Tobacco Documents Online

1 2 3 4 5 6 7 8 9 10 1! ~2 13 14 15 16 17 18 19 20 21 22 23 24 25 26 UNTTED STATES COU~T OF APPEALS FOR TEE SECOND CIRCUIT No. 1317 AugUst Term, IS88 (Argued: June 6, 1989 Decided: ~ ~ 1%9~ ) 89-7317 Docket No. In the Matter of the Application of THE AMERICAN TOBACCO COMPANY, R.J. REYNOLDS TOBACCO COMPANY, and PHILIP MORRIS, INC., MOUNT SINAI SCHOOL OF MEDICINE and THE AMERICAN CANCER SOCIETY, THE AMERICAN TOBACCO COMPANY, R.J. REYNOLDS TOBACCO COMPANY, and PHILIP MOP~RIS, INC., Before: LUMBARD, FEINBERG, and KEARSE, circui~ J~dqes. Appeal from an order of the United states District Court for the Southern District of New York, Kevin Thomas Duffy~ ~, I holding appellants in civil contempt for refusing to comply with subpoenas. Affiz~med. MICHAEL A. CARDOZO, New York, New York (Charles S. Sims, Proskauer Rose Goetz & Mendelsohn, New York, New York, ~Om the brief),

9 1(] 11 12 13 ,4 15 16 18 19 2O 21 22 23 24 25 " I DONALD I. STRAUBER, New York, New York 2 (Thomas E. Riley, Garyowen p, Morrisroe, Chadbourne & Parke, 3 Howard G. Kristol, Bru/ce H. Lederma~, Rebo~l, MacMurray, 4 Hewitt, Maynard & Kristol, David R. Davies, Hunton & Williams, New York, New York, on the brief), for 6 KEARSE, Circuit Judae: Mount sinai School of Medicine ("Mount Sinai") and The 8 American Cancer Society ("ACS") appeal from a final order of the United States District Court for the Southern District of New York, Kevin Thomas Duffy, Ju~d e, holding them in civil contempt for failing to comply with orders of the court requiring them to respond to subpoenas served by appellees The American Tobacco Company ("American"), R.J. Reynolds Tobacco Company ("Reynolds"),-- and Philip Morris, Inc. ("Philip MOrris") (collectively the "tobacco companies"), requesting research data for use in lawsuits to which Mount Sinai nnd ACS are not parties. On appeal, Mount Sinai and ACS challenge interlocutory orders that (i) denied their.- motion to qu~sh th~ subpoenas on grounds of res judic~ta, collateral estoppel, and privilege, and (2) denied in part their motion for a protective order permitting redaction of the ..... subpoenaed materials to prevent identification of person~ who were subjects of the research. For the reasons helow~ we uphold the orders of the district court.

! 2 3 4 5 6 7 8 g 10 11 T2 13 14 ;5 ~6 1;' 18 lg 20 21 22 23 24 25 26 I. BACKGROUND Each o£ the tobacco Companies is a defendant in one or more ,roduct liability suits pending in state or federal courts around i the cotuntry (the "underlying suits"), in which the plalntiffs allege that their decedents died of lung cancer caused by a ~combination of cigarette smoking and exposure to asbestos. Mount Sinai and ACS are not parties to those suits, and neither they nor i members of their medical staffs are expected to be called as witnesses. The tobacco companies expect, howevere that the i plaintiffs will rely on expert testimony that in turn will rely on seminal studies made by certain members of the medical staffs of Mount Sinai and ACS. The tobacco companies seek to subpoena the data underlying these studies. A. The Selikoff Studies a~d Past Subpoenas Dr. Irving J. Selikoff, a professor of medicine at MounC sinai, is the principal author of, ~, two articles whose medical conclusions support ~he plaintiffs' claims in the underlying suits. .See Mam/~ond, Selikoff & Seidman~ be~ ExPosure. Ciuarette Smoking and Death Rates. 330 Annals N.~. Acad. Sci. 473 (1979); Sellkoff, Seidman & Hammond," Mo al't E cts of Ciuarette Smokin~ Among Amoslt~ Asbestos Factory WorKers, 65 J. " Nat'l Cancer Inst. 507 (1980). Earlier studies had shown that cigarette smoking Bay cause cancer and that exposure to asbestos ~L~ may also cause cancer. The Selikoff articles suggested that when i - 3 -

