[i] Order Regarding BP’s Subpoena for Woods Hole’s Analysis Documents, Case 2:10-md-02179-CJB-SS (E.D. La. 2012).
[ii] See, e.g., Anker v. G.D. Searle & Co., 126 F.R.D 515, 519 (M.D. NC 1989). Courts have consistently held that the researcher cannot be excused from disclosure solely on the basis of being a non-party and a non-witness.
[iii] See, e.g., Cusumano v. Microsoft, 162 F.3d 708, 717 (1st Cir. 1998); United States v. Allen, 494 F. Supp. 107, 113 (W.D. Wis. 1980). aff’d, Dow Chemical Co. v. Allen, 672 F.2d 1262 (7th Cir. 1982). [iv] See, e,g., Wright v. Jeep Corp., 547 F. Supp. 871, 874 (E.D. Mich. 1982).
[v] Id. at 873.
[vi] See, e.g., Allen, 494 F. Supp at 113; In re Bextra and Celebrex Mktng. Sales Practices and Prod. Liab. Litig., 249 F.R.D. 8, 12 (D. Mass. 2008).
[vii] See, e.g., In re American Tobacco Co., 880 F.2d 1520, 1529 (2d Cir. 1989); Wright, 547 F. Supp at 874.
[viii] Allen, 494 F. Supp at 113. But see Deichtman v. E.R. Squibb & Sons, Inc., 740 F.2d 556, 565 (7th Cir. 1984) (holding that the researcher’s unique preeminence in the field and the expert witness’s expected heavy reliance on his studies justified requiring disclosure of preliminary data). This case suggests that preliminary data may be less protected than materials reflecting ongoing development of ideas or conclusions. [ix] Scott S. Reuben: Debarment Order, 76 Fed. Reg. 71,042 (Food & Drug Admin. Nov. 16, 2011).
[x] Rector and Visitors of University of Virginia v. Cuccinelli, 80 Va. Cir. 657, 658 (2010) (holding that the Attorney General of Virginia failed to allege any conduct that violated a statute in its Civil Investigative Demands, which were aimed at forcing the University of Virginia to disclose data and other materials related to a climate researcher’s grant applications when employed at the university), aff’d on other grounds.
[xi] One major category of data, confidential information obtained from human research subjects, is not addressed here. Courts have generally found that there is high presumption against discovery of private information given in confidence to researchers, similar to the deference given to journalists’ confidential sources. See, e.g., Cusumano, 162 F.3d at 714.
[xii] Order Regarding BP’s Subpoena for Woods Hole’s Analysis Documents, Case 2:10-md-02179-CJB-SS at 10 (E.D. La. 2012).