Tobacco Documents Online

! 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 -