3 4 6i 6 7; 8 9 I0 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 26 ~igarette smoking wam Combined with occupational exposure to asbestos, the risks of developing cancer increased geometrically rather t~an arithmetically. The au~ors concluded that these data suggested a synergistic relationship between the hazards of smokin¢ and of exposure to asbestos. FOE the 1979 artiGle, the period of study ran from 1967 through 1976; for the 1980 article, the period of study ran from 1961 through 1977. Some ll,OOO asbestos workers were s~bjects of the research reported in these two articles. Using a wide range of sources, Dr. Seliko£f accumulatea a variety of personal data on his subjects. Some informatio, was received through the personal examination of approximately 500 subjects who were treated by Dr." Selikoff in connection ~ith research for the two azticles. Along with basic identifying details such as names, places of residence, and union affiliations, the assembled information included such items as dates of birth, dates add causes of death, periods of exposure to asbestos, smoking habits, evidence of cancer, and other relevant medical history. Dr. Selikoff assured his research subjects that the inforl%ation they provided would remain confidential~-- ........................ Muoh of the raw data was eventually recorded on ~omputem tapes to facilitate statistical analysis and convenient storage. The selikoff research continued after the publicatlon of the 1979 and 1980 articles, and the computer tapes were updated frequently with new information. - 4 -

~/t ] 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 / In 1986, Reynolds served Mount Sinai and ACS wig subpoenas issued by a state court in New York in connectiom with an action pending i~ state cour~ in california, see Pace v. Lincoln Electric ~, No. 257048 (Cal. Super. Ct.] (the -page subpoenas"}. The Page s~bpoenas sought all the data underlying the 1979 and 1980 Selikoff articles, as well as data underlying a 1968 article. Each subpoena provided, in pertinent part, as follows: • Documents To Be Produced 1. This subpoena covers documentation, data collections, or data bases (the !'raw data"] that formed the basis for the [1968, 1979, and 1980 articles]; 2. Documents which describe, constitute, comment upon, criticize, review or concern th~ research design, methodology, sampling protocol, and/or conduct of any of the studies; 3. Copies of the ~aestionnaires, answers to questionnaires, interview forms, responses to imterviews, death certificates, autopsy reports, and other cause of death data .... ; 4. Data sheets~ computer tapes and/or copies of computer d!sc~containi~g~ll=~_coded data .. ; • • o . 6. This reauest is intended to cov@r all availabie data u~ed, in as "raw" a form as Dossibl~ .... (E~phasis added~) ............................. Mount Sinai and ACS moved to quash the Page subpoe~nas in New York state court. That Court, after discussing both the interests of scholars with respect to their research and the burdens of producing the data Galled for by %he Page subpoenas, granted the motions to quash. In re R.J. Reynolds Tobacco Co., 136 = . -- 9 --

2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 /- 17 19 2~ 21 22 23 24 26 Misc. 2d 282, 518 N.Y.S.2d 729 (Sup. Ct. 1987) (~"). The court stated, in pertinent part, as follows: Reynolds' subpoenae o . . are not selective. Rather, they are sweeping and indiscriminate.• A subpoena may be challenged on the grounds that; it is ov@rbroad, burdensome or oppressive .... A subpeena may be vacated ~or reasons of privilege, whether statutory or constitutional, or having its genesis under common law. . . . CPLR 3101 provides that "[t]here shall be a full disclosure of all evidence . . .", which means all relevant inf~r~ation calculated to lead to relevant evidence .... The data requested must he material and necessary although it need not be indispensable .... The rules of evidence may be considered when determining necessity of the requested ~terial. But inadmissibility by itself may not be a reason for denying access to the information, since such information may lead to evidence. In addition, its use in cross-examination can be a Gonsideration° . ?-; [T]he fact that the information is available .... from other sources or even that Reynolds has or could have obtained the material needed at trial is not reason alone for denying the production of the data. Material subpoenaed may be used for corroborative purposes. However, when compliance with subpoenae would be so oppresslve as to h~inderthe~ormif'func£1oning of a Department of the medical school and/or of the American Cancer Society for a prolonged period of time, the CoUrt on motion or on its own initiative may provide appropriate relief• This is especially so because Mt. Sinai and the American Cancer Society ~re complete strangers to the .... underlying litigation. Neither Dr. Selikcff nor his co- authors will be witnesses at the Page trial. The9 are not consultants in that matter, nor was decedent Page a subject of their medical investigation. Policy in New York, unlike most• other jurisdictions has accorded privilege to experts. . .. The united states Supreme Court held in the notable case of Bran bur v. a~[ay_~, 408 U.S. 665, 688 [(IS72),] "that 'the pt~blic . . . has a right to every man's evidence,' except foe those - 6 -

