“Any update on the lawsuit?”
That is the most common question any of us is asked. It is usually preceded by an apologetic preamble, like, “sorry if this is a sensitive question,” or “I don’t know if you’re tired of talking about this, but…” The reality is that, for the most part, our actual sensitivity comes from feeling bad about how brief our answer inevitably is. Nothing much has happened.
But the sum of nine months of “nothing much” is now somewhat more than nothing.
First, a quick rehash. We identified evidence of fabricated data in four studies co-authored by Francesca Gino. We asked her employer, Harvard University, to look into it. They spent a year and a half doing that, and determined that we were right. So they contacted the relevant journals with requests for retractions and put Gino on unpaid administrative leave. Then we wrote some blog posts about it. Then Francesca Gino filed a $25M defamation lawsuit against us and Harvard. Legal wackiness ensued.
It is clearly not our particular bailiwick, but this post is about that wackiness.
Wackiness Part One: The Procedure
After getting served with the papers [1], we were given a few months to file a motion to dismiss the case. To try to get a case dismissed, you’re not allowed to say, “hey, wait, the evidence against us is preposterous,” because there’s no evidence yet, only allegations. Instead you have to say, “hey, wait, they didn’t even articulate a legal claim.” Dismissing a case is kind of like desk-rejecting a paper before looking at the evidence because its arguments don’t make sufficient sense.
We (obviously) think that the lawsuit should (obviously) be dismissed. So our (amazing) attorney Jeffrey Pyle wrote a memo requesting dismissal and submitted it to Massachusetts Federal Court (.pdf). Unsurprisingly, Professor Gino’s attorneys said that we are wrong, and filed a counterargument. The documents were read and considered by the judge, and a hearing was scheduled for the attorneys to argue their positions on the motion to dismiss the case. That happened 12 days ago (April 26th). All three of us travelled to Boston to be there.
Wackiness Part Two: The Arguments
Both intuitively, and apparently, legally, you can’t have defamed someone if what you said was true [2]. Crucially, that was largely irrelevant for this motion. Of course, we believe that what we said was true, and we have the evidence to back it up, but this motion was about the subtleties of defamation law. The judge wasn’t being asked to decide whether fraud had or had not occurred.
Defamation requires a few things. First, it can’t be an opinion; it has to be a (false) fact. “Joe has terrible musical taste” = opinion; “Joe owns every Billy Joel album” = (highly defamatory) fact. As in the behavioral sciences, the legal system often hijacks ordinary English-language words and repurposes them to have a highly specific meaning within that system. And so it goes with “opinion.” If one were to present evidence for an inference, the evidence is the facts and the inference is the opinion. As our attorney points out, our allegation to Harvard, and the four blog posts it spawned two years later, are nearly the definition of “opinion”: we presented publicly available facts (i.e., data and analysis), and drew opinions based on them (i.e., someone altered the data). If that seems straightforward to you, it does to us also. If our opinions are deemed opinions, the case is dismissed.
If our opinions are not deemed opinions, then the next thing to consider is a weird one: is Francesca Gino a public figure? This matters because whereas non-public figures need to prove that you negligently made a false, factual, and damaging statement, a public figure needs to prove that you knew the statement was false (or that you were reckless). So what is a public figure? Not surprisingly, that can be argued at length (in hundreds of pages of legal documents and in a two-hour hearing, for example). But a good and straightforward example of a public figure might be someone who is “an internationally renowned behavioral scientist” as well as “a highly sought-after author, consultant, and researcher”. That was how the Gino attorneys characterized their client in the very first court filing. If you’re confused as to how they could subsequently claim that their client was not a public figure, you are not alone. It continues to be a bit of a mystery.
So then Gino’s lawyers have to prove that we knew we were lying or that we were reckless. That poses something of a challenge because, amongst other things, we believe every single thing we wrote on the topic. Furthermore, the hundreds of hours of painstaking analysis that went into those blog posts doesn’t scream out “reckless”. So at this point, you’re probably wondering what the Gino attorneys are arguing. We’ll be honest here and say that, although we were at the hearing and listened to every word, we are not really sure. There was a moment when Gino’s lawyer tried to make a point by taking one of our statements out of context and simply misquoting another. But our lawyer took care of that. They make no legitimate claim that we knew that we were lying. And that makes sense. Because we weren’t.
We mentioned that we all flew to Boston to attend the oral arguments about the motion to dismiss. If you’ve ever seen a courtroom drama, this would be the portion that was edited out. Sure, it was highly dramatic for us, but in practice it was largely staid and dispassionate. The Harvard attorneys (Harvard is getting sued also) presented their case for half an hour, then our attorney did, and then Gino’s attorney presented a rebuttal. The judge listened patiently and occasionally interrupted to ask clarifying questions. After two hours, court adjourned and we went to lunch. Now we will wait an unspecified amount of time for the judge to decide whether or not to dismiss the case.
Wackiness Part Three: What Happens Next
So where do things stand?
If the case gets dismissed (that is, a Data Colada victory), then Gino has the opportunity to appeal the case to a higher court. And that will take a while. Good times.
If the case is not dismissed, then we go to discovery. At discovery facts start mattering, so we get into the business of getting more facts about Gino’s data. In that phase, we would presumably have access to all the data on Gino’s hard drives, and all of her old Qualtrics data, and all of the research-relevant emails she sent or received since she joined Harvard. Discovery would last for months.
We certainly want the case to be dismissed, but were it to go to discovery, it is possible we would discover things that merit an additional blog post.
To our readers, our friends, our families, and our employers, thanks for supporting us.
Footnotes.
- Aside: In the first few days we frequently took out our phones to try to photograph the person who would inevitably surprise us with a sheaf of papers and shout out “You’ve been served!” That didn’t happen. Instead a bunch of attorneys exchanged emails, and eventually a large packet of papers wound up in our mailboxes. Less dramatic than anticipated. It will be a recurring theme. [↩]
- Oddly, we learned on that Friday that there actually is an exception to this rule in Massachusetts, but it does not apply to our case. [↩]