The Union of Concerned Scientists (UCS) has produced a glossy pamphlet with a checklist of how scientists may respond to criticism and personal attacks. See UCS – Science in an Age of Scrutiny: How Scientists Can Respond to Criticism and Personal Attacks (2012).
The rationale for this publication is described at the UCS website. The UCS notes that scientists are under a great deal of scrutiny, and “attack,” especially when their research is at the center of contentious debate over public policy. According to the UCS, scientists are “sometimes attacked by individuals who do not like the research results. These attacks can take multiple forms—emails, newspaper op-eds, blogs, open-records requests, even subpoenas—but the goals are the same: to discredit the research by discrediting the researcher.
I am all for protecting scientists and researchers from personal attacks. The UCS account, however, seems a bit narcissistic. The UCS is making an ad hominem attack on the putative attackers for what they claim is an ad hominem attack on the researchers. What if the so-called attackers don’t care a bit about discrediting the researchers, but only the research?
The “even subpoenas” got my attention. Subpoenas have been propounded for good reason, and with good effect, on litigation-related research. See, e.g., In re Welding Fume Prods. Liab. Litig., MDL 1535, 2005 WL 5417815 (N.D. Ohio Aug. 8, 2005) (upholding defendants’ subpoena for documents and things from Dr. Racette author of study on welding and parkinsonism). The UCS has thus attacked motives of lawyers charged with protecting their clients from dubious scientific research; I suppose we could return the epithet and declare that the UCS goal is to discredit the process of compelling data sharing by discrediting the motives of the persons seeking data sharing.
Subpoenas served upon independent researchers, whose work bears on the issues in litigation, are a valid part of the litigation discovery process. Litigants, especially defendants who are involuntarily before a tribunal by compulsory process, are entitled to “every man’s evidence.”
The Union of Concerned Scientists seem either unduly sensitive or cavalier and careless in their generalization about the goals of lawyers who propound subpoenas. The goal is typically not to discredit the researcher. The personality, reputation, and position of the researcher are irrelevant; it’s about the data.
The Federal Judicial Center’s Manual for Complex Litigation describes subpoenas for researchers’ underlying data and materials at some length. See Fed. Jud. Center, Manual for Complex Litigation § 22.87 (4th ed. 2004). The Manual acknowledges that the federal courts have protected unpublished research from discovery, but that courts permit discovery of underlying data and materials from studies that have been published. Federal Rule of Civil Procedure 45(c)(3)(B)(ii) allows courts to enforce subpoenas against non-parties, on a showing of “substantial need for the testimony that cannot be otherwise met without undue hardship,” and on assurance that the subpoenaed third parties “will be reasonably compensated.” Manual at 444-45. The federal courts have recognized that litigants’ need to obtain, examine, and re-analyze data underlying research studies used to by their adversaries against them. Although the researchers have interests that should be protected in the discovery process, such as their claims “for protection of confidentiality, intellectual property rights, research privilege, and the integrity of the research,” these claims must be balanced against the necessity of the evidence in the litigation process. Id.
Of course, when the research is sponsored by litigants, whether by financial assistance or by assisting in recruiting study participants, and is completed, “courts generally require production of all data; for pending studies, courts often require disclosure of the written protocol, the statistical plan, sample data entry forms, and a specific description of the progress of the study until it is completed. Id.
Some have argued that the scientific enterprise should be immune from the rough and tumble of legal discovery because its essential collaborative nature is threatened by the adversarial interests at play in litigation. Professor George Olah, in accepting his Nobel Prize in Chemistry, rebutted this sentiment:
“Intensive, critical studies of a controversial topic always help to eliminate the possibility of any errors. One of my favorite quotation is that by George von Bekessy (Nobel Prize in Medicine, 1961).
‘[One] way of dealing with errors is to have friends who are willing to spend the time necessary to carry out a critical examination of the experimental design beforehand and the results after the experiments have been completed. An even better way is to have an enemy. An enemy is willing to devote a vast amount of time and brain power to ferreting out errors both large and small, and this without any compensation. The trouble is that really capable enemies are scarce; most of them are only ordinary. Another trouble with enemies is that they sometimes develop into friends and lose a good deal of their zeal. It was in this way the writer lost his three best enemies. Everyone, not just scientists, need a few good enemies!’”
George A. Olah, “My Search for Carbocations and Their Role in Chemistry,” Nobel Lecture (Dec. 8, 1994), quoting George von Békésy, Experiments in Hearing 8 (N.Y. 1960). The UCS should rejoice for its intellectual enemies. “Out of life’s school of war: What does not destroy me, makes me stronger.” Friedrich Nietzsche, The Twilight of the Idols Maxim 8 (1899).