2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 • 21 22 23 24 25 26 persons protected by • constitutional, ¢O~L~ON law or statutory privilege.- . . . If the productid~ of the material would become oppressive and unreasonably burdensome, the court, in balancing the hardships, should con~ider whether there are other sources for obtaining the material needed to disprove t2~e conclusions reached by the three studies. In addition, the probative value of the material, if produced, should-be considered. Dr. Selikoff determined by a sample test that it would take thousands of hours to redact all the material which is of a confidential nature. The time required would he the same whether the information is in raw data form or on computer tape. Reynolds has offered to reimburse Mt~ Sinai and the A~erican Cancer Society for the reasonable expenses incurred in their complying with the subpoenae. However, it appears that Dr. Selikoff and his colleagues would still have to spend over a thousand hours of time removing the data ~dentifying the individuals who participated in the --- study. The loss of the scientists' time in complying with the subpoen~e ~ouid be a~ unreasonable burden and would unduly interl~/pt their ongoing medical investigations. It is also clear that the medical material requested is not of an archival nature but rather is in constant use _as~paEt_Qf~ongoing~medical-research. Mount Sinai and the American Cancer Society protest, on behalf of their medical scientists, the interference with their ongoing scientific research in this area. While these medical investigations are still in progress, they -- should not be subjected to examination and criticism by people whose interests are arguably antithetical tm the medical scientists. It would have the effect of denying to these doctors the opportunity of first publication of their st~Idies. It could also have a Chilling effect and ~= discourage future scientific endeavors. Mount Sinai, the American Cancer Society, the Dean a~ the Yale University School of Medicine, and ot~er eminent medical scholars claim that forced compliance with the ......... suhpoanae would result in an interferenc~ with their academic freedom• It was stated in ow Chemical CO. v. A~/~t 7th Cir., 672 F.2d 1262e 1275 [1982] that ,'whatever

S 2 3 4 5 6 / 7 8 9 10 11 12 131 I¢i 15! constitutional protection is afforded by the First Amendment extends as ~eadily to the scholar i~ the laboratory as to the teacher in the classroom." Of course, like all other constitutional rights, academic Ereedom is not absolute and must be balanced against competing interests .... For present purposes, xespondentlm interest in academic freedom may properly flg~re into the legal calculation of whether forced disclomure would be reasonable. For the reasons stated above, the court finds that compliance with the subpoenae would place an unreasonable burden upon the medical and scientific institutions involved and would unduly disrupt the ongoing research at both Mount Sinai and the A~nerican cancer Society. Accordingly, the motion to quash the subpoenae is granted. ~. at 284-88, 518 N.Y.S.Zd at 731-34. not appeal. The tobacc~ companies did B. The Present Subpoenas and the Decision ~elow Shortly after the decision in ~, the tobacco companies served on Mount Sinai and ACS the subpoenas at issue 16 ........ here~in connection with actions pending in federal court in 17 Louisiana and Pennsylvania. ~ LeJeune v. Ar~stronu World Indus.~ 18 NO. 86--0421 (W.D. La.); Shires v. The Celotex Corp., No. 85-7141 19 ":C (E.D. Pa.). In these new subpoenasF the tobacco companies seek 20 fewer items than were sought in the Page subpoenas, concentrating 27 primarily on the computer tapes storing the rsle~ant =a*~ data. To" 22 the extent relevant here, these suhpoenas pravlde as follows: 23 Docu~eDts TO Be Pr0duged 24 i. The computer tape(s) for the 1979 study ...... 25 ....... containing all information gathered, or that relates to matterm occurring, prior to January I, 1977. 28 = -- 8 --

I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 ]7 18 19 20 21 22 23 24 • 25 26 f 2. The computer tape(s) for the 1980 study containing all information gathered, or that relates to matters occurrings prior to January i, 1978. 3. The supporting dac~mentation for the 1979 and 1980 studies. The subpoenas define "supporting documentation" as comprising computer code hooks for the 1979 and 1980 studies; related documentation that would assist in identifying what information is on the computer tapes for the 1979 and 1980 studies and where it is located on the tapes; a blank copy of the coding forms used in transferring information onto the computer tapes for the 1979 and 1980 studies; a blank copy of each type of questionnaire used to gather information for the 1979 and 1980 studies; a copy of the protocol documents for the 1979 and 1980 studies and any addenda thereto; and documents showing the calculations and the analytical methods and assumptions used in developing the information with respect to the 1979 and 1980 studies The subpoenas also make the following provision for confidentiality: Where necessary to protect the anonymity of the study participants, identifying information (such as names and street addresses) may be redacted .... Mount~S~l~ahdACS M0v6d--En--£he~dZstrfCt~urt--toquash-- the subpoenas on the grounds that (i) in light of ~, the subpoenas were barred by res. judicata and collateral estoppel; (2) under New York law, the data sought by the tobacco companies was subject to the absolute privilege afforded experts; and (3) even if they had no absolute privilege, the researchers enjoyed a qualified privilege and the tobacco companies had not'shown that their interests outweighed the interests of researchers. In the alternative, Mount Sinai and ACS moved for a protective order allowing (a) redaction of all identifying fnformation-o~ the computer tapes, (b) a summary by decade of all specific dates, .... J .....

