22. 2 pages. (discussing additional information the FRB requested from Edelman)

FRB Notes – September 4, 2015. Deposition Exhibit 41. JA Exhibit 23. 25 pages. (interviewing multiple witnesses and evaluating evidence)

Email from Reinhardt to Cunningham and others – November 1, 2015 – and prior emails. Deposition Exhibit 42. JA Exhibit 24. 5 pages. (evaluating Edmonson’s remark about “likely to face a need to revise” based on information from Moon about Edelman’s role as to projectors)

Email from Gallagher to Crispi – March 2, 2015 – and prior emails. Deposition Exhibit 44. JA Exhibit 25. 3 pages. (Oberholzer-Gee requests a demo of proposed projector change, and Gallagher tells Crispi “we can pretty reasonably predict where this is going to go”)

FRB Report (2017) including attachments. Deposition Exhibit 45. JA Exhibit 26. 52 pages.

Attachments: Edmondson Letter to Edelman, Edelman Reflection on Feedback from FRB, Other Staff and Faculty with Extended Observations Yielding Possible Insight on My Character, Response to FRB Questions – “How”, Prioritized Staff and Faculty with Extended Observations Yielding Possible Insight on My Character, Edmondson Email to Edelman (September 1, 2017), Supplemental Response to FRB (September 8, 2017).

Reply to Faculty Review Board (October 5, 2017) including Favorable Public Perception of My Prior Aviation Consumer Protection Efforts, Distinctive Interactions with Staff, Junior Colleagues, and Students.

FRB Addendum and List of Changes Made.

Crispi gathering information from staff – June 28, 2017. Deposition Exhibit 46. JA Exhibit 27. 4 pages. (including criticism of a faculty member with a hearing impairment requesting Edelman’s presence to devise a classroom improvement)

Email from Edmondson to Cunningham – October 20, 2015. Deposition Exhibit 47. JA Exhibit 28. 1 page. (receiving letter excerpts that praised Edelman 16 to 1, Edmondson remarks “only one colleague expresses what we seem to have come to see… alas”)

Email from Edmondson to Reinhardt – October 23, 2015 – and earlier messages. Deposition Exhibit 49. JA Exhibit 29. 3 pages. (calling the letter excerpts “tricky” in part because only 1 of 17 “expressed real concern”, and deciding not to discuss any of the excerpts in the FRB report)

Letter from Edmondson to Edelman – July 6, 2017. Deposition Exhibit 51. JA Exhibit 30. 2 pages. (requesting additional information from Edelman about how he picks projects)

Ben Edelman – Recommended Actions – FRB Notes – December 2015. Deposition Exhibit 52. JA Exhibit 31. 1 page.

Email from Healy to Cunningham and others – August 25, 2017 – including prior emails. Deposition Exhibit 56. JA Exhibit 32. 4 pages. (Cunningham remarked that F050’s message about possible conflict of interest is “in effect an allegation” not “within the scope of the current FRB work”, that the alleged conduct does not violate the governing HBS policy, and that the same critique could be raised about other HBS faculty)

Email from Edmondson to Edelman – September 1, 2017. Deposition Exhibit 57. JA Exhibit 33. 2 pages. (requesting all of Plaintiff’s recent outside activities and work products, and a memo about how he thought about disclosures, granting four business days)

Email from Cunningham to Edmondson – July 18, 2017 – including prior emails. Deposition Exhibit 62. JA Exhibit 34. 4 pages. (assigning interviews and proposing an interview protocol)

Edmondson Notes from FRB Meeting – June 28, 2017. Deposition Exhibit 64. JA Exhibit 35. 3 pages. (first meeting of 2017)

Protocol for FRB Interviews (2017). Deposition Exhibit 65. JA Exhibit 36. 1 page.

Notes from FRB interviews of multiple witnesses. Deposition Exhibit 66. JA Exhibit 37. 6 pages.

Notes from FRB interviews of multiple witnesses. Deposition Exhibit 67. JA Exhibit 38. 2 pages.

Notes from FRB interviews of multiple witnesses. Deposition Exhibit 68. JA Exhibit 39. 6 pages.

Edmondson email to Cunningham and others – August 1, 2017 – including prior emails. Deposition Exhibit 69. JA Exhibit 40. 1 page. (reporting that one interview “wants to canonize our candidate” and another “believes him to be such a genius allowances must be made”)

FRB Notes dated November 17, 2017. Deposition Exhibit 70. JA Exhibit 41. 3 pages. (seemingly preparing remarks for Appointments Committee meeting and debriefing Schlesinger’s remarks to the Standing Committee)

Jean Cunningham Notebook Dated February-August 2015. Deposition Exhibit 72. JA Exhibit 42. 19 pages. (planning what became the FRB; in an FRB meeting, Edmondson asks “do we want this person as a senior colleague?”)

Cunningham’s Notes from FRB meeting – June 28, 2017. Deposition Exhibit 73. JA Exhibit 43. 3 pages. (first meeting of 2017)

HBS Conflict of Interest Policy. Deposition Exhibit 75. JA Exhibit 44. 4 pages.

Edelman Notes from Discussion with Healy – November 12, 2015. Deposition Exhibit 80. JA Exhibit 45. 1 page. (proposed extension to 2017)

Email from Edelman to Hall – February 1, 2016. Deposition Exhibit 81. JA Exhibit 46. 2 pages. (reporting meeting with Nohria; concern about lack of paternity leave for new fathers)

Edelman notes from Nohria call as to Appointments Committee decision – December 5, 2017. Deposition Exhibit 82. JA Exhibit 47. 2 pages. (after Nohria decision not to proceed with Edelman’s candidacy)

Email from Healy to Edelman and others – May 15, 2018 – including prior emails. Deposition Exhibit 87. JA Exhibit 48. 2 pages. (Edelman presented P&P provisions requiring an “allegation”; Healy says this did not influence many Appointments Committee members)

Email from Edelman to Lessig – December 31, 2017 – including prior emails. Deposition Exhibit 90. JA Exhibit 49. 2 pages.

Crispi gathering information from email quotes and multiple interviews. Deposition Exhibit 96. JA Exhibit 50. 29 pages.

Email from Edelman to Healy – January 24, 2017 – including prior emails. Deposition Exhibit 97. JA Exhibit 51. 2 pages.

WSJ Article: Paying Professors: Inside Google’s Academic Influence Campaign (July 14, 2017). Deposition Exhibit 99. JA Exhibit 52. 12 pages.

Exhibit Impounded. Deposition Exhibit 100. JA Exhibit 53. 1 page.

Email from Edelman to Bott – April 1, 2014. Deposition Exhibit 104. JA Exhibit 54. 2 pages. (criticizing Blinkx adware)

New York Times Article: Critic of Online Ad Firm Blinkx Is Part of the Controversy (January 31, 2014). Deposition Exhibit 106. JA Exhibit 55. 3 pages.

Faculty Conduct and the FRB (Slides). Deposition Exhibit 114. JA Exhibit 56. 9 pages. (presented to HBS faculty in a faculty meeting)

Email from Healy to Unspecified Attendees – May 14, 2015. Deposition Exhibit 116. JA Exhibit 57. 2 pages. (announcing the Standing Committee to junior faculty)

Statement from FRB about Edelman Extension – November 25, 2015. Deposition Exhibit 118. JA Exhibit 58. 2 pages. (anticipating a “second report” about Edelman in 2017)

Notes from FRB interviews of multiple witnesses. Deposition Exhibit 120. JA Exhibit 59. 11 pages.

FRB Notes of Interviewing Edelman – August 14, 2017. Deposition Exhibit 121. JA Exhibit 60. 2 pages.

Email from Edmondson to Schlesinger and others – September 1, 2017. Deposition Exhibit 123. JA Exhibit 61. 1 page.

Email from Redacted Author to Schlesinger – August 29, 2017. Deposition Exhibit 124. JA Exhibit 62. 1 page. (citing a 2015 blog as supposed criticism of a 2017 lawsuit)

Email from Schlesinger to Edmondson and others – September 7, 2017. Deposition Exhibit 125. JA Exhibit 63. 1 page. (circulating an online article criticizing Edelman)

Email from Edmondson to Gilson and others – September 7, 2017 – including prior emails. Deposition Exhibit 126. JA Exhibit 64. 2 pages. (discussing investors skeptical of Blinkx)

Interim Draft FRB Report (2017). Deposition Exhibit 128. JA Exhibit 65. 11 pages.

Interim Draft FRB Report (2017). Deposition Exhibit 129. JA Exhibit 66. 11 pages.

Addendum Summary of Standing Committee Deliberation – October 17, 2017. Deposition Exhibit 130. JA Exhibit 67. 1 page. (praising scholarship, course development and teaching; reporting Schlesinger’s remarks to Standing Committee on behalf of FRB; reporting Standing Committee vote)

Memo to Visiting Committee/BDA/AACSB – March 1, 2016. Deposition Exhibit 132. JA Exhibit 68. 8 pages. (reporting that FRB makes a recommendation to the Appointments Committee (not to the Standing Committee))

Limited Review of Edelman for Promotion to Full Professor with Tenure (Subcommittee Report) – 2015. Deposition Exhibit 135. JA Exhibit 69. 15 pages. (unanimous vote in support of Edelman’s scholarly impact)

Email from Mucciarone to Healy and others – October 2, 2015 – including prior emails. Deposition Exhibit 138. JA Exhibit 70. 2 pages. (discussing whether and how to provide FRB with relevant excerpts of letter evaluations of Plaintiff)

Email from Healy to Greschler – October 8, 2015 – including prior emails. Deposition Exhibit 139. JA Exhibit 71. 1 page. (Healy calls the letter excerpts “valuable” to share with FRB)

Notes from FRB meeting – December 10, 2015. Deposition Exhibit 140. JA Exhibit 72. 1 page. (contemplating periodic feedback to Edelman)

Notes from meeting between Crispi, Healy, and Nohria – September 27, 2016. Deposition Exhibit 141. JA Exhibit 73. 1 page. (calling for feedback to Plaintiff)

Letter from Healy to Edelman – November 23, 2015. Deposition Exhibit 143. JA Exhibit 74. 1 page. (extending Plaintiff’s appointment by two years)

Email from Healy to Edelman – January 11, 2017. Deposition Exhibit 144. JA Exhibit 75. 1 page.

Email from Healy to Edelman – January 24, 2017 – including prior emails. Deposition Exhibit 145. JA Exhibit 76. 2 pages.

Email from Redacted Author to Healy – August 17, 2017. Deposition Exhibit 147. JA Exhibit 77. 2 pages.

