McGovern, Francis E.

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Comment: Implementing a Taint Test to Address the Problems Raised by Compelled Disclosure

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MCGOVERN.FMT 08/13/97 2:49 PMCOMMENTIMPLEMENTING A TAINT TEST TOADDRESS THE PROBLEMS RAISED BYCOMPELLED DISCLOSUREFRANCIS E. MCGOVERN*Robert O’Neil on the one hand1 and Paul Carrington and Traci Jones on theother2 form the conceptual bookends to my thoughts upon reading the series ofarticles in this symposium.  Professor O’Neil suggests that there are a numberof significant drawbacks to allowing formal discovery of the research results ofthe scholarly community:(1) denying “control of the reporting and disclosure process”;(2) hampering “the research process”;(3) rushing partial or premature disclosure of research that is still in process; and(4) making disclosures of confidential information.3Others, such as Professors Wiggins and McKenna, add to the list of negativerepercussions of untrammeled adversarial discovery “the economic and tempo-ral demands of subpoenas,”4 the detrimental effect on future research, and“reputational harm .  .  .  and embarrassment.”5  As seen by Professor O’Neil,the underlying problem is the absence of a recognized legal privilege for re-search.6  Instead of the current ad hoc nature of legal tests that balance the re-search enterprise against the litigants’ need for data, there should be a brightline rule to protect researchers.Recognizing the absence of such a definitive test, Michael Traynor7 suggeststhe next best alternative—a series of perspicacious preventative measures that                                                          Copyright © 1996 by Law and Contemporary Problems*Professor of Law, Duke University.Many thanks to Leslie Bryan, David Bernick, and the Judges of the Mass Tort Litigation Commit-tee of the Conference of Chief Justices.  This paper could not have been completed without the assis-tance of my research assistant Jeff Beaverstock.1. Robert M. O’Neil, A Researcher’s Privilege: Does Any Hope Remain?, 59 LAW & CONTEMP.PROBS. 35 (Summer 1996).2. See Paul D. Carrington & Traci L. Jones, Reluctant Experts, 59 LAW & CONTEMP. PROBS. 51(Summer 1996).3. O’Neil, supra note 1, at 36.4. Elizabeth C. Wiggins & Judith A. McKenna, Researchers’ Reactions to Compelled Disclosureof Scientific Information, 59 LAW & CONTEMP. PROBS. 67, 67 (Summer 1996).5. Id.  at 75.6. See O’Neil supra note 1, at 37.7. See Michael Traynor, Countering the Excessive Subpoena for Scholarly Research, 59 LAW &CONTEMP. PROBS. 119 (Summer 1996).MCGOVERN.FMT 08/13/97  2:49 PM186 LAW AND CONTEMPORARY PROBLEMS [Vol. 59: No. 3would, if utilized in the superbly capable hands of a Michael Traynor, lead in-evitably to a de facto bright line rule protecting researchers.8  His article illus-trates adversarial lawyering at its finest and demonstrates that the quality of le-gal representation does affect outcomes.Professor Carrington and Ms. Jones, however, find that the existing inter-pretations of Rule 45 of the Federal Rules of Civil Procedure that permit dis-covery of nonparty, expert research are fully consistent with the fundamentalconception of our adversarial litigation system as a major force in reducing er-ror costs.9  In contrast to O’Neil, they postulate a world not of scholars engagedin scholarly enterprise, but one of partisan experts consumed in litigation sci-ence.10  The problem is not one of balancing unreasonable costs and unneces-sary disclosures against the rights of litigants; the problem is “the profligate useof opinion evidence at trial.”11  Their solution is to reduce the role of partisanexperts through the use of Rule 706 of the Federal Rules of Evidence orthrough the re-characterization of “some matters of scientific opinion as issuesof law, not issues of fact.”12  In effect, they raise the much larger issue of whatkind of science is litigable—an issue that may be worthy of an entire sympo-sium in  Law and Contemporary Problems.Professor Jasanoff also poses a variation of this broader question: What inthe end is the best way to integrate scientific knowledge into legal decision-making?13  She does so while considering the more narrow issue of how courtsshould manage the review of subpoenaed research materials so as to advancelegitimate skepticism but prevent mindless deconstruction.14  The mindless de-construction is “‘experimenter regress,’ a potentially endless series of questionsdesigned to probe every aspect of the ‘failed’ experiment, from the reliability ofthe instruments used to the honesty of the researchers.”15  In the hands of a re-tained expert, these questions may “highlight areas of ambiguity where multi-ple approaches and interpretations could peacefully coexist, and may even cre-ate a misleading impression of uncertainty where most scientists believe noneexists.”16  Professor Jasanoff’s argument is that stripping the sociological con-text of scientific research alters the research itself.  