In re American Tobacco Company
In In re American Tobacco Company, 880 F.2d 1520 (2d Cir.1989) the Second Circuit has considered whether a researcher's interest in her data merited a protective order, but declined to conclusively rule on this issue.
The district court there had ruled that under state law, a researcher might have a cognizable interest in preventing disclosure of research data to protect her interest in publishing those results, although the existence of such a privilege was far from clear; the only state court case which could be said to have recognized the privilege focused its attention on the burden of the contested subpoena, and thus "it was possible that the court regarded the scholar's interest in his research data as merely a factor to be taken into account in weighing the burdens of production." Id. at 1528.
The court of appeals eventually determined that even if such a privilege existed, there was no possibility that disclosure would preempt publication, since the data requested had been published several years prior to the discovery battle at issue. In light of the significant need demonstrated by the tobacco companies, the privilege--even if one existed--would be overridden. Id. at 1530.