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Confidentiality in Legal Petitions and Claims for Privileged Information

Chapter:
Ethical and Legal Considerations
Author(s):

Annette Flanagin

Confidentiality in Legal Petitions and Claims for Privileged Information

A number of cases in US law have served as the foundation for or have directly supported the confidential nature of the editorial and peer review process.

In 1972, the US Supreme Court ruled in Branzburg v Hayes that a reporter could be forced to testify if, during the course of news gathering, the reporter became a witness to a crime.12 However, the court also noted that individual states could create their own standards with regard to a journalistic privilege (ie, a right) to keep sources of information confidential, allowing lower courts in subsequent rulings to support such privilege. With this understanding, many states have enacted legislation that protects the press from mandatory disclosure of sources, work product, and information.13,14 These state “shield laws” vary in scope but may offer qualified privilege to reporters to protect confidential information in legal settings unless it can be established that (1) the information sought is relevant and/or material, (2) it is unavailable by other means or through other sources, and (3) a compelling need exists for the information.13 However, recent challenges to journalists' privilege to keep sources of information confidential are of concern.

After the 1993 US Supreme Court ruling in Daubert v Merrell Dow Pharmaceuticals, Inc,15 concerns arose that attempts to breach the confidential nature of the editorial process would increase through subpoenas for journal records.16 In this case, the court identified standards required for admissibility of scientific expert testimony. These standards include, among others, whether the evidence on which the expert opinion is based has been peer reviewed and published, and they have been applied to limit admissibility of unreliable junk science as evidence in specific cases.

In 1994, a legal precedent was set regarding confidentiality and protection from attempts to invade the confidential and privileged nature of the editorial process.17 In Cukier v American Medical Association, an author whose manuscript had been rejected by JAMA sued to compel the journal to disclose the identity of those persons responsible for allegedly defamatory statements made to the editors concerning the author’s financial interest.17 Citing the confidential nature of the peer review process, the editors refused to disclose the source of this information. The Circuit Court of Cook County, Illinois, ruled that the editors were not required to disclose this information on the basis of the Illinois Reporter’s Privilege Act,18 which provides that members of the news media (in this case, journal editors) cannot be compelled to disclose sources unless the information cannot be obtained elsewhere and such disclosure is essential to the protection of the public interest. This decision was affirmed by the Illinois Appellate Court, and the Illinois Supreme Court declined to hear the case.

Other cases that have supported the confidential nature of the peer review process include Henke v US Department of Commerce and the National Science Foundation19 and Cistrom Biotechnology Inc v Immunex Corp.20

With the case law supporting journals in resisting attempts to obtain confidential information via litigation and quashing subpoenas, journals, editors, and publishers can rely on legal precedents and principles to help them maintain confidentiality of the peer review and editorial process. Parrish and Bruns21 have summarized the reasons journals should resist complying with subpoenas that intrude on such confidentiality as follows:

  • Violation of confidentiality obligations for one case may make it more difficult to defend future intrusions, may result in perceived breach of trust that could damage a journal’s reputation among authors and peer reviewers involved in a specific case as well as other current and prospective authors and reviewers, and may result in an author or reviewer suing the journal for breach of confidentiality.

  • Compliance with a subpoena disrupts the journal’s activities and processes and consumes the journal’s time and resources.

  • Substantial costs can be incurred in responding to a subpoena, collecting documents, and providing depositions.

  • A subpoena may be used as a means of harassment to prevent an author or a journal from publishing.

If a journal receives a subpoena or request from an attorney for confidential information, the editor should consult the publisher, the journal’s attorney, or both. The disclosure of confidential information to an attorney in this context would be protected under attorney-client privilege.22 However, it is important to limit disclosure of such information to the publisher (eg, protecting the names of authors or reviewers). According to Parrish and Bruns,21 in general, subpoenas are broad; therefore, editors may object to the scope and burden of having to respond to such a request. If negotiation with a party who served the subpoena must occur, editors and their legal representatives should request a narrowing of scope of the subpoena, a redaction of all irrelevant confidential information, the destruction or return of all surrendered documents containing any confidential information, and a limit on who can view any confidential information. In addition, the journal may seek indemnification from the authors or reviewers if they sue the journal for violation of confidentiality. Parrish and Bruns recommend that if such negotiations fail or do not protect the journal properly, the journal can file a legal motion to quash the subpoena.21

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