Focusing on this issue,which suggests problems similar to those discussed by Professor Carrington andMs.  Jones, and which is similar to the context posited by Professor O’Neil, shesuggests four possible solutions:                                                          8. His suggestions include obtaining court orders for protection and stays, and even pushing thecontempt envelope.  Id. at 146-48.9. Carrington & Jones, supra note 2, at 54-63.10. See id. at 55-56.11. Id. at 54.12. Id. at 64.13. See generally Sheila Jasanoff, Research Subpoenas and the Sociology of Knowledge, 59 LAW &CONTEMP. PROBS. 95 (Summer 1996).14. See id. at 100.15. Id. at 99 (quoting in part H.M. COLLINS, CHANGING ORDER:  REPLICATED INDUCTION INSCIENTIFIC PRACTICE 2 (1985)).16. Id. at  102.MCGOVERN.FMT 08/13/97  2:49 PMPage 185:  Summer 1996] A TAINT TEST 187(1) screen the party experts who would review the subpoenaed materials;(2) appoint an independent expert to assist the court in reviewing the testimony concerning the subpoenaed materials;(3) appoint a review panel to review the subpoenaed material; and(4) encourage the judge “to develop a keener sense of how science works.”17Having set forth these various positions, I would like to discuss the O’Neilissue in the context of the Carrington and Jones paradigm: whether or not abright line test can be devised to control discoverability of nonretained experts’research data when that data is embroiled in active litigation.  This discussionwill be approached from the perspectives of lawyers and judges embroiled inthe heat of the legal maelstrom as it exists in the “real world,” where expertsare drawn into the litigation precisely because their research has a partisan bite.This is a world occupied by Judge Crabb.  As she indicates, the legal worldis different in many respects from the scientific world and, when there is a con-flict, it is the law that dominates.18  “Given the divergent goals of trial lawyersand scientists, it is unlikely that most courts will abandon the usual tools ofcross-examination and instead adopt the methods scientists use to test the va-lidity of scientific studies.”19Judge Crabb agrees with Professor Carrington and Ms.  Jones:It is unlikely that the judge will grant any motion to quash in its entirety unless the re-searcher establishes the existence of realistic, alternative sources for the subpoenaedinformation, shows that the information subpoenaed does not have the probativevalue claimed by the  requester, or proffers some other persuasive reason for notcomplying with the subpoena in any form.20The requesting party, however, bears the burden of showing that the research isdiscoverable, and in considering the question the court will take into accountthe following:(1) the needs of the case;(2) the possibility that the witness is a unique expert or whether the discovery couldbe obtained from another source;(3) the degree to which the discovery sought is necessary to enable the parties to pre-pare an adequate case or defense;(4) the amount in controversy;(5) the limitations on the parties’ resources;(6) the importance of the issues in the litigation; and                                                          17. Id. at 115-17.18. See Barbara B. Crabb, Judicially Compelled Disclosure of Researchers’ Data: A Judge’s View,59 LAW & CONTEMP. PROBS. 9, 9-10 (Summer 1996).19. Id. at 13.20. Id. at 31.MCGOVERN.FMT 08/13/97  2:49 PM188 LAW AND CONTEMPORARY PROBLEMS [Vol. 59: No. 3(7) whether the discovery is cumulative or duplicative.21As parties requesting research data well know, however, it is easier to allegethat these standards have been met than to actually satisfy them.  In fact, evenjudges who lean toward discoverability as a matter of principle often find prac-tical reasons for denying access.22Perhaps the most interesting issue in this symposium, however, is notwhether discovery will be allowed; Judge Crabb and others have provided uswith ample guidance to deal with this issue.  The more perplexing question isonce allowed, when does the discovery stop?  Is there a natural dividing line, ordoes a slippery slope lead inevitably to uncontrollable discovery?  Indeed,many courts deny discovery due to their inability to answer the slippery slopequestion.  If granting discovery of non-retained experts’ research data leads tounsolvable future discovery problems, why allow the discovery at all?  Carring-ton, Jones, and Jasanoff suggest that the answer to this problem of destructivediscovery lies in increased judicial involvement, either with or without the assis-tance of a court-appointed expert.  I would like to suggest two alternative solu-tions, both of which are quite modest, but in appropriate cases may be of someassistance to courts.The first suggestion involves the use of a court-appointed expert with suffi-cient knowledge of the research area who would not engage the substance ofresearch, but rather provide a “sociological context” and assist the parties indelineating the scope of discovery.  