Email from Healy to Esty and others – October 25, 2017 – including prior emails. Deposition Exhibit 150. JA Exhibit 78. 4 pages.

Email from Edmondson to Healy and others – October 26, 2017 – including prior emails. Deposition Exhibit 155. JA Exhibit 79. 1 page.

Preamble to Edelman Reports. Deposition Exhibit 156. JA Exhibit 80. 3 pages. (Nohria’s written remarks)

Exhibit Impounded. Deposition Exhibit 157. JA Exhibit 81. 1 page.

Crispi’s Handwritten Notes – Undated. Deposition Exhibit 163. JA Exhibit 82. 2 pages. (her understanding of Edelman’s interactions with HBS staff)

Miscellaneous Events – Crispi gathering from staff. Deposition Exhibit 164. JA Exhibit 83. 4 pages. (her understanding of Edelman’s interactions with HBS staff)

Email from Crispi to Gallagher – March 2, 2015 – including prior emails. Deposition Exhibit 166. JA Exhibit 84. 3 pages. (when Crispi realizes Oberholzer-Gee will probably override the prior decision about projection changes, which she had told Edelman was final, she remarks “wish I hadn’t stuck my neck out”)

Email from Gallagher to Crispi – October 25, 2015 – including prior emails. Deposition Exhibit 167. JA Exhibit 85. 2 pages. (praising Edelman’s “balanced” contribution to a technical discussion)

Email from Oberholzer-Gee to Sebenius and others – April 12, 2015. Deposition Exhibit 168. JA Exhibit 86. 1 page. (deciding not to change MBA classrooms to make projection screen smaller)

Email from Crispi to Cunningham – July 29, 2015. Deposition Exhibit 170. JA Exhibit 87. 1 page. (gathering emails as to classroom projectors and dental insurance for certain HBS staff)

Crispi Notes from FRB Meeting – July 31, 2015. Deposition Exhibit 171. JA Exhibit 88. 1 page.

Crispi Notes about Edelman – September 22, 2016. Deposition Exhibit 173. JA Exhibit 89. 1 page.

Crispi Notes about Edelman – December 7, 2016. Deposition Exhibit 175. JA Exhibit 90. 1 page.

Email from Gallagher to Crispi – December 20, 2016 – including prior emails. Deposition Exhibit 177. JA Exhibit 91. 3 pages. (forwarding Edelman’s explanation of his tool as a prototype to evaluate whether a further improvement was prudent)

Email from Gallagher to Crispi – December 19, 2016 – including prior emails. Deposition Exhibit 178. JA Exhibit 92. 1 page. (forwarding Gallagher’s remarks to Edelman about processes to guide decision-making)

Crispi Notes – February 10, 2017. Deposition Exhibit 179. JA Exhibit 93. 1 page.

Crispi Notes about Edelman – June 28, 2017. Deposition Exhibit 182. JA Exhibit 94. 1 page.

Crispi Notes from FRB Meeting – June 28, 2017. Deposition Exhibit 183. JA Exhibit 95. 1 page. (first meeting of 2017)

Email from Edmondson to Cunningham and others – July 12, 2017 – including prior emails. Deposition Exhibit 185. JA Exhibit 96. 1 page. (circulating Edelman revised list of faculty and staff)

Prioritized Faculty and Staff with Extended Observations Yielding Possible Insight on My Character. Deposition Exhibit 186. JA Exhibit 97. 4 pages. (revised as FRB requested)

Email from Cunningham to Edmondson – July 13, 2017 – including prior emails. Deposition Exhibit 187. JA Exhibit 98. 5 pages. (interview plans)

Email from Crispi to Edmondson and others – September 23, 2017 – including prior emails. Deposition Exhibit 189. JA Exhibit 99. 1 page. (including “few additional quotes from my interviews”)

Email from Crispi to Edmondson and others – October 10, 2017 – including prior emails. Deposition Exhibit 190. JA Exhibit 100. 5 pages.

Email from Cunningham to Crispi – January 21, 2015 – including prior emails. Deposition Exhibit 193. JA Exhibit 101. 3 pages. (“launching a review process for Ben”)

Proposed Process for Faculty Colleagueship Review. Deposition Exhibit 194. JA Exhibit 102. 1 page. (“respond to the Ben Edelman situation in particular”)

Cunningham Notes when Devising FRB. Deposition Exhibit 197. JA Exhibit 103. 1 page.

Draft P&P. Deposition Exhibit 199. JA Exhibit 104. 3 pages. (in this version, “summary of the evidence gathered”)

Draft P&P. Deposition Exhibit 201. JA Exhibit 105. 4 pages.

Email from Cunningham to Edmondson and others – March 6, 2015. Deposition Exhibit 202. JA Exhibit 106. 1 page.

Draft P&P. Deposition Exhibit 203. JA Exhibit 107. 3 pages.

Edelman Notes from Discussion with Cunningham – January 16, 2008. Deposition Exhibit 204. JA Exhibit 108. 1 page. (agenda included asking what is required when serving as an attorney)

Email from Healy to Nohria – November 27, 2017. Deposition Exhibit 217. JA Exhibit 109. 2 pages. (analysis of votes)

Email from Healy to Nohria – December 5, 2017. Deposition Exhibit 218. JA Exhibit 110. 11 pages. (analysis of votes)

Nohria Notes. Deposition Exhibit 222. JA Exhibit 111. 1 page.

Email from Nohria to Edelman – January 28, 2016. Deposition Exhibit 225. JA Exhibit 112. 1 page. (next steps during extension)

Email from Nohria to Deavor – November 17, 2017. Deposition Exhibit 232. JA Exhibit 113. 1 page. (“no doubt he is an outstanding scholar in an important field”)

Email from Healy to Edelman – July 16, 2015. Document bearing the beginning Bates BGE004165. JA Exhibit 114. 1 page. (transmitting P&P)

Email from Edelman to Edmondson – November 6, 2015. Document bearing the beginning Bates BGE004537. JA Exhibit 115. 1 page. (sending reply to FRB Report)

Edelman Reply to FRB Report (2015). Document bearing the beginning Bates BGE004538. JA Exhibit 116. 26 pages.

Email from Wegner to Edelman – October 9, 2009 – including prior emails – HBS case copyright. Document bearing the beginning Bates BGE009876. JA Exhibit 117. 5 pages. (Edelman questions whether HBS has the copyright it claims; Wegner is awaiting guidance from Harvard attorneys)

Email from Wegner to Edelman – November 5, 2009 – including prior emails – HBS case copyright. Document bearing the beginning Bates BGE009886. JA Exhibit 118. 6 pages. (Edelman questions whether HBS has the copyright it claims; Wegner is awaiting guidance from Harvard attorneys)

Email from Kester to Edelman – March 11, 2010 – including prior emails – HBS case copyright. Document bearing the beginning Bates BGE009903. JA Exhibit 119. 2 pages. (reports a 1947 vote by HBS faculty to transfer case copyright to Harvard)

Email from Edelman to Kester – March 24, 2010 – including prior emails – HBS case copyright. Document bearing the beginning Bates BGE009914. JA Exhibit 120. 3 pages. (questions whether the 1947 vote binds in light of a subsequent Harvard University policy that faculty own their work products)

Email from Hall to Edelman and others – February 24, 2017 – including prior emails. Document bearing the beginning Bates BGE011394. JA Exhibit 121. 2 pages. (gathering documents)

Email from Edmondson to Edelman – September 27, 2017 – transmitting draft 2017 FRB Report. Document bearing the beginning Bates BGE011923. JA Exhibit 122. 1 page. (granting six business days for Edelman to respond)

Email from Edelman to McGinn – November 7, 2017. Deposition Exhibit 95. JA Exhibit 123. 3 pages. (reviewing prior and recent disclosures; evaluating whether disclosure was required under the COI Policy; discussing availability of P&P)

Email from Nohria to Edelman – April 24, 2018 – whether FRB followed its rules. Document bearing the beginning Bates BGE013273. JA Exhibit 124. 1 page. (in response to Edelman’s complaint, Nohria reiterated that proper process was followed)

Email from Edelman to Oberholzer-Gee and Applegate – July 31, 2016. Document bearing the beginning Bates BGE018193. JA Exhibit 125. 3 pages. (Edelman’s suggestion to improve the Canvas course management tool, HBS IT’s rejection of his suggestion, Edelman’s acceptance of that outcome)

Email from Clark to Oberholzer-Gee and others – April 17, 2017. Document bearing the beginning Bates BGE018214. JA Exhibit 126. 1 page. (ATSC notes)

Email from Edelman to MacNeill – April 26, 2007. Document bearing the beginning Bates BGE019163. JA Exhibit 127. 2 pages. (office projector)

Email from Edelman to Flaherty – May 12, 2008. Document bearing the beginning Bates BGE019181. JA Exhibit 128. 2 pages. (firewall exception)

Photo of Edelman office projector as installed. Document bearing the beginning Bates BGE019218. JA Exhibit 129. 1 page.

Photo of Edelman office projector as installed. Document bearing the beginning Bates BGE019220. JA Exhibit 130. 1 page.

HBS Conflict of Interest Policy. Document bearing the beginning Bates HBS0000031. JA Exhibit 131. 4 pages.

Letter from F029. Document bearing the beginning Bates HBS0011697. JA Exhibit 132. 4 pages.

Email from Hall to McGinn and others – September 2, 2017 – including prior emails. Document bearing the beginning Bates HBS0011916. JA Exhibit 133. 3 pages. (questioning process and timing)

Email from F030 to Nohria – February 28, 2017. Document bearing the beginning Bates HBS0014318. JA Exhibit 134. 1 page. (when and how to evaluate Edelman)

Email from F024 to Healy – June 14, 2017. Document bearing the beginning Bates HBS0014551. JA Exhibit 135. 1 page. (preparing to evaluate Edelman)

Letter from F017. Document bearing the beginning Bates HBS0014598. JA Exhibit 136. 6 pages.

Letter from F018. Document bearing the beginning Bates HBS0014699. JA Exhibit 137. 5 pages.

Letter from A014. Document bearing the beginning Bates HBS0014704. JA Exhibit 138. 5 pages.

Letter from F007. Document bearing the beginning Bates HBS0014747. JA Exhibit 139. 4 pages.

Letter from A012. Document bearing the beginning Bates HBS0014831. JA Exhibit 140. 3 pages.