I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 ~8 19 2Q 21 22 23 24 25 / ~, dates of birth, death, and employment, and (c) restrictions on access by third parties to the subpoenaed materials. They argued that such a protective order was necessary to protect the participants' anonymity and physician-patien~ privilege. The district court denied the motion to quash but fashioned a protective order designed to preserve confidentiality. The 'court' rejected the res judicata and collateral estoppel arguments on ~he ground that "New York State discovery ~ules and z-~les [in federal court] are different." It rejected the privilege argument on the ground that no state court precedent definitively established such" a privilege; the district court viewed the ~court's decision as q~ashing the Page subpoenas on the ground of burdensomeness and viewed the state court's discussion of privilege as dictum. Finally, though Mount Sinai and ACS argued that even the process of redacting the materials would be burdensome, the court stated that it would not be ngcessary for Dr. Selikoff himself to perform all the redaction and that a scholar such as he should anticipate that others would wish to scrutinize the bases for his published work. It concluded that "the burdensomeness is ; =__ not something which is unduly burdensom~ ; . . ." ........................ Persuaded nonetheless that the study participants were entitled to some degree of privacy protection, the COUrt entered a " I protective order granting the Mount sinai-ACS motion in part. Xn ~-i relevant part, the protective order provides as follows: i. The motion of Mount sinai and the ACS for a .......... protective order ? 7-.-fs hereby GRANTED tw the extent that" 28 Mount Sinai and the ACS may redact the names of the subjects of the two studies . . . , and their street - io - . . i~ ................................ --7

! 2 3 4 5 6 7 8 9 12 13 14 15 16 17 18 19 20 21 22 23 24 26 addresses, town or village of residence~ hazes of employers, social security numbers and union registration numberse provided, however, that Mount Sinai and the Ace shall provide the county of residence of the subjects. The motion is DENIED in all other respects. 3. All persons, parties or other entities who are permitted access to the subpoenaed docitments . . . shall be • . . prohibited from using any of the information contained therein to identify or attempt to identify the names Of any of the subjects of the two studies, and each such person, party oE other entity shall execute an Acknowledq~e~t~ in the form annexed hereto .... 4. In the event that American, Reynolds or Philip Morris, or any other party, is served with a subpoena • . . or other discovery request ° . . seeking production of the subpoenaed documents, such party shall request the person seeking the documents to execute an Acknowledgment as described in paragraph 3. If the person . . . refuses to execute an Acknowledgment and moves or applies to compel production, the pa~y fro~ whom such discovery is sought shall notify counsel for Mount sinai and the ACe of such motion or application .... The Acknowledgment would require any person seeking access to the data to "agree to be bound by the terms and conditions contained { [~n the protective order], and . . . consent to the jurisdiction of rr the Court for the enforcement thereof." The court rejected the i Mount Sinai-ACe contention that considerations of physician-patient privilege required further redaction ........ .......... Eventually, following an aborted appeal to this Court, see In re American ~ob~cc~ Co., 866 F.2d 552, 556 (2d Cir. 1989) ("orders requiring production and denying a further protective order are not final in the absence of a contempt adjudication"), the district court held Mount Sinai and ACe in contempt when they refused to comply with the orders requiring them to respond to the i subpoenas. The court imposed on them a sanction of $500 for each - ll - . . ~[ ............. --[ !

