New Papers Surface In Gender Bias Suit

Although the trial for a gender discrimination suit filed against Harvard Business School by one of its former professors concluded in federal court last month, the University's lawyer this week filed papers with the court saying that he has uncovered more documents which may be relevant to the case.

According to the lawyer for Barbara Bund Jackson '66, the former associate professor of industrial marketing, Harvard's lawyer found the new documents during his investigation into why he had not discovered the tally sheet of two B-School faculty votes on Jackson's tenure until late in the trial.

Harvard's lawyer, Allan A. Ryan, Jr. this week also filed an affidavit testifying that he did not intentionally withhold the documents. Ryan did not return repeated phone calls.

Jackson charges Harvard University and Dean of the Business School John H. McArthur with denying her tenure in 1983 because she is a woman. Judge Douglas P. Woodlock has yet to hand down a verdict on her request for a tenured post at the B-School and $847,000 in lost income and legal fees.

If the judge finds in her favor, the marketing scholar will become the fifth tenured woman in the school's 80-year history and one of four women among the current 90-member faculty.

Lawson said that he has not been told what the newly-discovered documents contain, but that he and his client will examine them Monday morning. He added that should he judge the documents to be important to the case, he will have 10 days after the verdict is announced to introduce them as new evidence.

"Harvard University is a very respected institution, but the laws apply to everybody. I guess I've gotten used tothe fact that they think they're above the law,"Jackson said.

Lawson said he and his client have not ruledout the possibility of appealing Woodlock'sdecision. "It would depend on how we lost" whetherthey would appeal, he said.

The tally sheet which prompted Ryan'sinvestigation came to light during testimony byone of the school's deans during the eight-daynon-jury trial. The record shows that in its firstballot, the B-School faculty recommended Jacksonfor tenure by a vote of 47-7. But in a secondvote, taken two days later, the margin supportingJackson had changed to 29-27.

Woodlock said the shift in the vote wassignificant enough that in the second to last dayof the trial, he recommended that the case reenterdiscovery, normally a pre-trial period ofgathering information. But a day later, bothattorneys said they did not want to prolong thetrial and proceeded with closing arguments.

Early on in the suit, Jackson and her attorneycharged that evidence important to their case hadbeen denied, as many of the documents theyrequested were destroyed by Harvard. Courttestimony showed that Harvard directed 10 years'worth of confidential tenure records to beincinerated. The University has maintained thatthe destruction was inadvertent.

Legal experts contacted yesterday about therecent developments in the case, said thatcontrary to what one might think, it is notunusual for discovery of documents to continueafter the end of a trial.

"It isn't always the case that the records willbe as centralized as you may think," said MichaelB. Rosen, associate general counsel for BostonUniversity, who said he customarily handles tenuredisputes. "It's not unknown that documents show uplast minute. You don't know where to look toguarantee that you discovered them all."

Rosen added, however, that he was not aware ofany cases at B.U. in which documents surfacedafter a trial had been completed.

Professor of Law Charles R. Nesson said theoccurrence of documents turning up after the endof the trial is "not as unusual as it ought tobe."

"Each party is obliged to do a pretty thoroughjob of looking. It seems as though it runs againstyour own self-interest to do a good job," Nessonsaid, adding that he is currently litigating acase in which the opposing lawyer withhelddocuments until after the verdict was announced."You often can't tell if failures to produce aretrue oversights or some measure of studiedoversight.