Limited Review of Edelman for Promotion to Full Professor with Tenure (Subcommittee Report) – 2017. Document bearing the beginning Bates HBS0014942. JA Exhibit 141. 22 pages. (unanimous vote in support of Edelman’s scholarly impact; finding “Ben is clearly over the bar in terms of first audience (the academy), and what’s most unusual, he is also over the bar on both managerial and educator audiences”)

Letter from A034 to Greschler and Healy – October 25, 2017. Document bearing the beginning Bates HBS0015004. JA Exhibit 142. 1 page. (attaching addendum to Edelman Report)

Email from Edmondson to Healy and others – November 25, 2015. Document bearing the beginning Bates HBS0016548. JA Exhibit 143. 4 pages. (FRB remarks on Edelman extension)

Email from Adam Nash to Office of the Dean – December 10, 2014. Document bearing the beginning Bates HBS0017316. JA Exhibit 144. 1 page. (about restaurant emails)

Email from Cunningham to Esty – December 10, 2014. Document bearing the beginning Bates HBS0017324. JA Exhibit 145. 1 page.

Email from Cunningham to Edmondson and others – September 22, 2017. Document bearing the beginning Bates HBS0018576. JA Exhibit 146. 3 pages. (finalizing 2017 Report)

Email from Edelman to Edmondson and Cunningham – September 8, 2017. Document bearing the beginning Bates HBS0020559. JA Exhibit 147. 2 pages. (sending requested information)

Email from Crispi to Edmondson and others – September 23, 2017 – including prior emails. Document bearing the beginning Bates HBS0020611. JA Exhibit 148. 1 page. (including “few additional quotes from my interviews”)

Email from Edmondson to Edelman – September 27, 2017. Document bearing the beginning Bates HBS0020692. JA Exhibit 149. 1 page. (transmitting draft 2017 FRB Report)

Preliminary draft 2017 FRB Report. Document bearing the beginning Bates HBS0020774. JA Exhibit 150. 11 pages.

Email from Crispi to Edmondson and others – October 10, 2017 – including prior emails. Document bearing the beginning Bates HBS0020861. JA Exhibit 151. 5 pages.

Submitted to Appointments Committee on behalf of Benjamin Edelman for Appointment to Professor – November 16, 2017. Document bearing the beginning Bates HBS0021668. JA Exhibit 152. 3 pages. (full packet index page)

Letter from A001. Document bearing the beginning Bates HBS0021763. JA Exhibit 153. 4 pages.

Email from Nohria to Mucciarone – November 16, 2017. Document bearing the beginning Bates HBS0022730. JA Exhibit 154. 1 page. (requesting vote tally)

Email from Cunningham to Edmondson and others – March 6, 2015. Document bearing the beginning Bates HBS0022986. JA Exhibit 155. 1 page. (revising draft P&P)

Draft P&P. Document bearing the beginning Bates HBS0022987. JA Exhibit 156. 3 pages.

Draft P&P. Document bearing the beginning Bates HBS0022996. JA Exhibit 157. 3 pages. (with comments including “scope of work” “which allegations were within or out of bounds”)

Email from Edmondson to Healy and Cunningham – September 27, 2017. Document bearing the beginning Bates HBS0023241. JA Exhibit 158. 2 pages. (reporting transmission of FRB Report to Edelman)

Angela Crispi Notes from FRB Witness Interviews – September 9, 2015. Document bearing the beginning Bates HBS0023425. JA Exhibit 159. 2 pages.

Email from Crispi to Redacted Recipient – March 24, 2017. Document bearing the beginning Bates HBS0023982. JA Exhibit 160. 2 pages. (Edelman interactions with HBS IT staff)

Email from Crispi to Connolly – March 24, 2017 – including prior emails. Document bearing the beginning Bates HBS0023984. JA Exhibit 161. 1 page. (Edelman interactions with HBS IT staff)

Email from Crispi to Redacted Recipient – March 24, 2017 – including prior emails. Document bearing the beginning Bates HBS0023989. JA Exhibit 162. 2 pages. (Edelman interactions with HBS IT staff)

Email from Cunningham to Crispi and others – July 14, 2017. Document bearing the beginning Bates HBS0024291. JA Exhibit 163. 3 pages. (assigning interviews)

Email from Cunningham to DiCicco – July 17, 2017. Document bearing the beginning Bates HBS0024294. JA Exhibit 164. 3 pages. (interview task)

Email from Cunningham to Edmondson – August 23, 2017. Document bearing the beginning Bates HBS0024378. JA Exhibit 165. 3 pages. (suggesting that proposed subject is “actually outside the mandate of the current FRB review”, comparing practices of other faculty)

Email from Crispi to Cunningham – August 18, 2017. Document bearing the beginning Bates HBS0024315. JA Exhibit 166. 1 page. (prior notes)

Email from Healy to Cunningham and Edmondson – August 25, 2017. Document bearing the beginning Bates HBS0024381. JA Exhibit 167. 1 page. (disclosures)

Email from Cunningham to Healy and Edmondson – August 25, 2017 – including prior emails. Document bearing the beginning Bates HBS0024382. JA Exhibit 168. 1 page. (disclosures, comparison to standard applied to other faculty)

HBS Policy on Outside Activities of the Faculty. Document bearing the beginning Bates HBS0000009. JA Exhibit 169. 8 pages.

Email from Moon to Nohria and others – March 31, 2015. Document bearing the beginning Bates HBS0024527. JA Exhibit 170. 1 page. (possible changes to promotions process)

Email from Healy to Moon and Nohria – March 31, 2015. Document bearing the beginning Bates HBS0024741. JA Exhibit 171. 1 page. (possible changes to promotions process)

Exhibit Impounded. Document bearing the beginning Bates HBS0024831. JA Exhibit 172. 1 page.

Tally Sheets. Document bearing the beginning Bates HBS0024841. JA Exhibit 173. 56 pages. (as to promotion process changes, spring 2015)

Exhibit Impounded. Document bearing the beginning Bates HBS0024946. JA Exhibit 174. 1 page.

Amended Complaint. JA Exhibit 175. 32 pages. (digital original)

Answer to Amended Complaint. JA Exhibit 176. 18 pages.

Plaintiff’s Responses to Defendant’s First Set of Interrogatories. JA Exhibit 177. 25 pages.

Plaintiff’s Responses to Defendant’s Second Set of Interrogatories. JA Exhibit 178. 18 pages.

Defendant’s Responses and Objections to Plaintiff’s First Set of Interrogatories. JA Exhibit 179. 4 pages.

Exhibit Impounded. Defendant’s Amended Response to Plaintiff’s First Set of Interrogatories. JA Exhibit 180. 1 page.

Defendant’s Responses and Objections to Plaintiff’s Third Set of Interrogatories. JA Exhibit 181. 6 pages.

Affidavit of Benjamin Edelman. JA Exhibit 182. 100 pages. (FRB correspondence granting 6 business days to reply,
Emails and calendar entries as to interactions with Oberholzer-Gee at ATSC meetings,
Publisher web page with no disclosure versus
article with disclosure,
Correspondence with HBR editor indicating their disclosure policy,
Competition Policy International disclosure policy,
Timely and full disclosure to HBR editor,
Discussion with HBR editor about HBR IT limitations restricting disclosures,
HBR staff revised other disclosures and article text without consulting me,
Evaluations of my LCA course in 2017)

Affidavit of Nitin Nohria. JA Exhibit 183. 4 pages.

Civil Docket for Bazerman v. Am. Airlines, Inc., Case No. 1:17-cv-11297-WGY (D. Mass 2017) (as of October 24, 2025). JA Exhibit 184. 12 pages.

Additional Pages from the Deposition Transcript of Jean Cunningham. JA Exhibit 185. 3 pages.

Additional Pages from the Deposition Transcript of Angela Crispi. JA Exhibit 186. 2 pages.

Additional Exhibits from Further Briefing

excludes exhibits linked above. selected, substantive exhibits only. others included within briefing exhibits.

Plaintiff’s Reply ISO Partial Summary Judgment

Edmondson Email – September 12, 2017 – MPSJ Reply Attachment 2. (“quotes”)

Nohria Notes – MPSJ Reply Attachment 3. (“quotes”)

Memo comparing Edelman evaluation to other candidate evaluations – MPSY Reply Attachment 5. (“reviews” plural, opposing Harvard’s claim that there was a single review with two reports)

Plaintiff’s Motion for for Sanctions for Spoliation of Evidence

Letter from Harvard counsel (indicating dates on which litigation holds were put in place on email accounts of Harvard custodians)

Email from Reinhardt to Edmondson – October 25, 2015 – and prior emails (quoting Edmondson as to letter excerpts: “these quotes were largely positive” and then FRB makes no mention of them; “hope” that FRB report will “alter… the SC discussion”)

Multiple September 2017 emails as to whether and how to address the American Airlines lawsuit in the FRB’s review, and how to communicate about that with Plaintiff and with the rest of the FRB

Edelman email to Datar – July 30, 2021 (sending an attorney memorandum as to FRB violations)

Memorandum from Attorney Morris Baller – February 14, 2020 (evaluating Edelman claims)

Email and letter from Edelman to Harvard counsel – November 4, 2020 (calling for preservation, and proposing custodians and scope)

Email from Edelman to Healy – April 28, 2018 (presenting arguments as to violations of P&P)

Email and Letter from Edelman to Garber – June 19, 2018 (presenting arguments as to violations of P&P)

Email between Healy and Nohria – May 16, 2018 (discussing Edelman “preparing to go to the next level”)

Email from Edelman to Healy and Nohria – May 16, 2018 (presenting arguments as to violations of P&P)

Cunningham Email to Attorney Berkman – May 17, 2018 (forwarding Edelman arguments as to violations of P&P)

Email between Nohria and Healy – October 25, 2017 (discussing “fears that there will be a legal follow up” as to Edelman’s candidacy)

Defendant’s Opposition to Motion for Sanctions for Spoliation of Evidence

Tally Sheets as to Appointments Committee Vote – impounded

Emails Pertaining to Edelman Placement at MIT

FRB “Talking Points” in preparation for Appointments Committee discussion

Declaration of Christopher Pringle as to HBS email server configuration and data retention

This post is part of Summary Judgment Motions and Evidence.

In an August 2025 hearing about discovery disputes, the court requested full briefing on my allegation that Harvard failed to preserve relevant evidence.  My Motion for Sanctions for Spoliation of Evidence flags some of the evidence known to be lost.  Highlights:

• Senior Associate Dean Paul Healy personally wiped his tablet, destroying the only contemporaneous notes of at least one key meeting. He erased the tablet eight months after emailing Dean Nohria about the likelihood of litigation and two months after receiving my increasingly formal claims both in person and by email.  (More on timing in the next section.)