1 2 3 4 S 6 7 8 S 10 11 '12 13 14 15 16 17 18 19 20 21 22 23 24 26 day that they remained in contempt, order pending appeal. This appeal followed. but stayed enforcement of that If. DISCUSSION On appeal, Mount Sinai and ACS contend principally that the district court erred in failing to give ~ the proper preclusive effect and in failing to recognize the state-law privileges afforded to experts and research scholars. In the alternative, they contend that the district court's protective order fails to protect adequately.agalnst disclosure of confidential information. We have considered all of their contentions and find no basis for reversal. A~. The Cla~me~'Preclus[~e-Effect of Rey~'ds Mount Sinai and ACS contend that the present subpoenas arise out of the same operative facts and give rise to the same issues that were before the state court in Reynolds and that therefore principles of res judicata or collateral estoppel bar their enforcement. We disagree. In order to determine the preclusive effect of the decision in Reynolds, we look to the law of New York. ~See Marrese v. American Academy of Orthomaedic Suraeon~ 970 U.S. 373, 380 (1985) (federal court is to "refer to-the preclusion law-of the ...... state in which Judgment was rendered"); Ruiz v. Commissioner of the - 12 -

20 i 21 22 23 24 .... 25 26 1 Dem't of Transportation of the City o~ New York~ 858 F.2d 898, 902 2 (2d Cir. 1988); 28 U.S.C. § 1738 (1982). Under the transactional 3 approach to res Judicata adopted by New York, "once a claim is 4 brought to a final conclusioD, all other Claims arising Out of the 5 same transaction . . • are barred, even if based Upon dlfferent 6 theories or if seeming a different remedy .... " Q'Brlen v. City 7 of Syracuse 54 N.Y.2d 353, 357, 445 N.Y.S.2d 687, 688 (1981). 8 Principles of collateral estoppel will bar relltigation of an issue 9 that is identical to an issue which has necessarily been decided in 10 the prior action. Rvan v. New York TelePhone Co., 62 N.Y.2d 494, " |1 500, 478 N.Y.S.3d 823, 826 (1984). Issues are considered Identic~l 12 if a different decision in the second suit would necessarily 13 "'destroy or impair rights or interests established by the first.'" 14 Id. at 501, 478 N.Y.S.2d at 826 (q~oting Schuylkill Fue~ cor~. v. B 15 & c Niebe~q ~ealty Co~., 250 N.Y. 304, 307 (1929) (Cardozo, J.)). Thes~principles have--beenappl~ed~-f-ed~l~ur~ to ba~ an attack on a subpoena, where a New York state cour~ had previously denied a motion to quash an identical subpoena, se_r~ v.~, 419 F- Supp= 546, 548 (E.D.N.Y. 1976) (Pratt, J.}: se_ee al~_~_ Westwood Chemical Co. v. Kullck, 6~6 F.2d 1224, IZ27 ~6th Cir. 1981) (res judicata barred par~y from deposing corporate officers where prior decision quashed s~bpoenas fez depositions of other officers DZ the same morporation). Where, howeveT, the first subpoena has been quashed as overly broad and a second subpoena is served which is~clearly marrower or more specific, New-York law does not give preclusive effect to the decision q~lashing the - 13 ...... ..... iL .........

2 "3 4 5 6 7 8 9 10 11 12 13 14 15 16 1-7- 18 19 20 21 22 23 24 25 26 'earlier subpoena. ~, ~, Cum~in~ham and ~amln~. P.O. v. N~, 53 A.D.~d 520, 384 M~.S.2d 3S3 (Ist Dep'~ 1976) (~e~,). Rather, "any possible future subpoena[] . o . is to be examined on its own merits." /~. at 522, 384 N.Y.So2d at 384. As discussed in Part X above, the subpoenas at issue in the present case are plainly narrower than the subpoenas quashed in ~. For example, Whereas the Page subpoenas requested the raw data in its original form (e.~., interview notes, completed questionnaires, x-rays}, the present subpoenam seek only the computer tapes plus such information as is necessary to interpret those tapes. Further, the present subpoenas, unlike the Page subpoenas, do not seek information that pertains to events occurring subsequent to the periods covered by the published ....... articles. Since the two sets of subpoenas are significantly different, the district court properly rejected the contention that -enforcement-of-the present subpoehas was precluded by the decision in ~ quashing the broader subpoenas. B. The Claim of Privileue Mount Sinai and ACS also contend that they should got have been ordered to produce the subpoenaed materials in light of the state-law privileges accorded to experts and-research scholars. Though in a diversity case the existence of a privilege "is to be deter~ine~ by reference to state la~, D'xon v. 80 "~e S feet 501, O~9_~_=-, 518 F~2d'1278, 1280 (2d Cir.-1975); see Fed. R. Evid. - 14 -

