Miltenberg, Sacks: “Harvard Prof Fights Release Of School’s Data Fraud Report,” Law 360


Boston – A Harvard researcher put on leave for allegedly fabricating research data told a Boston federal judge Friday it would be “poor policy” to let the school make public an internal 1,200-page report to dispute claims in a $25 million defamation suit she filed after her employer’s accusations placed her at the center of a “media firestorm.”

During a hearing, an attorney for Francesca Gino, a behavioral scientist and tenured professor the school put on unpaid leave last June, argued the school shouldn’t be able to publicly file its report finding Gino had committed research misconduct because the “self-serving” document has no bearing on Harvard’s early-stage effort to find fault in the professor’s lawsuit.

“Her claims don’t rely on the substance of the report. Impound them at this point,” said Gino’s lawyer Julie Ann Sacks of Nesenoff & Miltenberg LLP. “You have documents that are essentially allegations against professor Gino for research misconduct. She’s already been damaged. She can’t find a job. She has been the subject of a media firestorm. To publish them on the public docket, this court would essentially be assisting in perpetuating the damage.”

The lawsuit claims Harvard defamed Gino by issuing retraction notices and sharing the contents of its internal report, and it says the professors who alerted Harvard to the allegations — Uri Simonsohn, Leif Nelson and Joseph Simmons — had run a “vicious, defamatory smear campaign” by publishing a four-part series on the research issues on their blog, Data Colada.

Harvard asked the court to allow it to publish the report in the public record, stating the document supports its bid to dismiss the defamation case because it contradicts many of Gino’s claims in the complaint. Separately, The Reporters Committee for Freedom of the Press and The New Yorker magazine have urged the court to allow the unsealed posting of the final report due to its bearing on the high-profile fight in academia.

U.S. District Judge Myong J. Joun pressed Harvard counsel Jenny Cooper of Ropes & Gray LLP on why the report should be filed — and considered — at this stage in the case when the focus is squarely on whether the complaint adequately alleges legal claims against the defendants.

Cooper said the complaint is “full of characterization after characterization” about the Harvard report. The attorney said juxtaposing the complaint and report could undercut many of Gino’s claims against the school.

“It is a cardinal rule in motions to dismiss that when an allegation about a document is contradicted by the document itself, it is the document that controls, not the allegation about the document,” said Jeffrey Pyle of Prince Lobel Tye LLP, who represents Simonsohn, Nelson and Simmons.

Pyle added that the Harvard report is already a judicial document subject to a presumption of public access that can’t be overridden by Gino’s desire to tamp down on publicity surrounding the misconduct claims.

“The reputation of a plaintiff is not an overriding interest,” Pyle said. “There are lots of embarrassing things that come out in court proceedings, as we see in the news. That is the nature of court proceedings. Gino is the one who decided to sue. She is the one who decided to incorporate all her claims about the final report.”

The professors have separately asked the court to dismiss Gino’s defamation claims against them, arguing their blog posts were constitutionally protected speech and not actionable because they simply expressed a view of what occurred and disclosed all the underlying facts that led to their conclusions. 

Gino is represented by Andrew T. Miltenberg, Kara L. Gorycki, Tara Davis and Julie A. Sacks of Nesenoff & Miltenberg LLP.

Harvard University is represented by Douglas E. Brayley and Jenny K. Cooper of Ropes & Gray LLP.

Simonsohn, Nelson and Simmons are represented by Jeffrey J. Pyle of Prince Lobel Tye LLP.

The Reporters Committee for Freedom of the Press and the New Yorker Magazine are represented by Katie Townsend of the RCFP and by Robert A. Bertsche of Klaris Law PLLC.

The case is Gino v. Harvard University et al., case number 1:23-cv-11775, in the U.S. District Court for the District of Massachusetts.