• Amy Edmondson, chair of the FRB, was by her own testimony “very disorganized” in email. She failed to retain and produce 68% of messages known to have been sent to or from her, relating to the FRB.  In addition, she produced nine relevant emails from her Recoverable Items\Purges folder, indicating that someone not only deleted them but cleared them from Deleted Items after the litigation hold was in place.  Indeed, Microsoft documentation indicates that messages in turn end up in Purges if a user manually purges them.  To this, HBS offers a declaration from IT leader Christopher Pringle, and argues that HBS’ “background retention expiration policy” (not a manual command by Edmondson or anyone else) probably moved the messages to Purges.  But even on Harvard’s telling, someone cleared these messages out of Edmondson’s Deleted Items folder (i.e. by emptying that folder) at some point after Harvard put Edmondson on a litigation hold.  Once Edmondson was told to retain documents, she should not have cleared her Deleted Items folder.

The emails found in Purges portray Edmondson in a bad light: She received letter excerpts that were, on her own evaluation, overwhelmingly favorable to me (“these quotes are largely positive”), yet she omitted them from the FRB’s report.  In addition, she attempted to turn Standing Committee discussion against me and expressed a personal preference against my candidacy (“hope that our report will alter…”), hoped I would see the “writing on the wall” and leave HBS, and regretted that I had procedural rights that I might use to my benefit (“unfortunately, our FRB policies give him a chance to respond”).  (Russcol Aff. Attachments K and L.)

• FRB member Stu Gilson intentionally deleted every responsive email. His production, from five months on the FRB, contained exactly zero emails.

In response, Harvard argues that it retained enough, listing evidence it did retain.  But this ignores the critical gaps created by spoliation.  My Reply calls out the thin evidence of who said what in the Standing Committee deliberation about the FRB report—a pivotal moment where later notes indicate members were initially skeptical (“Who did we really talk to?”).  The only official record is a one-page “addendum” summary claiming Len Schlesinger “provided additional context”—but the addendum directly contradicts Schlesinger’s testimony that he told the Standing Committee nothing beyond what was in the FRB report.  With this incomplete and contradictory record, Paul Healy’s destroyed notes would have been the primary evidence to resolve what was actually said.  The Standing Committee discussion is particularly important because I allege that committee should not have evaluated the FRB report at all.  (See Amended Complaint ¶103-111 and Plaintiff’s Opp to MSJ 21.)  Evidence of who said what would confirm the harm from that breach.

Another important gap comes from emails sent to a single recipient.  If both participants deleted such an email, the message is permanently lost.  For example, Edmondson’s 2015 discussions with Reinhardt largely survived because Reinhardt kept copies, but we have no record of similar discussions with Gilson.  Given that Edmondson deleted 68% of her emails and Gilson deleted 100%, any private deliberations between them are now unavailable.  To this, Harvard says we have no evidence that there were one-on-one discussions between Edmondson and Gilson.  But there were Edmondson-Reinhardt one-on-one emails, and Gilson filled Reinhardt’s seat.  And Edmondson and Gilson were the only two Appointments Committee members on the FRB, making certain subjects natural for them to discuss directly.  Where Edmondson was so disorganized that less than a third of known messages remain, and Gilson intentionally deleted all messages without exception, I say inferences should be drawn against them about what messages they lost and destroyed.

Yet other messages were nearly lost when no custodian kept a copy, but the messages are nonetheless known because they were copied within other messages.  By Harvard’s count (citing Athay Aff.), there are 20 messages like this.

As is typical in a spoliation case, I cannot know exactly what I do not have.  However, the evidence recovered from Edmondson’s “Purges” folder—showing her mishandling evidence and lamenting my procedural rights—demonstrates that witnesses deleted significant emails.  Indeed, Edmondson’s “Purges” messages provide “smoking gun” evidence of animus.  I’m lucky that these messages were, just barely, preserved.  I can only imagine what more is, alas, completely gone.

Timing of the duty to preserve evidence

A party’s obligation to preserve evidence arises as soon as litigation is “reasonably foreseeable.”  We need not speculate on when Harvard should have foreseen litigation, because Harvard’s own leaders repeatedly memorialized their expectations of a lawsuit in writing:

1. March-May 2018 Meetings and Emails. In a series of meetings and emails from March to May, I alerted both Healy and Nohria of my claims.  Healy testified that he “assumed [I] might consider litigation” and “didn’t know whether [I] would go so far as … bring a lawsuit” but thought it was possible.”
2. May 9, 2018 Healy Email. On May 9, Healy wrote to Nohria that I “indicated that [I am] seriously considering suing the school.” (source.)
3. May-June 2018 Provost Correspondence. On May 31 and June 11, I wrote to then-Provost Alan Garber explaining that “rules” had been “violated” and “procedural commitments … weren’t followed.” (source.)  My June 19 follow-up quoted and analyzed the P&P and identified “violations” of Harvard’s “commitments.” (transmission email, memo.)

Inexplicably, Harvard did not initiate a litigation hold until August 2021—more than three years later—and even then, only for a small fraction of custodians (including just one FRB member).  The other four FRB members (and various other custodians) were not placed on a hold until February 2023, after I filed this lawsuit. (Athay letter, July 16, 2025.)

Harvard’s “internal university review” defense

In its Opposition, Harvard argues that my March to June 2018 communications indicated only that I was complaining to the Provost,  but not contemplating litigation.  Harvard’s Opposition oddly ignores the 2015 and 2017 documents in which Harvard witnesses themselves discussed—and memorialized in writing—the prospect that I “will sue” and “that there will [be] a legal follow up.”

Even worse, Harvard ignores Healy’s May 9, 2018 email to Nohria in which he says I “indicated that [I am] seriously considering suing the school.”  Healy is right that that’s what I said.  With that statement, contemporaneously memorialized by Healy to Nohria, how can Harvard argue I was only planning to complain to the Provost and not planning litigation?

Quantifying the harm

The impact of Harvard’s multi-year delay is not speculative; it can be mathematically estimated from Amy Edmondson’s production.  The data shows a clear correlation between the passage of time and the loss of evidence: For emails from the 2015 FRB, Edmondson’s still had 27% as of the August 2021 start of litigation hold.  For emails from the 2017 FRB, two years more recent, 40%.  This analysis supports the unremarkable proposition that emails tend to get lost over time.  The best fit for these numbers is a geometric decay of about 20% per year.  (Calculations: After four years, at a 20% decay rate, a person would have just (1-0.2)^4=41% of messages left, while after six years, a person would have (1-0.2)^6=26% left.  Those two numbers are both within 1% of what we observe from Edmondson’s production.)

If 20% of messages get lost each year, on average, it’s obviously important to preserve as early as possible.  It is correspondingly harmful that Harvard inexplicably delayed activating a litigation hold for years, as described above.

This post is part of Summary Judgment Motions and Evidence.

Had it not been for the subjects the FRB considered, there is no doubt that I would have been promoted to tenure.  My motion for partial summary judgment explains:

Both the Subcommittee and Standing Committee confidently concluded that Plaintiff had more than met HBS’s standards for academic work. (See subcommittee report.) Letters in support of Plaintiff’s candidacy were effusive. (SF 89.) Internal letters praised “an amazingly intellectual resource” and “knowledge and brilliance” in “an unusual combination of talents” and an “extraordinary” publication record (letter from F029) with “exceptional impact” including “economic theory at its best” and “risk-taking [in] confronting public issues” (letter from F017).

External letters praised “the careful forensic work that academics are capable of but rarely spend the time to carry out … break[ing] the ivory tower mold” (letter from A001) “as rigorous as … impactful” (A012), a “force of nature [and] amazing role model,” finding “no one like him” in “quality of the top papers, quantity of papers, quantity in top journals, diversity of outlets, influence in the academy and, perhaps most importantly, influence beyond the academy.” (A014) One letter-writer said a recent talk by Plaintiff was the “best discussion I’ve ever seen of any paper in any context … everyone in the room learned something … [a perspective] no other economist (or lawyer) could provide.” (A014)

The Subcommittee concluded Plaintiff was not just “clearly over the bar in terms of [academic research], he is also over the bar on both managerial and educator audiences”—meaning Plaintiff satisfied all three paths to HBS tenure, an achievement the Subcommittee called “most unusual” because only one is required. (See subcommittee report p.18.) Notes from the 2017 Standing Committee discussion stated “Everyone in attendance believed that [Plaintiff] passed our standards for scholarship, course development, and teaching.” Healy remembered that Plaintiff’s work was “really excellent and more than met our standards for promotion to full professor.” Dean Nohria believed that Plaintiff’s scholarly contributions were “well over the bar” of expectations for a tenured professor and that Plaintiff’s teaching met HBS’s standards.

There’s considerably more within the exhibits.  F018: “economic theory at its best.”  “I cannot imagine not promoting him to tenure.”  “One can only marvel at his unbounded energy, the depth of his mind, and his creativity in the way that he frames economic problems. These are not the sort of skills one learns in classes or seminars. They are borne of an intense, innate curiosity about every facet of economic activity and a drive to make the world a better place.”  F007: “[H]e is a special talent and we need him.”  “I can’t imagine that there will be much disputing that Ben meets our standard for outstanding intellectual contribution.”  “I support strongly the case for tenure.”

In a final attempt to minimize the FRB’s breaches, Dean Nohria claims he would have withheld support for my candidacy regardless, based on the FRB’s critiques of my lawsuit against American Airlines and my based on the alleged deficiencies in my disclosures.  This argument fails because Nohria’s information was derived entirely from the FRB report—a report tainted at its core by the failings previously detailed.   In particular, the FRB’s investigation into these subjects lacked an allegation, expanded impermissibly and at the last minute, and failed to reach the fact-based conclusions required by the P&P.  Had the FRB followed the rules, the record before Nohria would have looked totally different.

Furthermore, Nohria admits he found it significant that the Appointments Committee vote was not stronger in favor of my promotion. (SF 81-83.)  However, that vote was tainted by the FRB’s distorted presentation of witness testimony.  Explaining the rationale for their AC votes, numerous faculty members cited claims from the FRB report—claims I could have rebutted had the FRB shared the evidence and otherwise complied with P&P.  The vote was not a correct evaluation of my merits, but a consequence of the FRB’s distortions.

I do not claim to be perfect.  But I excelled at the things Harvard Business School values: high-impact, practical research and the unique challenge of HBS case-method teaching.  There is no other job quite like HBS faculty, and I dedicated myself to it.

The record is clear: My promotion to tenure would have succeeded had the 2017 FRB followed its rules.  When HBS bypassed those rules in favor of a predetermined outcome, I was deprived of a career I loved and a promotion I earned.  Hence this lawsuit.

This post is part of Summary Judgment Motions and Evidence.