2 3 4 5 6 7 8 9 10 11 12 13 14 IS 16 17 18 19 2O 21 22 23 24 25 26 f an existing privilege should be interpreted no more broadly than necessary. Since privileges shielding info~ation from the reach of the court "contravene the fundamental principle that 'the public • . . has a right to every man's evidence,'" such privileges "must be strictly construed." re,me v. United States, 445 U.S. 40~ 50 (1980) (quoting n'ted States v. a , 939 U.So 323, 331 (1950}) ; see Gray v. Board of Hiqher Educatio,, 692 F.2d $01, 904 (2d Cir. 1982). In light of these principles, we are unpersuaded that the orders of the district court should be overturned. i. The E ert,s P " ile e The claim to protection under the state-law privilege accorded to experts need not detain us long. In New York, experts who have no personal connection to a case enjoy an absolute privilege not to he compelled to give their opinions. Gillvv. City of Mew York, 69 M.Y.2d 509, 511, 516 N.Y.S.2d 166, 167 (1987) (per curials). This privilege has been extended to cover requests, • pursuant to a subpoena, for preparation by an expert of a written medical report. See Plummet v. R.H. Macy & Co., 69 A.D.2d 765, 414 N.Y.S.2d 921 (Ist Dep't IS79) (mem.) .......... In the present case, no expert is being asked to testify or to prepare a report. Mount Sinai and ACS have referred us to no New York decision extending the privilege to all existing documentary evidence in the possession of an expert, and our own reselrch has revealed none. Accordingly, .we conclude that this priviiegeis not applicable here• - IS -

-r 2 3 4 5¸ 6 7 B 9 10 11 12 13 14 15 16 18 19 2O 21 22 23 24 25 26 ~he Research schoIBr's PrivileGe • In suppor~ of their claim to protection by a privilege accorded to research scholars, MoUnt Sinai a~d ACS are forced to rely on ~, for no other New York case can be said to have recognized a scholar's privilege impeding production of research data. The Seventh circuit has recognized such a q~alified privilege, principally to protect scholars from the premature disclosure of their research, see, ~, Deitchman v. E.~ Squibb & Sons Inc., 740 F.2d 556, 560-61 (7th Cir. 1984); ~ 0ow Chemical Co. v. Allen. 672 F.2d 1262, 1274-76 (7th Cir. 1982), and the ~ court, citing Dow Chemical, explored the possibility that there might be such a privilege. The Reynolds court discussed the interests of scholars in their research data, as it did -- concepts of academic freedom, and it concluded that such concepts were permissible considerations in determining whether to quash the broad subpoenas before it. The court focused primarily on the need -to-protect-the-scho~ar~a~ai~t~h--re~t~f--~n~erf~ce with his ongoing research and against ~he release of his research findings prior to having had his own opportunity to publish them. 136 Misc. 2d at 287-88, 518 N.Y.S.2d at 734. It is not clear to ust however, that the decision in establishes the existence of a scholar's privilege as a matter of New York law. The court's discussion was discursive, and its conclusion that the subpoenas should be quashed did not state that the r~ling was based on the existence of a privilege. Its concern for burden was plain, as i£ noted thit theP&ge subpoenas - 16 -

j-- • I 2 3 4 5 6 7 8 17 18 19 20 21 22 23 24 25 Were Nnot selective"but rnther were "sweeping and indiscriminate," ~nd it repeatedly referred to the principles that control where subpoenas are noverbroad, burdensome or oppressive," or "so oppressive as to hinder then~rmal functioning" Of the recipient, or where "the production of the material would become oppressive and unreasonably burdensome," or the burdens would he "unreasonable." ~ at 284-86, 518 N.Y.S.2d at 731-33. The court concluded its discussion by stating that a schQlar's "interest in academic freedom may properly figure into the legal calculation of whether forced disclosure would be reasonable," and that for all the reasons discussed, compliance with the Page subpoenas would "place an unreasonable burden upon the medical and scientific institutions involved and would unduly disrupt the ongoing research at both Mount Sinai and the American Cancer Society." ~d. at 287- 8S, 518 N.Y.S.2d at 734. In the absence of a more explicit ruling, it is possible that the court regarded the scholar's interest in his!esearch_dat~as~merely a~factor to-b~take~intc~account~ weighing the burdens of production, and that it did not intend to rule that the scholar has a privilege protecting him from having to disclose that data. -- Further, if the ReYnolds court ~id mean to rule that there is such a privilege, it plainly did not mean to suggest that such a privilege was absolute, for the discussion reveals at least'two limiting concerns. First, as discussed above, the court considered at some length whether production would be'burdensome, a con~ern~that woul~ have no relevance ~n-the-context of an absolute .. - 17 - i

