Andy King writes:
𝗪𝗵𝘆 𝗛𝗮𝗿𝘃𝗮𝗿𝗱’𝘀 𝗹𝗮𝘄𝘆𝗲𝗿𝘀 𝘀𝘂𝗯𝗽𝗼𝗲𝗻𝗮𝗲𝗱 𝗺𝗲 𝗶𝗻 𝘁𝗵𝗲 𝗙𝗿𝗮𝗻𝗰𝗲𝘀𝗰𝗮 𝗚𝗶𝗻𝗼 𝗰𝗮𝘀𝗲
My wife called to me. A constable was at the door.
He handed me a subpoena to appear for a deposition in the case of Francesca Gino v. President and Fellows of Harvard College and Srikant Datar.
The subpoena puzzled us. I don’t believe I’ve ever met Francesca Gino, and I am certainly not an expert on her case. Why not call me or email me with any questions?
As directed, I arrived at the offices of Ropes & Gray, Harvard’s white-shoe law firm. I was seated in a conference room with a commanding view of Boston. Thick binders sat on the table. Video cameras were pointed at me, and a microphone clipped to my collar.
One of Harvard’s lawyers opened a binder and began the deposition. She asked about my career, publications, emails, opinions, and LinkedIn posts. Each item was examined, reviewed, noted, and filed away. Page by page. Hour by hour.
The reason for the subpoena became clear.
Harvard’s lawyers asked pointed questions about my allegations of research misconduct against HBS professor 𝗚𝗲𝗼𝗿𝗴𝗲 𝗦𝗲𝗿𝗮𝗳𝗲𝗶𝗺—and they seemed interested in how those allegations compared with the ones against Francesca Gino.
A lawyer later explained the logic. In a case like this, one side may try to show that similar situations have been treated differently.
Here, both Harvard Business School professors have been accused of research misconduct. Yet only Gino lost her tenure and her position at Harvard.
Why?
At the time of my deposition, I had not given that question much thought. But nothing focuses the mind like a deposition.
So, over the next few posts I will consider:
• Do the complaints satisfy Harvard’s standards for research misconduct?
• Is there evidence of a pattern?
• Are the allegations similarly serious?
• And any other questions that emerge.
We discussed King’s encounter with the work of George Serafeim in these two posts:
I have no reason to think that Harvard is worse than other institutions. They just get all the publicity. When bad things happen at the University of Nevada or the University of California, you only hear about it on this blog. When it happens at Harvard or Stanford, the news goes around the world.
I also want to know: How does this subpoena thing work? Can the lawyers hold you against your will? Do they pay you for your time? The only time I’ve ever been deposed, it was for a consulting project and I was being paid. The questions were really stupid and they went on for hours, but it didn’t bother me because I could just keep my mind focused on the check.
P.S. See here for some background on the Gino case.
P.P.S. Commenter K points to further information here.
Andrew, many of your questions about subpoena for a non-party are answered here (not the same court, but Massachusetts, where the Gino case is taking place):
https://www.masslegalhelp.org/children-families-divorce/probate-and-family-court/understanding-non-party-subpoenas-massachusetts-probate-and-family-court
The relevant phrase to search is “non-party subpoena”.
Disclaimer: I’m not a lawyer. But I’ve been an expert witness, and discussed with lawyers subpoena’ing people in a few cases.
Seth:
So, if I’ve read this correctly, the subpoena can only be for one day. This is potentially annoying but at least it’s time-limited.
Andrew: I’m way outside my expertise here (again, I-am-not-a-lawyer), but my understanding is not that it “can only be for one day”, but rather the time period must be specified as part of the subpoena. That is, someone can be subpoenaed for a day, or a week, or whatever, but you have to say how long, and usually one day is enough for whatever the lawyers want. That is, the rule is “x day(s), and you get whatever you can get in that time”, rather than “however long it takes to go through all the questions the lawyers want to ask”. Of course, the more time asked, the higher the chance the person is going to fight it as “unreasonable or oppressive.”. The “A $6.00 witness fee (for 1 day).” is per day – so e.g two days would be a $12 fee.
I’d really like a practicing lawyer to give a read on the situation, but my cynical speculation is that here Harvard is trying to get basically expert-witness testimony which would typically run them a four-figure or even five-figure sum, for the cost of a $6 fee. The right move would then have been for the guy to ell Harvard privately that he’d fight the subpoena, but propose Harvard hire him on the case as expert-witness for expert-witness type money. I disclaim once more, this is random conjecture and for entertainment purposes only.
Under the federal rules, depositions are one day of seven hours of questioning unless otherwise agreed or ordered.