The second suggestion entails the applica-tion of a surrogate test for the scientific value of the subpoenaed research, onethat is well within the competence of the courts and that focuses on the core is-sue: Is there a litigation taint?  But first, it is critical to understand the factualunderpinnings of these proposals, that is, how research and discovery are usedin the adversarial system, in large part because these factual assumptions maybe quite foreign to some researchers.The following fact patterns raise some of the types of issues concerning dis-covery of nonretained expert research data that have arisen in the litigationsurounding silicone gel breast implants.  The actual facts have been changedand dramatized somewhat—a privilege given to all torts professors—in order totease out the more thorny problems that are often embedded in complex situa-tions.Under the first scenario, a defendant manufacturer seeks the entire re-search—all medical records, notes, drafts, etc.—of a nonretained expert.  Thisexpert has written a paper that has not been subjected to peer review but isbeing used by a retained expert to support that expert’s opinion that there is acausal relationship between the product in question and certain specific harms.The defendant further asserts that in a prior case the nonretained expert wasprevented from testifying as an expert for the plaintiff when he refused to turnover the requested data to the defendant.  A permutation of this scenario                                                          21. Id. at 26-27.22. See United States v. Allen, 494 F. Supp. 107 (W.D. Wis. 1980).MCGOVERN.FMT 08/13/97  2:49 PMPage 185:  Summer 1996] A TAINT TEST 189would involve a peer-reviewed paper and an expert who had previously testi-fied.A second scenario involves a noted university based research team that isconducting a study on the relationship between a product and certain harms.The study has been funded by one of the product’s manufacturers that is cur-rently the defendant in ongoing litigation and which has secured the right to ob-tain copies of all of the team’s research protocols and data at various stagesprior to publication.  It is anticipated that the study and its results eventuallywill be published as a peer-reviewed paper, and there is no expectation that anymember of the research team will ever be retained as a party expert.  The plain-tiffs move the court to obtain access to all materials the defendant receivesfrom the research team at the same time as the defendant receives them.  Thisscenario can be altered with a defendant who has significantly more or less con-trol over the research process.23In a third scenario, various physicians who have treated many of the plain-tiffs’ injuries agree to testify on their patients’ behalves in connection with a se-ries of product liability cases involving the allegedly faulty product.  Thesetreating physicians turn over anecdotal evidence of their patients’ conditions toa nonretained expert who, in turn, completes a study finding a correlation be-tween the product and certain harms.  The defendant manufacturer moves thecourt to obtain all of the medical records and to allow its own physicians toconduct medical examinations of the injured patients.  The nonretained ex-pert’s study could be peer-reviewed or not according to the desired hypotheti-cal.  You might also hypothesize that the underlying lawsuit and subsequentdiscovery request are filed in a given state court and that the non-retained ex-pert in continuing possession of the medical records resides in another stateand the clinicians are scattered all over the country—a hypothetical worthy of alaw school examination question even though it is very close to being realistic.In the final scenario, a defendant manufacturer finances a scholarly studyand retains the right to review the data prior to publication.  The researchermakes it publicly known that while an abstract has been prepared and pub-lished, there will be no peer-reviewed publication of the entire project becauseof resistance from the manufacturer.  The plaintiff requests that the court grantit access to the researcher’s data.  The possible permutations of this fact situa-tion are exquisite.These scenarios arise out of quite a different environment than that ofscholars engaged in scholarly enterprise as contemplated by Professor O’Neil.Here the lawyers for each side are overtly vying for an adversarial edge as fre-quently are the researchers themselves.  The attorneys are searching for datacollection errors, data errors, data corrections, data collected but not used, datasusceptible to alternative interpretations—in short, the parade of factors envi-                                                          23. See Orders 36 and 36A, In re Silicone Gel Breast Implant Products Liability Litigation (MDL926), CV 92-P-10000-S (1997) (where Judge Sam C. Pointer, Jr., after the initial draft of this article,ordered reciprocity in production and exchange of information regarding ongoing studies funded by aparty to the litigation).MCGOVERN.FMT 08/13/97  2:49 PM190 LAW AND CONTEMPORARY PROBLEMS [Vol. 59: No. 3sioned by Carrington, Jones, and Jasanoff.  