/ i 2 3 4 5 6 7 8 9 10 11 ~2 13 14 15 16 ;7 18 19 2O 21 22 23 24 25 26 privilege. Second, the court indicated that its concern for research scientists focused in part on their interest in being the first to publish the results of their studies. Thus, the court stated that "[w]hile these medical investiuations are ~t±ll in r~/~g_r_~, they should not he subjected to examination and criticism by people whose interests are arguably antithetical to the medical scientists," for a premature disclosure "would have the effect of denying to these doctors the opportunity of first publication of their studies." ~d. at 287, 518 N.Y.S.2d at 733-34 (emphasis added). In the present case, the district court viewed the courtts discussion o~ privilege as dictum and z~led that Mo~u%t Sinai and ACS had failed tQ establish that New York .... recognized a scholar's privilege. Even were we to disagree with this ruling an~ conclude that a qualified privilege does exist here, we cannot conclude that reversal is required. Where a qualified privilege is found to exist, a "court 'must apply a balancing test to determine whether the need of the party seeking disclosurG outweighs the adverse effect such disclosure would have : on the policies underlying the [claimed] privilege.'" Deitchman v. E.R. S~uibb & Son~, Inc., 740 F.2d at 559 (quoting Unlversitv of NotTe Dame du Lac, 715 ~.2d 331, 338 [7th Cir. 1983)) {brackets in D~); see also United States v. Burke. 700 F.2d 70, 77 (2d Cir.} {discussing balancing test to be applied where discovery requests implicate the reporters' qualified privilege), cert. den~ed, 464 U.S. 816 (1983). On appeal, we will not disturb - 18 -

ZI ! 2 3 4 5 6 7 8 9 10 11 12 13 14 15 18 I-T 19 20 21 22 23 24 25 28 the district cour~l's application of such a balancing test absent an abuse of discretion. S~ Bake~ v. ~ & F Investment. 470 F.2d 778, 783, 785 (2d cir. 1972), cert. denied. 411 U.S. 966 (1973}. Here, notwithstanding its view that New York law did not establish a scholar's privilege, the district court asked the tobacco companies to "[a]ssume that there is a qualified privilege," and in that context discussed the burdens of compliance. The c~ultimately concluded that the burdens on the scholars did not out~eigh the tobacco companies' interests in obtaining the research data. Mount Sinai and 'ACS challenge this conclusien, emphasizing principally that scientific research efforts will be chilled by the notion that data underlying reported findings may be discoverable in actions to which the Scientists are not parties, that the tobacco companies could conduct their own studies, and that compliance with the subpoenas will require Dr. Selikoff to spend a substantial amount of time in redacting the data 0n"th~t~esT~im~-th~111 be taken away from his ongoing research. It was within the discretion of the distract Cour~ to "- reject these arguments. -~i The principal legitimate chilling effect on scientific research, adverted to by the ~ court, is the possibility that r~search results discovered prior to their publication would be vulnerable to preemptive or predatory publication by others. But this possibility does nut appear to be a factor here since the _ tobacco companies have narrowed their subpoenas to request only - 19 -

/ I 2 3 4 5 6 7 ,8 9 10 11 12 13 --"14 15 16 17 ~8 ]9 20 27 22 23 24 25 Z6 data that' was r~lied upon ~y Dr. Selikoff in preparing a1-~iules that were published some years ago. Further, if the mere fact that production will require tim and effort w~re dispo~itive, only rarely would any discovery attempt be successful since most gainfully employed dlscovery targets ~ould contend that ~ompliance would ~aka time away ~rom their regular worM. And though it 6eems clear that Mount Sinai, ACS, an~ Dr. Selikoff will he burdene~ s~ewhat in co~lying with the subpoenas, much of the detailed redaction work required in the interests of confidentiality may undauhtedly he perfar~ed, given proper instructions, by someone other than Dr. Selikoff or his fellow researchers. The tQb~ccc ca~panies have offere~ to reimburse Mount Sinai and ACS fur the reasonable expenses of c~mpl£~nce~ ~ .... the mgst.direct method of attack on the Selikoff flndings.- - 20 -

