At the heart of Harvard's argument is the fact that Berkowitz amended his complaint this fall, and included information about the list of scholars that he was compared to by his ad hoc tenure committee.

Berkowitz says the scholars were all farther along in their careers than he was, and thus should not have been on the list.

Harvard says that, because this matter was never pursued through its internal grievance system, the court should not rule on the matter--even though Berkowitz just learned of the names recently, well after the internal grievance review was completed.

"We believe that the court's decision is wrong in a fundamental way," said University spokesman Joe Wrinn. "And we think that the issues are so important in this case that it warrants the review we are seeking in an appellate court."

Legal experts familiar with the Massachusetts court system say Harvard's appeal--called an interlocutory appeal--is highly unlikely to be approved, especially by a judge who has ruled for Berkowitz twice before.

"Interlocutory appellate review is an extraordinary remedy. It's an extraordinary recourse to be used if the mere carrying forward of the lawsuit is going to inflict irreparable damage," said Harvey A. Silverglate, co-founder of the Foundation for Individual Rights in Education (FIRE).

"They're in desperation mode now. If they don't do something to stop discovery all their secrets will be out," he added.