“Secret Histories” in Litigation

A recent, special issue of The Public Historian, published by the University of California Press on behalf of the National Council on Public History, focuses on the role and nature of historian expert witnesses in judicial proceedings[1]. The collection raises interesting methodological questions about the historian’s craft and the interrelation between historical research and the law. The various contributions, listed at the end of this post, cover some of the diverse activities and subject-matter expertise that historians bring to the litigation process, in the United States, in Canada, and elsewhere.

My interest was drawn, not to the articles on native peoples or land rights, but to the one article on health-effect claims. See Keith A. Zahniser, “Why Litigation-Driven History Matters: Lessons Learned from the Secret History of TCE,” 37 The Public Historian 46 (2015). The author, Keith Zahniser, is a member of Historical Research Associates, Inc., which provides litigation support services, ranging from research to expert witness testimony. In his contribution to this collection of articles, Zahniser argues that litigation-driven historical research can live up to the professional standards of historians. Using an example of the history of trichloroethylene (TCE) use and its health hazards, he laments that relevant historical scholarship often remains secret and inaccessible, unpublished, and unimproved by peer review. Id. at 47-48.

Zahniser attributes the secretive nature of litigation-driven history to:

(1) confidentiality agreements;

(2) assertion of “work product” protections for documents uncovered by historical research; and

(3) assertion of “attorney-client privilege” for consulting expert historians’ opinions and identification of documents.

Id. at 49-50. Confidentiality agreements certainly could silence an expert witness during the course of the litigation, and forever after, perhaps. The assertion of work product or attorney-client privilege to avoid production of historical documents found by consulting or testifying historians is, however, more questionable. Unless the documents involved client communications made for the purpose of obtaining legal counsel, the attorney-client privilege would not apply. Opinions developed by a consulting expert witness might well be off limits to discovery in most common law jurisdictions, but historical documents, even if obtained with a consultant’s expertise and knowledge of archival sources, would not fall under the protection of the so-called work-product doctrine.

But what of Zahniser’s claim that the history of TCE has remained a “secret”? A briefest of internet searches suggests otherwise. Another consulting historian, Steve Swisdak of History Associates, presented on the history of TCE at an American Bar Association conference in 2013[2]. A scientist at GeoInsight, Inc., has published on the history of TCE, both in a journal and in a toxicology text[3]. The medicinal use of TCE is readily ascertained through publications listed in PubMed and other publication databases[4]. And a publisher of scientific bibliographies has published a timeline of TCE history[5].

Notwithstanding the complaint about “secret history,” Zahniser has not published on TCE; nor has he, or the company with which he is affiliated, made key historical documents available on their website, or any of the myriad websites that host documents for wider viewing. Finally, many historians’ reports or declarations are available through legal archives of case materials, such as WestlawNext or Lexis Advance. Zahniser’s reports on TCE do not appear to be available.

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Randolph Bergstrom, “Expert History and the Tribulations of Trials,” 37 The Public Historian 8 (2015)

Michael M. Brescia, “Bridging Troubled Waters: Historians, Natural Resource Litigation, and the Expert Witness Phenomenon,” 37 The Public Historian 11 (2015)

Jay C. Martin, “The Advocate’s Devil: The Maritime Public Historian as Expert,” 37 The Public Historian 25 (2015)

Emily Greenwald and Ian Smith, “Bury My Documents in Lenexa, Kansas: Expert Witness Work and the American Indian Records Repository,” 37 The Public Historian 39 (2015)

Keith A. Zahniser, “Why Litigation-Driven History Matters: Lessons Learned from the Secret History of TCE,” 37 The Public Historian 46 (2015)

Susan E. Gray, “Indigenous Space and the Landscape of Settlement: A Historian as Expert Witness,” 37 The Public Historian 54 (2015)

Jennifer A. Stevens, “From Archive to Evidence: Historians and Natural Resource Litigation,” 37 The Public Historian 68 (2015)

Gwynneth C. D. Jones, “Documentary Evidence and the Construction of Narratives in Legal and Historical,” 37 The Public Historian 88 (2015)

Bidtah N. Becker, “The Lawyer’s Guidebook for the Expert Witness in Natural Resources Litigation,” 37 The Public Historian 95 (2015)


[1] Thanks to Ramses Delafontaine for calling my attention to this issue of the Public Historian. Ramses’ new book provides an in-depth analysis of the role of historians as expert witnesses, in the context of tobacco litigation, as well as others. See Ramses Delafontaine, Historians as Expert Judicial Witnesses in Tobacco Litigation: A Controversial Legal Practice (2015).

[2] Steve Swisdak, “A Historical Survey of the Use and Regulation of TCE” (Oct. 11, 2013).

[3] Richard E. Doherty, “History of TCE,” in Kathleen M. Gilbert & Sarah J. Blossom, Trichloroethylene: Toxicity and Health Risks Molecular and Integrative Toxicology, at 1-14 ( 2014); Richard E. Doherty, “A History of the Production and Use of Carbon Tetrachloride, Tetrachloroethylene, Trichloroethylene and 1,1,1-Trichloroethane in the United States: Part 1 — Historical Background; Carbon Tetrachloride and Tetrachloroethylene,” 1 Envt’l Forensics 69 (2000); Richard E. Doherty, “A History of the Production and Use of Carbon Tetrachloride, Tetrachloroethylene, Trichloroethylene and 1,1,1-Trichloroethane in the United States: Part 2–Trichloroethylene and 1,1,1-Trichloroethane,”1 Envt’l Forensics 83 (2000).

[4] See, e.g., Gordon Ostlere, “The History of Trichloroethylene,” 8 Anaesthesia 21 (1953); Cecil Striker, “Clinical experiences with the use of trichlorethylene in the production of over 300 analgesias and anesthesias,” 14 Curr. Res. Anesth. 68 (1935).

[5] Icon Group Internat’l, Trichloroethylene: Webster’s Timeline History, 1949 – 2007 (2010).

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