My complaint alleges several forms of bad faith: People serving both as FRB members/staff and as witnesses.  Misrepresenting evidence.  Imposing rules different from, and beyond, the governing policy.  Discovery confirms these claims, and more.

Improper dual role as both FRB member/staff and as witness

HBS Executive Dean for Administration Angela Crispi had a personal interest in ensuring that I did not receive tenure.  In her deposition, she affirmed that it was “a reasonable goal for the FRB to have” to stop me from criticizing HBS’s IT organization—a department that reported to her.  This goal has no basis in the P&P.  To the contrary, suppressing faculty feedback on institutional improvements subverts the school’s mission.  Since I was likely to continue to recommend IT improvement as long as I remained at HBS, Crispi’s only path to “stopping” me was to ensure my termination.

A particularly obvious example of Crispi’s manipulation of both evidence and process is her insertion of “quotes” from “interviews” that were not quotes and were not from interviews.  (See separate post about manipulation of evidence.)  Her manipulation also included characterizing my assistance to faculty with disabilities as “situations” for the FRB to evaluate (first bullet, redacted, in her June 28, 2017 notes), a conclusion she reached without speaking to affected faculty about why they sought my help or whether they felt HBS was adequately meeting their needs.  Crispi testified that I’m “not an expert” on disability accommodations, and for that reason she was “concern[ed]” about what I was doing.  But multiple faculty with disabilities thought HBS wasn’t doing enough to help them, and they came to me both for advocacy (it’s often easier to speak up for a friend) and creativity (as I had ideas beyond what others had suggested).  These faculty said they preferred my approach, and my top priority was helping them.  That isn’t a “situation” calling for FRB evaluation, and if it’s relevant to my character, it is only positive.

In parallel, Crispi told the FRB her understanding of my supposed interactions with staff, but over and over, her understanding was wrong.  Consider her claim about projection screens in MBA classrooms.  I had objected that it was unwise to reduce screen size, both because some instructors used detailed slides (e.g. diagrams), and because some students had less-than-perfect vision.  Closely related, I just couldn’t wrap my head around an “upgrade” that made screens smaller.  When I offered these concerns, Crispi scolded me in an email: “Perhaps everyone’s effort to be polite has led you to believe there remains an opening. There is not, and thus I ask and urge you to put this matter to rest.”  She provided this email to the FRB, too.  As a result, the 2015 FRB report stated that “the project did move ahead.” (FRB 2015 Report.)  Despite Crispi’s strong words, her claim was incorrect.  When the Academic Technology Steering Committee (“ATSC”) saw a demonstration of how the project would shrink screens, chair Felix Oberholzer-Gee decided to keep the screens as they had been, just as I proposed.  Crispi knew that was the outcome even before Oberholzer-Gee announced it, yet she didn’t tell the FRB that my recommendation was in fact followed.  Quite the contrary, she suppressed emails showing that she was chagrined and frustrated to be overruled, and that HBS’s CIO praised my conduct in the ATSC meeting where this decision was made.

One might hope careful investigation by the FRB would uncover Crispi’s misstatements.  It did not.  Upon receiving the FRB’s draft 2015 report, I contacted the ex-Senior Associate Dean who had led the MBA program when IT first proposed to reduce screen size.  In parallel with speaking with me, the ex-SAD sent the FRB remarks about my role, portraying me favorably (quite differently from what Crispi had told her FRB colleagues).  Reviewing the ex-SAD’s message, Edmondson remarked to FRB colleagues: “we are likely to face a need to revise.”  Instead, the FRB decided to dig in its heels.  That left me to attempt to rebut in my reply—grounded, in part, in ex-SAD Yougme Moon’s effusive praise for my contribution: “I am SO grateful that you alerted me to this.  I am also grateful that you were able to help Media Services come up with such a win-win solution.  You are a freaking genius when it comes to this stuff.  I’m really so grateful.”  But my reply was no substitute for FRB accuracy from the start.  Ultimately the 2015 FRB got this situation totally wrong, and discovery reveals how it happened: Because Crispi led them astray.  See also Opp to MSJ 3-4.

In a footnote, I offer three more examples of Crispi mischaracterizing my interactions with staff:

Crispi told the FRB that Plaintiff’s request to access his office computer from outside the HBS campus was rejected. (Ex. 163, Crispi Dep. 53-54.) In fact, Plaintiff and HBS IT staff devised a narrowly-tailored exception. (BGE19181.)

She was also incorrect in her claim that Plaintiff’s request for an office projector was rejected as “not something we do.” (Crispi Dep. 23-25.) In fact, Plaintiff and HBS staff identified a way to install an office projector and did so successfully. (BGE19163, BGE19220, BGE19218).

Crispi similarly claimed Plaintiff “wanted to submit case to HBP w/o assigning copyright.” (Ex. 163.) Plaintiff’s actual objection was that, in violation of Harvard University policy, HBS claimed cases were work product owned from the outset by the university. After consulting counsel, HBS changed its approach. (BGE9886, BGE9876, BGE9903, BGE9914; Ex. 6 at 18.)

Crispi’s contemporaneous notes confirm her personal preference that I be pushed out of HBS: “doesn’t seem worthy of being an HBS faculty member.”  She even criticized me for things that would ordinarily be seen as positive “Find him disingenuous … brings in candy.”  Yes, I have a terrible sweet tooth.  Yes, I sometimes brought snacks to enjoy with others.  That’s not disingenuous and shows nothing wrong with my character.  This was neither a proper subject for FRB to evaluate, nor a proper basis to criticize me.

On weightier questions, too, Crispi repeatedly presented me in the worst possible way.  A June 2010 discussion about dental insurance for long-serving staff is illustrative.  I had learned from a HBS food-service worker that she and a dozen colleagues lacked dental insurance.  HBS provided dental insurance to all faculty and all other staff, but oddly claimed these staff were ineligible because they began working at HBS in the 1980’s, before dental insurance was available.  I wrote a brief memo explaining why the governing union agreement, by its terms superseding all prior agreements, required HBS to provide dental insurance.  Presented with this authority and argument, HBS to its credit soon provided the benefit that these staff had requested for years.  (Though I never heard of HBS reimbursing staff’s prior dental expenses!  Well, it’s never too late.)  I am proud that I brought the matter to the attention of appropriate people, and proud also that when I laid out the arguments supporting the workers’ request, there was little further delay in getting them what they sought.  Nonetheless Crispi called this an “event” and an “incident” for the FRB to evaluate.  And when my unit head Brian Hall contacted FRB to urge that my positive activities (this among others) be considered as the FRB evaluated my character, Crispi opposed that suggestion, claiming I had created “problems” “including labor relations” and “managers having to look like bad cops.”  Here too, it’s easy to see why Crispi took offense: The entire HBS staff reports to her including, yes, the managers who had withheld dental insurance from the long-serving staff.   But I was right, and her team got it wrong.  However convenient it was to blame me, the real problem was HBS’s own errors, i.e. the inexplicable prior decision to withhold dental insurance from senior staff.

Influenced by Crispi’s remarks, the FRB ultimately rejected my claim that projects like this showed my good character, instead arguing that my efforts to help others were “not really relevant” and “could actually carry institutional risk for HBS.”  Here the FRB badly misunderstood the true “risk” HBS faced.  The risk to HBS wasn’t the possibility of paying a dozen staff a few hundred dollars extra per year.  No, the risk was that if food-service workers became more frustrated about the incorrect denial of benefits, they could seek help from a journalist.  Indeed, most people would have found it outrageous that full-time Harvard employees in 2010 lacked dental insurance (not to mention staff who had worked there for 20+ years), so this would have received (and deserved) a harsh headline.  My efforts to resolve the problem confidentially, directly, and with integrity served to reduce that risk, the real risk.  Ultimately HBS’s problem came not from me helping affected employees get what they were plainly entitled to, but from improperly denying those benefits in the first place.

Meanwhile, Cunningham called me a “sore spot” for her, revealing her personal preference against my candidacy.  When she acted as a witness for FRB, she too omitted relevant information.  For example, the FRB in 2017 criticized me for failing to get permission before filing a class action lawsuit.  As the FRB discussed that criticism, Cuningham should have reported that in 2008 (just one year into my time at HBS), I had asked her what approval was required to serve as an attorney, and she told me no such approval was required. (Opp to SJ 24.)  Instead it appears she was silent.  The FRB thus criticized me for failing to seek approval without mentioning, and seemingly without knowing, that I had asked Cunningham years earlier, and she had said no approval was required.

Each of these subjects was easy to investigate, and these errors were correspondingly easy to avoid.  If the FRB had asked me, I would have told them.  If the FRB had checked with other sources, they could have easily learned the truth.  If the FRB had asked Crispi and Cunningham follow-up questions, as they did to other witnesses, they could have uncovered inconsistencies that would have led to the full picture.  But Crispi was an FRB member, and Cunningham the FRB’s sole staff.  What they said went unchallenged, and the FRB sought no corroboration with other sources.

Harvard protests that no P&P provision forbids a single person from serving as both a witness and as a FRB member or staff.  Of course—which is why I raise these arguments as part of my good faith and fair dealing claim, not part of my breach of contract claim.  I reasonably expected a fair and orderly procedure where evidence would be verified.  By accepting the uncorroborated testimony of Crispi and Cunningham—both of whom had personal interests in the outcome—the FRB subverted the contractual benefits I was promised.

Selective enforcement and discriminatory scrutiny

Discovery confirms that the FRB subjected me to scrutiny not applied to other faculty.  Ben Esty, HBS’s self-proclaimed chief compliance officer, stated that HBS singled me out, remarking “one could interpret the selective enforcement of our community standards on a single candidate as discriminatory.”  (attribution to Esty.)  Cunningham corroborated this admission: “to be fair to Ben, we haven’t audited any faculty member for compliance with the [conflict of interest] policy.”

Selective enforcement is a prima facie violation of the duty of good faith.  Evaluating me under a unique, heightened set of rules—while ignoring the conduct of others—is the antithesis of the fair process the P&P contemplates.

Predetermined conclusion

Documents indicate that the FRB made up its mind before the 2017 proceedings even began.  In 2015, FRB members discussed—and memorialized in their notes—the prospect of getting me to leave HBS voluntarily by “put[ting] a structure of resources in place that [I] would find onerous and leave.”  In the FRB’s first meeting in 2017, before the FRB collected a single piece of evidence, Stu Gilson said that I had “priors”, “thought the Blinkx incident alone should have been enough to fire [me],” described himself as “seething,” and viewed me as “irredeemable.”  In that same meeting, Edmondson stated that it was “obvious that we shouldn’t have him on the senior faculty.”  When Schlesinger expressed a desire for “affirmative evidence that [I have] changed … behavior,” another member responded, “At face value, we don’t see the evidence”—all this still before collecting a single piece of evidence.