I 2 3 4 5 6 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 24 25 26 We are unpersuaded that a contrary result is required by the fact that the medical researchers have no direct interest in the underlying lawsuits. The publication of their findings and conclusions invites use by persons whom the findings favor and invites reliance by the finders of fact. The public has an interest in resolving disputes on the basis of accurate information. Though under New York law this interest does not warrant requiring scientists to testify or prepare reports in actions with which they have no personal connection, we doubt that New York law would recognize a privilege to withhold the data on ~ which already published findings are based and thereby preclude direct scrutiny of the findings' validity. Thus, even assuming that there is a qualified privilege forresearch scientists tinder New York law, we conclude that the scientists may be required to produce data underlying their published findings. This obligation should not, of course, be without reasonable limitations. We are concerned by the information, given us by counsel for Mount sinai and ACS at oral argument of this appeal, that there are some40 extant subpoenas in various lawsuits seeking the data underlying the Seliko~f findingsJ Though we -- uphold the decision of the district court in the present~ase requiring compliance with the present subpoenas u~der the protective order fashioned by the court, we do not foreclose the possibility that repeated requests for production of such data could be=ome unduly burdensome. Itmaybet~atanz.excesgiv9 .... burden could be averted by the creation of a central repository of - 21 -

/ I 2 3 5 6 7 8 9 10 12 13 14 15 16 18 ! C. 2O 21 22 24 25 -- " 26' such data to which current and future suitors could have access, with the proper provisions for canfidentiality, or by resort tm some other mechanism such as centralized discovery through multidistrict litigation, ~_~ 28 U.S.C. § 1407 (1282); "..~e~,,~ In ~e Asbestos and Asbestos Insulation Materla~ ProduCts Liability Litigation, 431 P. Supp. 906, 910 (J.P.M.Lo 1277) (per curiam) (declining to transfer to one district 103 pending actions involving asbestos exposure ,,~nder the[]'circumstances,,, where all parties opposed transfer and some actions were far more advanced than others). We are persuaded, however, that the proper b~lancing of interests does not warrant a bar against disclosure but only protection against needlessly repetitive disclosures. Hence, in - the present case, we conclude that even if Hew York law recognizes a qualified privilege for research scholars, the decisions of the district Court did not abrogate that privilege. The Protective Order The protective order entered by the district court allows Mount Sinai and ACS to redact the names of the participants in the studies, their street addresses, towns or villages, soci~ security numbers, employers, and unio~ registration numbers. Mou~nt Sinai a~ ACS contend t~t they should also he allowe~ to-redact counties~ of residence and union local data and to summarize birth and death dates by decade. They assert that without these modifications, the - 22 - = .......................................

81 9i tobacco companies and o~hers could identify the subjects, of the 2 studies. We decline to modify the ~ourtls protective order. 3 District Cou~ decisions fashioning disooveryprotective 4 orders are to be reversed only if there has been an abuse of discretion.- See Gelelle V. 0~ssis, 487 F.2d 986, 997 (2d Cir. 61 1973) ° While i~ might De possible for the tobacco companies to 7 determine the identities of some of the research participants from the information remaining on the computer tapes after the redactions ordered by the district court, the =curt h~s enjoined the~ fro~i doing so. Thus, the protective order provides that ~I "[sill persons . . . permitted access to the subpoenaed d0cttments • . • shall be . . ° prohibited from . . . identify[ing] or attempt[ing] ~o identify. . ~ the subjects of the two studies." Further, any person seeking access to the subpoenaed materials must first execute the Acknowledgement attached to the protective order, which subjects that person to the terms and condit~gn~of_the court,s order. Presumably the court would impose suitable sanctions against any person• who, in violation of these provisions, did attempt to identify a subject of the study. We cannot say that the court was required to grant fur~her~redactions as requested by Mount Sinai and ACS. We also reject the contention that further redaction w~s "2, ; required in order to preserve the physiclan-patlen~ privilege. • That privilege can he adequately protected by a court Order that prohibits disclosure cf the patient's Identity." See ~ ...... 26 Jewish Chronic Disease HosPital, 15 N.Y.2d 317, 258 N.Y,S.2d 397 12 13i ¼ ~5 ;I 16 17 18 20 22 23 24 ~ 25 [ • - 23 -

/ 1 2 3 4 5 6 7 8 9 10 11 12 / 13 14 l _ 15i 181 ~!.= - 12 19 20 21 22 23 24 25 26 tT~ ............ (i965). Assuming the existence of facts prere~isite to the assertion of such a privilege, we conclude that the protective order,s provisions for confidentiality are sufficient to preserve the privilege. In sum, the protectiva order fashioned by the district " court was not an abuse of discretion. CONCLUSION The orders of the district cou~ are affirmed. ° .............. _ - 24 -