Correspondence

Subpoenas and Science

N Engl J Med 1997; 337:283-284July 24, 1997

Article

To the Editor:

I would like to expand on the brief allusion to “confidentiality certificates” in Bert Black's thoughtful Sounding Board article on subpoenas and science (March 6 issue).1 Such federally issued certificates allow researchers to protect the privacy of their research subjects by withholding information that could identify them from “any Federal, State, or local civil, criminal, administrative, legislative, or other proceedings.” 2 This makes confidentiality certificates useful in a variety of research settings besides those potentially involving product-liability cases that were the focus of the article. They are most frequently used in research on psychoactive-substance use and abuse, human immunodeficiency virus infection, and other socially stigmatized or illegal types of behavior. In these areas of research they have become almost routine, for the reason Mr. Black mentions. They are also becoming recognized as useful in protecting genetic data.3 For example, a confidentiality certificate would allow a genetic researcher to avoid becoming entangled in a paternity or child-custody lawsuit in which one party was seeking research data relevant to establishing the identity of the biologic parent.

David A. Gorelick, M.D., Ph.D.
National Institute on Drug Abuse, Baltimore, MD 21224

3 References

1. 1

   Black B. Subpoenas and science -- when lawyers force their way into the laboratory. N Engl J Med 1997;336:725-727
   Full Text | Web of Science | Medline

2. 2

   42 U.S.C. 242a(a).
   

3. 3

   Earley CL, Strong LC. Certificates of confidentiality: a valuable tool for protecting genetic data. Am J Hum Genet 1995;57:727-731
   Web of Science | Medline

To the Editor:

When I have been served with subpoenas seeking records that include patients' names and medical and other histories, my response has been simple and direct: I reply that I will provide such information only if the attorneys requesting it give me a written release from each individual patient, doctor, and attorney mentioned in any such records. This leads to quantitative and qualitative problems for the attorneys. Who will give the time, provide the personnel, and cover the cost of such releases? What if the patient has died? In data bases involving hundreds or thousands of records, these requests may involve hundreds or thousands of hours of work.

Jerrold L. Abraham, M.D.
State University of New York Health Science Center, Syracuse, NY 13210

Author/Editor Response

Mr. Black replies:

To the Editor: Dr. Gorelick and Dr. Abraham both make very good points. I am encouraged by Dr. Gorelick's report that the use of confidentiality certificates is becoming widespread. They address one of the major issues I discussed in my article, but I do not believe they obviate the need to amend the Federal Rules of Civil Procedure. Dr. Abraham's letter shows that at least one physician has learned something about the bargaining process that should take place after a subpoena is served. The response he recommends will work in many cases, but as the rules of litigation now stand, if a litigant wanted to forgo negotiation and simply enforce a subpoena, someone like Dr. Abraham might face the unpalatable alternatives I discussed.

Bert Black, J.D.
Hughes & Luce, Dallas, TX 75201