Deitchman v. E.R. Squibb & Sons, Inc
In Deitchman v. E.R. Squibb & Sons, Inc., 740 F.2d 556 (7th Cir.1984), where it vacated and remanded a district court's order quashing a subpoena for research data on the connection between the drug diethylstilbestrol ("DES") and cancer.
Balancing the need for disclosure against any harm it might impose, the court found the burden of disclosure significant. The information sought--a registry of patients suffering from vaginal cancer--was a critical tool for epidemiological research, and since it was obtained from patients with a promise of strict confidentiality, the continued viability of the registry could be severely compromised by disclosure. Id. at 559-60.
This concern, the court determined, could be sufficiently addressed by conducting discovery in a manner which preserved confidentiality. Id. at 560.
The second interest asserted by the researcher in his effort to defeat the subpoena was similar to that discussed in Dow: he wished "to divulge to the public the results of his studies only in his own time and way." Id.
Without exploring this issue, the court tersely acknowledged that it had previously recognized an interest in protecting research material from premature disclosure:
"We agree arguendo that the research materials may enjoy a qualified privilege and are not to be pried into unnecessarily." Id. at 560-61. O
n the other side of the scale, the Seventh Circuit found the company's need for the data more compelling than had the district court; without discovery, it could not review the study protocol for any flaws or biases. Id. at 563. 318 U.S.App.D.C. 286 Although remanding for issuance of a protective order that addressed the need for patient confidentiality and reimbursement of discovery expenses, the court indicated that discovery of material which did not reveal patient identities or the researchers' as-yet unpublished conclusions (as compared with factual information regarding, inter alia, study protocols, questionnaires, and statistical analyses) was appropriate. Id. at 564-65.