Susan K. Avery, PhD

Potential legislative responses to subpoena of non-party deliberative documents and communications

Change is needed to protect and encourage scientific research in the United States.  So what can be done?

Amend the Free Flow of Information Act 2011 to afford the same level of protection for academics and scientists as is what is being sought for journalists.

The Free Flow of Information Act 2011 (“FFIA”) (H.R. 2932) was introduced by Congressman Mike Pence from Indiana, and aims to protect journalists from the compelled disclosure “any document related to information obtained or created . . . as part of engaging in journalism.”  The bill provides for certain exceptions—particularly where a court finds that the information sought is “critical to the successful completion of the [litigation]” and that the “public interest in compelling disclosure . . . outweighs the public interest in gathering or disseminating news or information”—but largely shields most documents related to journalistic endeavors from production.  The FFIA could be amended to extend this protection not just to journalists, but to scientists and academics alike.

Introduce a new bill that would provide protection solely for the pre-publication deliberative documents of scientists and academics.

Although some might take issue with the idea of protecting a journalist’s workpapers, there is a strong argument to be made that protecting the pre-publication deliberative documents of scientists and academics is integral to protecting our scientific edge in the world.  Therefore, those individuals who might not support the FFIA may still be inclined to shield the pre-publication deliberative documents of scientists from disclosure, so long as that protection was codified elsewhere.  Recognizing this, it may be more prudent to introduce an entirely new bill—separate and apart from the FFIA—that would protect these documents.  The bill could use the FFIA as a model, and, like the FFIA, it protect the deliberative documents of scientists from disclosure except in a few limited instances that warrant disclosure (i.e., the science itself is the subject of the lawsuit, the litigation is contingent on these documents, etc.).  But by separating it from the FFIA, it would distance this bill from the debate as to the protections that should be afforded journalists, while also allowing for the authors to craft a bill that is more narrowly suited to protect the particular needs of our nation’s scientists and academics.

Amend 28 U.S.C. § 1407—the multidistrict litigation (MDL) statute—to create a presumption that the MDL court will not exercise jurisdiction over the discovery disputes involving non-party academics who are seeking to protect their pre-publication deliberative documents.

As currently written, 28 U.S.C. § 1407(b) grants the MDL court jurisdiction over parties from any jurisdiction “for purposes of conducting pretrial depositions” related to the consolidated proceedings.  Courts have interpreted this statute as also granting those courts jurisdiction to resolve disputes related to the production of documents.  This results in academics and scientists being forced to dispute discovery requests in front of judges from foreign districts.  Both the proximity of the MDL court to the litigation, as well as their pre-established relationship with the repeat players involved in that litigation, may make it more difficult for those judges to assess the relative importance of the documents being sought, not to mention whether the parties’ need for the evidence outweighs the chilling effects disclosure would have on scientific research at large.  By codifying a presumption that document production disputes involving academics’ pre-publication documents should be resolved by the non-party’s home jurisdiction, it would create an important—if not necessary—buffer that would provide the non-party academics with a greater level of protection.  Alternatively, the statute could be clarified to explain that the jurisdiction extends only to disputes involving depositions, as currently written.  This, too, would provide useful protection for academics and scientists by, again, having the home jurisdiction of the non-party resolve discovery disputes involving document production.

Last updated: June 28, 2012