These internal communications undermine Harvard’s claim of a legitimate process in 2017.  Stating these views before the 2017 process began, the FRB members revealed their predetermined conclusion.  Predetermining the conclusion denied me the fair, evidence-backed proceeding the P&P calls for.

Manipulation of evidence

Discovery reveals that the FRB intentionally skewed its 2017 report to diminish the overwhelming volume of positive witness remarks.  When Cunningham first drafted the 2017 report, her draft contained 27 positive and 7 negative remarks, which she intended to be “representative” of the interview notes.  To that, FRB member Len Schlesinger objected that “the positive comments overwhelm the less-than-positive feedback,” instructing that more negative comments be added to shift the balance.  Cunningham and Crispi then added six more negative comments, nearly doubling the volume of negative comments and bringing the final report to 27:13.

It was Cunningham’s task, not Schlesinger’s, to read all the notes of witness interviews.  In fact, Schlesinger’s deposition nowhere indicates receiving notes of anyone else’s interviews.  If other FRB members received each others’ notes, that’s not apparent in the record, and Crispi specifically indicated not receiving copies of other FRB members’ interview notes.  If Schlesinger hadn’t even read notes from others’ interviews, his recommendation of more negative comments could not have been driven by a bona fide assessment of the substance of those interviews.  Rather, his call for more negative comments stems directly from his (and the FRB’s) predetermined conclusion.

***

The duty of good faith and fair dealing calls for a reasonable and fair process even in areas where P&P is silent.  In the areas described above, the 2017 FRB fell far short.

References: Opp to MSJ 23-25.

This post is part of Summary Judgment Motions and Evidence.

These interrelated procedural violations led the FRB to hasty conclusions that were both muddled and wrong, all to my detriment.

The FRB opened without an allegation in 2017.

The P&P unambiguously required the FRB to begin every case by drafting an allegation and providing it to the faculty member.  But the 2017 FRB did not provide me with a summary of an allegation that it intended to evaluate, violating the P&P and impeding my effort to defend myself.

Without a specific allegation to investigate, the FRB should have stopped its work.  Instead, its initial 2017 letter resolved to “assess” three subjective criteria: whether I understood why my conduct was “problematic,” whether there was evidence of changed behavior, and whether such changes would be “sustained.” (SF 19.)  These are matters of opinion, outside the questions that the P&P authorizes an FRB to consider.  Notice that the P&P calls for inquiries on questions of fact: “whether misconduct has occurred” and “whether [the] candidate has upheld the School’s Community Values.” (MPSJ 15.)

The 2017 letter also fails to state an “allegation” because the word “allegation” means a claim of specific wrongdoing.  The FRB’s vague letter stated no such claim.

Harvard claims the 2017 FRB was merely a continuation of the 2015 proceedings: “when the FRB reconvened in 2017, there was no need for a new allegation.” (Memo IOT MPSJ.)  This is incorrect as a matter of procedure because the P&P authorizes an FRB to prepare “a draft report” (singular, emphasis added), not a series of reports over several years.  It is also wrong because contemporaneous documents recognized that the 2015 and 2017 FRBs were distinct.  In particular, HBS called the 2015 and 2017 proceedings “reviews” (plural) (Ex. 151), and Deans Nohria and Healy both testified that the 2017 proceeding was “another FRB” (Nohria twice: 69:15 and 71:1; Healy).  While the 2015 report addressed specific incidents, the 2017 report did not—confirming a shift in scope. (Reply ISO PMSJ 5.)  As a new proceeding, the 2017 FRB was required to follow the P&P from the start, beginning with a formal allegation.

This is no technicality.  Drafting the P&P, Dean Cunningham noted that a defined allegation is a “key element” that establishes the FRB’s “scope of work.”  By treating the scope as infinite or indefinite, Harvard denied me fair notice, prevented the timely gathering of relevant evidence, and subverted the P&P’s requirement for an organized, orderly procedure.

The FRB expanded its scope improperly and at the last minute.

The FRB dramatically expanded its scope on September 1, 2017.  This expansion was egregiously untimely: it occurred 22 days after witness interviews had concluded, 18 days after my own interview, and with the deadline looming for the FRB’s report.  By this point, the FRB should have begun, carefully, drafting its report.  Instead, the FRB was back to the drawing board—collecting new evidence on new subjects.  Despite the lateness, the shift was substantive: With this expansion, the FRB suddenly began investigating my legal service and general outside activities.

Even Dean Cunningham, staff to the FRB, initially objected, noting that these additions were “in effect an allegation” and “outside the mandate of the current FRB review.” (SF 36.)  Nevertheless, these subjects were included and ultimately comprised approximately 40% of the final report. (MPSJ 15.)

The FRB’s late expansion compelled tight deadlines at all subsequent stages, and the FRB ultimately granted me only four business days to respond—a stark departure from the weeks or months allowed for prior requests.  That duration was well outside the norm for FRB or other important HBS procedures.  Later, when the FRB finally sent me its draft report, it for the first time identified specific work products with allegedly-insufficient disclosures.  Yet, there too the FRB granted inadequate time for me to get to the bottom of their claims—just six business days despite the complex multi-part document requiring all manner of other responses too (e.g. as to the anonymized decontextualized quotes).  The end date of this compressed schedule was arguably necessitated by HBS’s promotion timeline—ultimately, by when the President would evaluate promotion recommendations from the Dean.  But start of the schedule resulted from the FRB’s untimely expansion.  Had the FRB fixed its agenda at the start, there would have been plenty of time and no need to rush.

The FRB’s compressed schedule also caused a second problem: Working in a hurry, they made extra mistakes.  Three that are particularly galling:

• False citation.  The FRB claimed negative media coverage of my 2017 class action lawsuit, but the claim was without basis in fact.  In support of that claim, the FRB mistakenly cited a blog post regarding an entirely different subject. (Details.)
• Web page versus article.  The FRB cited a brief disclosure on a publisher’s web page linking to an academic article, but ignored a more detailed disclosure within the article itself. (Details.)
• HBR editorial decision.  My disclosure in a publication in Harvard Business Review (HBR) was drafted by an HBR editor, not me.  I had timely provided full information to the editor, a Harvard employee.  He in turn was constrained by HBR’s internal IT system, which on HBR’s web site called for a single author disclosure rather than a separate disclosure for each article. (Details.)

My Affidavit (beginning at ¶16) reviews these and other errors in the FRB’s criticism of my disclosures.

In my reply to the FRB, I alerted the FRB to the inaccuracies I had found.  I informed the FRB that their criticism of negative media coverage of the lawsuit was totally wrong, citing an article about something else completely (first bullet above).  I pointed out that the HBS Conflict of Interest (COI) policy did not require disclosure on the identified articles because none met the policy’s “directly related” test.  I further noted that my work for Microsoft had concluded before those articles were even published—a fact the FRB either ignored or hadn’t learned at all.

Despite my reply, the FRB made no revisions.  They refused to acknowledge the timeline of my Microsoft work or correct the erroneous media citation.  Their refusal to revise is telling: the irrelevant blog post was their only “evidence” of negative media coverage.  Without it, their critique was revealed to be mere speculation.  Alarmingly, they chose to retain the error rather than rework this section.

With more time—as there would have been if FRB hadn’t expanded at the last minute—FRB would more likely have avoided these mistakes.  Or more time would have allowed me to find additional mistakes including those laid out in my affidavit.

By its own admission, the FRB did not reach conclusions.

The FRB’s final report failed to reach the conclusions required by the P&P.  Under the P&P, a report must include “conclusions on whether misconduct has occurred” and, in tenure cases, “whether a candidate has upheld the School’s Community Values.”  Rather than make these determinations, the FRB offered only vague intimations that I had, in some unspecified way, fallen short.

Had the FRB attempted to reach the required conclusions, it would have had to do the rigorous work of applying specific policies to my actions.  To claim that I had violated the Conflict of Interest Policy, the FRB would have needed to identify the relevant parts of the policy, and explain how my conduct purportedly did not comply.  If the FRB wanted to criticize the class action I originated, it would have needed to identify what policy was allegedly implicated by the lawsuit or its supposed “PR risk to Harvard”.

Remarkably, the FRB explicitly admitted its own failure to investigate and reach conclusions.  On the first page of its report, the FRB wrote: “this process was not an investigation, and we did not seek to pass judgment.”  But the P&P allows no such disclaimer; it expressly mandates both “investigation” and “conclusions.”  Resorting to implication and innuendo in lieu of a formal finding was a direct breach of the P&P’s promises.

Harvard’s Reply claims the FRB fulfilled its obligations because it interviewed witnesses and wrote a report.  Ordinarily, that might constitute an investigation.  But here we have the puzzling fact that the report states on page one that it “was not an investigation.”  Surely that remark has meaning, and with that prominent admission, Harvard cannot easily claim the report was, in fact, an investigation.  The FRB faculty are all distinguished scholars.  If they believed they had conducted a proper and complete investigation, why would they say they didn’t?  Whether this disclaimer was intended as an apology to colleagues or an effort to deflect criticism of gaps and violations, the result is the same: The P&P required an “investigation,” and the FRB explicitly stated its work “was not an investigation.”  Harvard is stuck with the FRB’s admission on its first page, and this is a breach of contract.

References: MPSJ at 14-18, Opp to MSJ at 18-21

This post is part of Summary Judgment Motions and Evidence.

The P&P draws a critical distinction between what the FRB should do and what it must do.  It provides that the FRB’s draft report “should include the evidence gathered,” but then states that “[t]he faculty member… will have an opportunity to review the allegation, the evidence gathered, and the draft report, and to respond in writing.” (emphasis added)

The difference matters.  The report “should” include evidence, leaving open the possibility that certain materials may not be appropriate for a document circulated to dozens of readers.  But whatever evidence might be withheld from the report, the P&P is unambiguous about disclosure to the faculty member: the faculty member “will” get to see “the evidence gathered.”  Not just the evidence the FRB considers important, not just the evidence it cites or relies on, but “the evidence gathered”—all of it.

This may sound like a generous promise.  But it did not arise by accident.  The FRB was created in response to concerns that prior allegations against faculty had been mishandled.  (Healy Dep 35: “there had been a controversial case … a few years prior …”)  Against that backdrop, it is entirely unsurprising that the P&P established meaningful protections including a firm guarantee about what evidence would be shared with the faculty member under review.  Remarkably, an earlier draft of the P&P called for providing “a summary of the evidence gathered,” a rule that was changed, in a later draft carried through to the final version, to “the evidence gathered” without qualification.  The change from “a summary of the evidence gathered” to “the evidence gathered” shows that this provision means exactly what it says.