I do not know if the cited quotation by Andy King is original, but it is a clever variant and deserves recognition in this litigious world:
“At the time of my deposition, I had not given that question much thought. But nothing focuses the mind like a deposition.”
Yes, I was riffing off Samuel Johnson.
As someone mentions in the comment section on the linkedin post, it seems to me that these are very different kinds of cases. If I am not mistaken, “research misconduct” often refers to falsification, fabrication, and plagiarism and if memory serves me correct that was the issue at stake with the Gino case and not with the Serafeim case.
If it’s that obviously totally different, I don’t understand why any lawyer would spend so much time and effort on this by interviewing people. It seems to me that these are totally different kinds of cases, where only the Gino case may involve what is often clearly described and defined as “research misconduct” (which may be a valid reason for severe consequences like termination of employement).
If there is a comparison that’s perhaps more useful, it’s Gino & Diederik Stapel I think. Both the Gino and Stapel cases were about accusations of fabrication or falsification of data if I remember correctly. I think Stapel confessed somewhere in the process early on, and it might be interesting to think what might have happened if he didn’t, and simply started to sue everyone involved, or do some other stuff like blaiming his co-authors or PhD students.
Two quotes concerning the term “research misconduct”, one from a paper by Kornfeld (2012) titled “Research Misconduct: The Search for a Remedy”, and one from the investigative report into the Stapel fraud case by Levelt et al. (2012):
“Research misconduct—fabrication, falsification, and plagiarism—is an insidious problem in the scientific community today with the capacity to harm science, scientists, and the public.” (Kornfeld, 2012, p. 877)
“The European Code refers to ‘minor misdemeanours’: some data massage, the omission of some unwelcome observations, ‘favourable’ rounding off or summarizing, etc. This kind of misconduct is not categorized under the ‘big three’ (fabrication, falsification, plagiarism) but it is, in principle, equally unacceptable and may, if not identified or corrected, easily lead to more serious breaches of standards of integrity. For example, the Committees encountered many aspects of research practice that reveals sloppy science and verification bias.” (Levelt et al., 2012, pp. 57-58)
Coincidentally, Data Colada has a new post about the case: https://datacolada.org/136
It’s becoming increasingly clear it’s not an issue of whether she commited fraud anymore (she did), but whether she was treated fairly by Harvard.
K:
I don’t buy the whole “treated fairly” line. The standard of behavior at an organization shouldn’t be set to the worst things the organization has ever allowed. Columbia had a known sexual abuser on its staff for a long time. That doesn’t mean that anything short of sexual abuse should be ok. Harvard has a notorious plagiarist on staff and still hasn’t fired him. That doesn’t mean that they shouldn’t be allowed to discipline plagiarists. Etc. To let someone off from a serious offense just because someone else was allowed to get away with it . . . that way lies madness.
@Andrew:
There is a case to be made for equality in how we punish research misconduct. It may serve as a means to force more investigations into, and punishment of, research misconduct.
On a practical level, however, I am with you. I doubt strictly forcing equal treatment would lead to an equilibrium with less cheaters – under the current, discriminatory regime any cheater out of office is one vacant chair that may be filled with a non-cheater. It is not justice, but a better outcome IMO.
Raphael:
I think we’re in agreement.
Fairness is a good goal, and at some point things can be so unfair that it should make a difference. For example, stealing pens from the office might be a violation of Gino’s employment contract, but it would seem a bit much to fire her because of that.
But Harvard has forced professors to leave because of research misconduct. For example, Marc Hauser. They didn’t kick out Laurence Tribe or Claudine Gay for plagiarism, and I find plagiarism really annoying, but I don’t think it’s as serious a violation as fraudulent research.
I think the right way forward is for them to get more serious about sanctioning faculty for research misconduct, to raise the bar higher.
I think the question her lawyer may be raising is that the difference was due to gender or discipline. That said they could also be considering whether he should be fired.
What they really worry about is havnig to pay damages.
K: There is something very strange in the background of this case. This is one of those situations where I think I understand the politics just barely enough to know that I don’t understand the politics. I cannot believe that Harvard would railroad a superstar photogenic *WOMAN* tenured professor, based on what might be written on the Data Colada blog, shaking in fear and terror of its influence. That doesn’t make sense. There’s some material in the case about going quietly. Maybe Harvard made Gino essentially a plea deal, she considered that deal too harsh, but rather than regard it as an opening offer and trying negotiate a better deal for herself (don’t business professors teach about this?), she decided she’d fight tooth and nail. And so Harvard nailed her to the wall. Just speculating.