The trial judges, who must ulti-mately decide whether to grant or deny motions to discover research results,are typically overburdened and understaffed, unlike some of the appellatejudges who write the elegant opinions discussed in the other papers in this sym-posium.  More often than not, these trial judges are primarily interested in re-solving discovery disputes in the least amount of time possible without havingto write an opinion.  Indeed, there is little wonder that in virtually all of the ac-tual situations that form the basis for the four hypothetical scenarios, partiesreach agreements regarding discovery with some “leverage” applied by thejudge.The first suggested solution to the “when does discovery end?” dilemma in-volves the use of a court-appointed neutral, either a Rule 706 expert or a Rule53 special master.  As has been discussed elsewhere, the mere presence of acourt-appointed expert who is respected by the parties’ experts can provide thesociological context discussed by Professor Jasanoff.24  Once the party expertsknow that their litigation positions are being scrutinized by a knowledgeableneutral, it is not uncommon for their disputes to evaporate.  Recognizing thattheir outlier positions simply will not sustain knowledgeable scrutiny, andseeking to avoid the risk of a court’s adverse reaction, they may retreat to amore sustainable position.  Mediated discussions may then lead to amiable andacceptable discovery that does not lead to “mindless deconstructionism.”  Forexample, in a given case, all computerized data might be turned over to the par-ties, paid for by the requesting party, but unentered data would remain pro-tected.  The parties are induced to draw the line themselves with the aid of thecourt’s expert, as opposed to having it drawn unilaterally by the court or thecourt’s expert.  Discovery progresses in a manner that balances the interests ofthe parties, retains the essence of the adversarial process, and leaves the scien-tific method unbowed.The second suggested solution is the use of an initial period of limited dis-covery to determine whether the adversarial interests of the parties have in anyway adversely affected the normal research process.  Unless this first stage ofdiscovery reveals that the parties’ litigation has had an impact on the research,all further discovery would cease.  If, however, this preliminary discovery re-veals that a party either supported or influenced the research it seeks to intro-duce at trial, then mindful deconstruction would be allowed.The type of preliminary discovery envisioned would include interrogatoriesto determine, for example, whether there was partisan involvement in thedrafting, approving, or altering of the research protocol.  Other topics suitableto inquiry during this initial stage of discovery would include the use of data ob-tained from a partisan source or participation in a partisan activity that wouldsuggest a litigation bias on the part of the researcher.  In general, this discoverywould seek to either eliminate or substantiate the suspicion that the normally                                                          24. See Francis E. McGovern, Toward a Functional Approach for Managing Complex Litigation,53 U. CHI. L. REV. 440, 475-78 (1996).MCGOVERN.FMT 08/13/97  2:49 PMPage 185:  Summer 1996] A TAINT TEST 191accepted research process was tainted by litigation interests.  If a court foundthat litigation interests invaded the research, then the door would be opened toextensive discovery consistent with the adversarial process.If courts were to adopt such a two-stage discovery process, it would have aprophylactic effect on future litigation science.  Such a bright line rule wouldprovide sufficient predictability that litigants would avoid tainting research sothat it would remain legitimate and could be used in court, precisely the goalsought by O’Neil, Carrington, and Jones.  At the same time, judges wouldprobably feel comfortable determining whether there had been a litigation mo-tivation inserted into the research, even if they might feel quite uncomfortablein second guessing the quality of the science itself.Neither of these suggested approaches is a panacea, but each suggests a so-lution well within the normal competence of courts.  Notwithstanding the criti-cism of courts in coping with scientific evidence in general, most commentatorswould agree that fostering consensus and judging credibility are generally han-dled quite well under our existing judicial procedures.

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Comment: Implementing a Taint Test to Address the Problems Raised by Compelled Disclosure

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