Harvard emphasizes the P&P’s separate discussion of confidentiality.  But nothing in the P&P’s confidentiality discussion even approaches the mandatory “will” commitment to provide “the evidence gathered.”  Any accommodation for privacy must fit within what the P&P makes mandatory.

The evidence the FRB withheld and mischaracterized

There is no serious dispute that HBS withheld “the evidence gathered” in 2017.  HBS leaders concede that FRB notes of witness interviews were part of the evidence gathered. (SF 22.)  The FRB interviewed 21 witnesses, yet provided me with neither the interview notes nor even the identities of the witnesses.  The problem extends beyond witness interviews: The FRB also gathered other documents but did not share those either. (Id.)  Some of those materials were of dubious reliability.  (See e.g. Schlesinger Dep. admitting circulating criticisms of me from an author he admitted he didn’t know, whose opinion he admitted having no reason to credit.)

By withholding interview notes, the FRB was able to mischaracterize evidence.  My Motion offers three examples:

(1) The FRB suggested that Plaintiff mistreated staff but was deferential to faculty, relying on a quote, “With his superiors, he has more of a filter.”  But the full statement in the notes was, “With his superiors, he has more of a filter (as we all probably do).”  Far from the sharp criticism presented in the report, the witness actually reported a normal tendency to speak differently in different contexts.  Furthermore, the interview notes make clear that the interviewee specifically flagged this as “2nd/3rd hand” information (although the FRB sought only personal knowledge), and this witness confirmed in his deposition that the comment was not based on anything he witnessed firsthand, as all his interactions with Plaintiff were favorable. (SF 59.)

(2) The report included another professor’s remarks: “He’s abrupt. He lacks grace. He’s more apt to pressure others—he asks questions the way you might in a seminar,” but left out the further statement: “But he’s intellectually sharp. Asks great questions. He agrees to disagree.”  The excerpt suggests closed-mindedness, but the full statement indicates the opposite.  (Tellingly, Edmondson’s contemporaneous summary of this interview was strongly positive. (SF 58 citing Ex. 40.))

(3) An IT staff member was quoted as: “He can have a tendency to threaten to take something to the next level.” But the full quote continues: “… the next level, but he has taken a step back.” (SF 60.) Far from indicating that Plaintiff was harsh as of 2017, this witness actually indicated improvement. Since the FRB was allegedly examining evidence of changed behavior, it misled readers when it omitted information about timing and change.

Specific evidence that I now know the FRB gathered in 2017, but that it did not share with me:

But there are so many more! Consider this evidence of the FRB cherry-picking negative quotes from witnesses whose true views were positive.  From one faculty member’s interview, the FRB selected the single quote “He has worked on being less harsh, but his views are still quite clear to those who hear him.” But this witness also wrote a letter about his views on my candidacy.  When not filtered through note-taking (in this case, by FRB member Len Schlesinger) and selecting quotation (by FRB staff Jean Cunningham), this witness said he “strongly support[ed] the case for tenure.”  If HBS had provided me with “the evidence gathered,” as the P&P required, I could have demonstrated that the true interview was positive and the FRB’s quote was unrepresentative and hence unreliable.

• Edmondson interviews of six faculty members – six single-spaces pages
• Gilson interviews of five faculty members – six single-spaced pages
• Schlesinger interviews of six faculty members – eleven single-spaced pages
• Crispi interviews of four staff members – two single-spaced pages
• Crispi circulated three files of notes about me (this file pages 1-4, her notes from my interview, and the staff interview notes linked immediately above)
• Articles gathered and circulated by FRB members: Flyertalk posts, Techrights article, Financial Times article and more, View From The Wing article

My Response to Harvard’s Second Interrogatories offers eight single-spaced pages critiquing specific quotes in the FRB’s report, one by one, explaining what was wrong with each.  Representative categories of problems: Incomplete quote changing the meaning of full sentence or section, contrary to email evidence, contrary to contemporaneous summary, broader interview is positive, contrary to witness’s true views expressed elsewhere in his own words, speculation outside the scope of the witness’s knowledge.

Quotes not found in interview notes

Two of the negative “quotes” in the FRB’s report do not appear anywhere in the FRB’s interview notes.  These are the words that were inserted late in drafting by HBS Executive Dean for Administration Angela Crisp, who in her transmission email said the insertions were “quotes” from her “interviews.”  Asked in deposition, she admitted that they are not quotes: “they were not direct quotes”, “these aren’t direct quotes”, “they’re not here as a direct quote”.  She also admitted that they’re not from interviews: “It was not so much that it would be an interview, but we would be looking back [at emails]”; “Is your read that these are not actual comments that were made by witnesses in their interviews?” “I don’t know”; “Do you have a memory of where you found these two quotes to add them?” “No, I don’t”.  (MPSJ 13.)  My motion calls it “fabrication” for the FRB to include non-quotes not from interviews, when readers and even the other FRB members all understood these to be quotes from interviews.  I stand by the term.

After I called out that these “quotes” from “interviews” did not appear in interview notes, Harvard attempted to justify them by pointing to similar language found in emails Crispi had received months earlier. (Memo IOT MPSJ 8.)  That explanation only underscores the problem.  FRB Chair Amy Edmondson instructed other FRB members that certain witnesses “need to be interviewed” (emphasis added)—and using a specific “interview protocol”, at that.  New interviews, according to a standardized protocol, are plainly not the same as searching historic email discussions.  Every other FRB member did the assigned work: Every other quote in the FRB report matches something found in interview notes (albeit some taken out of context, artfully excerpted, or otherwise mischaracterized, including as discussed above).  It’s just these two last-minute insertions by Crispi that are, inexplicably, not found in interview notes.

Harvard now contends that the FRB report did not purport to provide verbatim quotes.  But the FRB report introduced the remarks with formulations such as “comments such as”, “using phrases such as,” and “expressed as” (pages 4-5)—each reasonably signaling words taken directly from interviews. (MPSJ 13.)  And everyone involved understood them to be quotes at the time: Crispi said she added “a few additional quotes from my interviews” (emphasis added), Edmondson discussed “the quotes”, Schlesinger commented on “the quotes” in a draft FRB report, Nohria took notes about “quotes,” and Gilson used the word “quotes” seven times in his deposition. (Dep. 67:4, 112:12, 155:3-4, 155:11, 155:25, 156:21-22, 157:10.)  Only in litigation did Harvard begin to claim these weren’t quotes.  Harvard’s position is ex-post rationalization, contrary to what everyone understood at the time.

Had I been provided the interview notes, I would have immediately challenged the fabricated quotations as well as the other mischaracterized quotes.  My Response to Harvard’s Second Interrogatories shows the precision and power this critique would have had.  The FRB’s criticism, grounded in these supposed quotes, would have collapsed under examination.

Thin evidentiary basis

Withholding information about which quotes came from which witnesses, the FRB also concealed the thinness of its factual foundation.  For example, of the FRB’s 21 interviews, only one was from HBS’s large IT department, with which I worked closely.  That fell well short of Edmondson’s instructions that Crispi interview HBS’s CIO plus “1-2 other IT representatives.”  Nothing in the FRB report disclosed (or even suggested) that the CIO was not interviewed or that only one IT staff member was interviewed.

Nor did readers have any way to find out that nearly half of the FRB’s negative quotations—six of thirteen—came from just two of the 21 witnesses. (MPSJ 13.)

Neither I nor readers of the report could know that the FRB’s discussion of staff interactions rested on such a narrow base.  The HBS Standing Committee later sought precisely this information—according to the FRB debrief, asking “Who did we [the FRB] really talk to.”  But the FRB’s report did not say, and the FRB’s representative to the Standing Committee says he declined to answer. (Schlesinger Dep. 135.)

In fact Edmondson went on to misrepresent how many staff the FRB talked to.  Earlier in 2017, I provided the FRB with a list of people it could interview.  Edmondson’s notes, which appear to be her planned remarks to the Appointments Committee (the best evidence of what she actually said, since no witness seems to remember), claimed that the FRB supplemented my list with “two to three added staff interviews.”  This was not true, either: Crispi interviewed exactly four staff, all from my list—so Edmondson’s notes (and, presumably, her remarks to the AC) dramatically overstate the number of staff interviewed.  A reader of the FRB’s report certainly could not know that the FRB interviewed only four staff.  Seeing that my list suggested 14 staff, and hearing from Edmondson that the FRB had added “two to three” more, a reasonable Appointments Committee member would expect the number of staff interviews to be considerably larger.

Meanwhile, interview evidence indicates that I worked well with staff.  From Crispi’s notes: “nothing but positive things to say” (staff witness 1), “good to work with” (2), “great ideas and they come from a good place” (3), “worked very well with teams and students” (4).  Remembering the interviews, Crispi affirmed that witnesses 1 through 4 had positive reflections about working with me: “she had had positive experiences”, “interview generally positive”, “mostly positive”.  (Her deposition did not discuss her impression of witness 1, but the notes are entirely positive.)  Nonetheless, and contrary to both Crispi’s notes and her recollection, the FRB report suggested that I did not work well with staff.  This was not even supported by Crispi’s impression, as the only FRB member present for the staff interviews.  Nor was it supported by other evidence gathered by the FRB.

How I would have used the evidence

In my Response to Harvard’s Second Interrogatories and in an Affidavit, I explained other ways that interview notes would have allowed me to rebut or contextualize witness remarks.  I identified quotes that were misleadingly truncated, based on limited interactions, contrary to the thrust of the overall interview, contrary to the email evidence, based on limited interactions in the period at issue, and speculation outside the scope of the witness’s knowledge.

An example illustrates the prejudice.  Three negative comments came from one witness, with whom I interacted in exactly two in-person meetings in the relevant period.  The FRB’s interviews included two other witnesses (1, 2) who were present at all times and reported nothing amiss in my conduct.  Harvard responds that two meetings could be enough to form a view, and Harvard block-quotes witness’s stated rationale. (Memo IOT MPSJ 9.)  But the witness’s rationale is simply wrong.  The witness criticized me for requesting that certain classes be recorded, as if I sought to record for my own enjoyment.  In fact I requested recordings to assist a colleague slated to teach the same material the next semester.  I provided my suggestion to my unit head, who checked with a then-Dean, and both thought the suggestion was valuable for the colleague’s professional development.  Had HBS provided “the evidence gathered,” as the P&P required, I could have demonstrated this that the recording was entirely proper and the witness’s critique was, at best, confused.