Based on similar cases, professors caught in this situation are generally offered 1-2 years of pay to just resign and save the university the trouble (and embarassment) of revoking tenure and firing them. So, yes, I think this was a case of a rejected “plea deal” leading to a more punitive outcome.
Surprised a constable came to enforce the subpoena for a civil suit, given that the only time I’ve had to call the cops they said “it’s a civil matter” to avoid having to show up and do their job.
A few comments.
Apparently, in massachusetts, sending constable is the norm. Who knew?
I think the accusations in both cases qualify as misconduct. This lays out my comparison: https://www.linkedin.com/pulse/subpoena-taught-me-hbs-way-andrew-king-iodhf/
Andy (not Andrew) King
I may be missing some details that are crucial here, but I have read some things about both cases at different times when they were mentioned here on this blog for instance. In line with my earlier comment here, I am under the impression they are two very different cases, so I am a bit surprised to read this comment here.
Many things may have to do with 1 the definitions, and 2 the interpretations. These things are sometimes mixed up, or seen differently, which makes things hard sometimes. See my earlier comment for example where the term “research misconduct” is used more specifically to refer to fabrication, falsification, and plagiarism, and in the other quote “misconduct” is used to refer to other research misbehavior as well (although even then the “big three” of fabrication, falsification, and plagiarism are explictly mentioned as being something different).
Anyway, it seems HBS sees “misconduct” as the big three: fabrication, falsification, plagiarism. A dictionary I checked mentions the following definitions of “falsifiy” I think are relevant here:
1 to state untruthfully, misrepresent
2a to make false by altering or adding to
2b to counterfeit, forge
I think when it comes to “falsification”, the Gino case possibly involves actions beloning to definition 2a (and now perhaps 2b as well, see the datacolada post mentioned here). The Serafeim case however seems to me to largely only involve definition 1 of “falsify”:” to state untruthfully or misrepresent.
Now, if this is correct, it shows again why it might be important to keep things separate as much as possible. The “misrepresenting” and “state untruthfully” can be applied to many other research behaviors, like several of the so-called “Questionable research practices” in my view. For instance, HARK-ing (hypothesizing after the results are known) might be viewed as “misrepresenting”. If HARK-ing would be seen as an instance of “falsification” then I don’t think that would be very useful in judging research behavior or trying to solve problematic issues with sub-optimal or fraudulent research misbehavior.
A further check might be that in the Gino case, there might not be the option for a “correction” or altered re-submission to the journal to deal with the problems pointed out. If I am understanding correctly, the Serafeim case does involve this option or proposal, which may point to a crucial difference between the cases.
To keep things simple, at least at first, I would view fabrication as coming up with non-existent data like the data colada blog mentions with the data file that changed from N=98 to N=101. I would view falsification as changing data, for instance change a number from 3 to 5 in order to achieve more desirable results. If such things did not happen in the Serafeim case, I would view that as a possibly crucial difference between the cases.
I heard this argument on my LinkedIn page, and so I have given it some thought.
I think the cases are more comparable than people think. Some of the accusations are nearly identical, data and results misreporting are both research misconduct, and intent seems inferable.
1) One of the accusations against Gino is about PROCEDURE: specifically misrepresenting the method used on the analysis. From HBS’s final report:
“Dr. Gino falsified and or fabricated the results by removing or altering parts of the descriptions of study procedures from drafts of the manuscript submitted for publication, thus misrepresenting the study procedures in the final publication. The original procedure descriptions (subsequently removed or altered by Professor Gino) pointed to a significant flaw in the execution of the data collection for study one which called into question the validity of the study results.”
This is very similar to my accusation that Eccles, Ioannou, and Serafeim misrepresented their matching method to make their results seem more valid.
2) I see no difference in quality between changing the values of a variable to get a statistical estimate you want and simply misreporting the estimate.
The only reason we can discuss that in Gino’s case is because SHE POSTED HER DATA.
3) Intent: Changing data feels like it conveys intent, but Gino has argued that people change data all the time, so one must know the reason.
Eccles, Ioannou, and Serafeim did not correct their “misreport” in a timely manner, and in one case they still have not corrected it in the publishing journal. I believe that provides evidence of intent or recklessness.
Also, let’s not forget the “explanations” we are asked to believe to infer that EIS “misreported” their results and methods.
a) They meant to say that a finding was “not” significant and failed to type “not”.
b) The meant to remove part of the description of their method, but forgot (and edited in later drafts).
c) The conducted 200 interviews and evaluated ~5000 datapoints to backdate their data a decade – all without leaving any trace.
I know that Eccles, Ioannou, and Serafeim are influential, well-connected scholars. But they should not get special treatment.