Instead, the FRB reduced these remarks to anonymous, decontextualized snippets.  I was left unable to identify who was criticizing me, based on what interaction, or why.

My Response to Harvard’s Second Interrogatories also lays out the importance of the positive quotes.  It’s not easy to rebut negative claims about character.  But overwhelmingly many positive claims—from witnesses in a strong position to assess, thanks to extended interactions—would have been persuasive.  For example, to the criticism “I’ve never seen him change his mind,” I found three quotes in which other witnesses specifically report having seen me change my mind, learn, or agree to disagree.  I would also have called out positive remarks from 18 different people, a page-and-a-half single-spaced, some in the strongest possible terms: “Most ethical person I know on the faculty”, “Always there to help”, “No negatives at all”, “Unsurpassed”, “Honesty++ … Integrity++ … Willingness to help colleagues is extraordinary. … #1 among non-senior faculty”, “Most generous… fiercely ethical”, “might uphold standards more than most of us in ways that are challenging for us.”  If anyone had suggested I was arrogant, I would have cited a colleague’s remark that I am “very quick to be modest.”  And I would have pointed out that the staff I worked with most closely, such as the assistant who sat outside my office (witness 2 in Crispi’s notes), had only positive things to say about me.

If I had access to notes about FRB’s discussions, I would have called out gems like Edmondson’s September 4, 2015 remark “everyone loves him because he gets them free stuff.”  Indeed, I often went out of my way to help where my skills aligned with others’ needs.  (Representative examples: Guidance on processing large datasets and navigating the boundaries of fair use.  Drafted letters to landlord, insurance company, and car dealership as to faculty and staff personal disputes.  Help staff prepare their annual state and federal tax returns.  Taught a RA’s low-income non-native-born parents how to rent a car cost-effectively in the US.)   There’s nothing wrong with any that.  The FRB’s criticisms are hard to reconcile with Edmonson’s report that “everyone” “loves” me.  If Edmonson had shared that assessment—her distillation of evidence the FRB gathered—I would have incorporated it in my defense.

Ultimately, “the evidence gathered” means what it says.  I was fighting hard for my chosen career, and I would have used every bit of available evidence to the utmost.  HBS promised to provide the evidence and was required to do so.  It did not.

References: MPSJ 11-14, Opp to MSJ 14-17.

This post is part of Summary Judgment Motions and Evidence.

In its Motion to Dismiss in May 2023, Harvard said it “does not concede that the FRB principles … constituted an implied contract, legally binding on Harvard.”  My Opposition criticized this position, and the Court largely sidelined it—relegated discussion to a one-sentence footnote before applying the FRB Principles & Procedures (“P&P”) as the contract I say it is.

Harvard’s Motion for Summary Judgment revives this argument in full force.  Harvard contends that the FRB P&P is merely “guidance,” not contractual; that HBS reserved the right to amend the P&P; that I didn’t negotiate the terms; and that my inability to recall reading the P&P during the 2015 and 2017 proceedings somehow renders it nonbinding.  Harvard MSJ 12.

This may be the most surprising argument in recent briefing—especially for Harvard faculty members: Harvard says the promises it makes are not promises it is obligated to keep.

I say Harvard has it wrong, both legally and factually.

One, Harvard cites the wrong authority.  It cites Jackson v. Action for Bos. Cmty. Dev. Inc., but Jackson was clarified by O’Brien v. New England Tel. & Tel. Co. (rejecting any “rigid list of prerequisites” for a policy to be contractual, criticizing Jackson for creating “confusion”, and instructing considering all the circumstances to determine whether a policy is contractually binding).

Two, I present multiple factors showing that the P&P is contractual.

• No unilateral modification clause.  The P&P includes no statement that HBS can unilaterally change it.
• Mandatory language.  Key procedural provisions are stated clearly and in mandatory, non-flexible terms (e.g. “will have an opportunity to review … the evidence gathered”).
• Policy created for me.  Discovery reveals that Harvard created the FRB process—and the P&P itself—with the specific intent to use it to review me.  Describing what became the FRB, Dean Cunningham wrote that she spoke with Dean Nohria about “launching a review process for Ben.” (Ex 193.)  In a meeting about what became the FRB, the first-stated “objective” was to “respond to the Ben Edelman situation in particular.” (Ex 194.)  If this policy was created for me, how could I not be entitled to its protections?
• Faculty-wide adoption.  I did not individually negotiate the P&P, but neither does any faculty member negotiate any Harvard policy.  The P&P was emailed to the entire faculty including me, and it was the lead item at an in-person faculty meeting, where faculty provided feedback endorsing what the P&P envisioned.  This is the standard way HBS evaluates and adopts important policies.  I read the policy then, attended and participated in the meeting when it was discussed, found it appropriate, and felt confident in its terms. (Edelman Dep. 177.)
• Reaffirmed during proceedings.  Dean Healy resent the P&P to me at the start of the 2015 FRB, without any suggestion that it was optional or tentative.  Edmondson likewise invoked P&P promises and never suggested they were nonbinding.
• Harvard acted as if bound.  Harvard’s own witnesses understood themselves to be constrained by the P&P, even when they would have preferred otherwise.  For example, Edmondson wrote to Reinhardt, “unfortunately, our FRB policies give him a chance to respond”. (Ex 32.)  If P&P were merely aspirational, she could have ignored it.

It’s frustrating to be litigating such a fundamental question.  I seek nothing more than what the policy promises.  If Harvard leaders wanted to approach my candidacy differently, they could have written a different policy.  But this is the policy they chose, and I say they are bound by it.

The principle at stake is much broader than just me or this policy.  If Harvard is not bound by the P&P, what other policies can it disregard?  Can faculty rely on Harvard’s many policies on other subjects?  What about students?  Are Harvard’s policies binding commitments, or merely suggestion that leadership may ignore at will?

References: Opp to MSJ 8-12, 15, MPSJ 10-11.

The entire P&P applies, not just the half-page Harvard claims.

Harvard also argues that even if the P&P is binding, only part of it applies to me.  Specifically, Harvard points to a half-page section titled “Notes on Promotions, Reviews and Reappointments”, and claims that only that section governed the FRB’s review because the review occurred in connection with a possible promotion. Harvard MSJ 20.  According to Harvard, the rest of the P&P does not apply.

Harvard’s argument is wrong:

• The policy was created for my case.  As discussed above, the entire FRB process—and the P&P itself—was conceived with me in mind.  With the P&P written for me, how could just half a page, out of four pages, apply to my evaluation?
• Harvard provided, and referenced, the entire policy.  Healy and Edmondson sent and referenced the P&P as a whole, without any suggestion that only a portion applied.  If only half a page applied, someone would have said that.
• Harvard acted as if the full P&P applied.  The FRB followed procedural requirements that are outside the narrow section Harvard now cites, including sending me a draft report and inviting my response.  But under Harvard’s interpretation, those provisions would not apply because they do not appear within the half-page Harvard relies on.

Indeed, Edmondson complained internally that the FRB policies “unfortunately … give him [me] a chance to respond” (Ex 32)—lamenting a procedure that, on Harvard’s telling, was not required.  If that procedure was not required, Edmondson could have just ignored the non-binding requirement, rather than complain about it.  Harvard’s current interpretation is irreconcilable with how Edmondson and others understood the P&P at the time.

The reality is straightforward.  The P&P establishes a single set of procedures for all FRB proceedings.  The “Notes on Promotions, Reviews and Reappointments” section does exactly what its title indicates: It explains how the FRB interacts with other procedures.  It does not override, narrow, or eliminate the rest of the P&P—and certainly does not convert a comprehensive policy into a half-page exception.

References: Opp to MSJ 14.

Last month, Harvard and I each filed motions for summary judgment—legal filings asking the court to decide all or part of the case based on undisputed facts, without a trial.

Harvard argues that it should prevail entirely and the court should dismiss the case.  I argue that I should prevail on key portions—specifically, my breach of contract claim—while my other claims (breach of the duty of good faith and fair dealing and promissory estoppel) should be resolved at trial.

The filings

From the court docket, with hyperlinks and OCR for reader convenience:

• Harvard’s Motion for Summary Judgment (MSJ) and Statement of Facts (with my objections), my Opposition, Harvard’s Reply.
• My Motion for Partial Summary Judgment (MPSJ) and Statement of Facts (with Harvard’s objections), Harvard’s Opposition, my Reply.
• 1241 pages of evidence (excluding table of contents and document separators) including excerpts from 11 deposition transcripts, 163 exhibits, five sets of interrogatory responses, affidavits from me and Dean Nohria, and various other documents.
• My Motion for Sanctions in Spoliation of Evidence (submitted based on the court’s instruction in an August hearing) arguing that Harvard failed to preserve key evidence—indeed, intentionally deleted it. Accompanying materials: my evidence ISO spoliation motion, Harvard’s Opposition and evidence, and my Reply with additional evidence.

Other ways to explore the documents:

• My video explainer highlights key evidence and arguments.
• This NotebookLM is an AI model trained on litigation documents.  Try asking “What does Edelman say the FRB did wrong?” or “Did the FRB provide Edelman with the evidence gathered?”  As always, AI can make mistakes.  But NotebookLM provides citations, so it’s easy to check the underlying documents.

Reflections

Let me remark briefly on context.  Until 2014, I was more than on track as a junior faculty member at HBS—excellent research, teaching at least good enough.  (I became excellent at teaching later.)  That year, two media blow-ups caused the world to get angry at me, and caused many at HBS to question whether I could stay.  But the nature of those blow-ups wasn’t grounds to fire me.  Ultimately HBS created a new Faculty Review Board, operating under a new “P&P” policy, and HBS twice reviewed me under this procedure.  This case is about whether HBS did what the P&P promised—whether the P&P rules are legally binding, whether HBS complied, and what should be done if it did not.  I say the rules bind and HBS did not comply.  With the benefit of discovery, I say I can prove it.  Hence my motion for summary judgment.

Six posts highlight key themes in the filings:

• The FRB P&P is definitely a contract, but Harvard says it isn’t.
• The FRB withheld “the evidence gathered” and mischaracterized evidence.
• The FRB opened without an allegation in 2017, expanded its scope improperly and at the last minute, and by its own admission did not reach conclusions.
• The FRB acted in bad faith, and predetermined the outcome.
• My candidacy would have succeeded, and I would have been promoted, had it not been for the FRB’s breaches.
• HBS senior faculty destroyed evidence, though they had a duty to preserve it.

Hearing on the summary judgment motions is scheduled for January 14.  Stay tuned!