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Implementing a Taint Test to Address the Problems Raised by Compelled Disclosure

Duke University School of Law
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  • Law
  • Economics
  • Law


Comment: Implementing a Taint Test to Address the Problems Raised by Compelled Disclosure MCGOVERN.FMT 08/13/97 2:49 PM COMMENT IMPLEMENTING A TAINT TEST TO ADDRESS THE PROBLEMS RAISED BY COMPELLED DISCLOSURE FRANCIS E. MCGOVERN* Robert O’Neil on the one hand1 and Paul Carrington and Traci Jones on the other2 form the conceptual bookends to my thoughts upon reading the series of articles in this symposium. Professor O’Neil suggests that there are a number of significant drawbacks to allowing formal discovery of the research results of the scholarly community: (1) denying “control of the reporting and disclosure process”; (2) hampering “the research process”; (3) rushing partial or premature disclosure of research that is still in process; and (4) making disclosures of confidential information.3 Others, such as Professors Wiggins and McKenna, add to the list of negative repercussions of untrammeled adversarial discovery “the economic and tempo- ral demands of subpoenas,”4 the detrimental effect on future research, and “reputational harm . . . and embarrassment.”5 As seen by Professor O’Neil, the underlying problem is the absence of a recognized legal privilege for re- search.6 Instead of the current ad hoc nature of legal tests that balance the re- search enterprise against the litigants’ need for data, there should be a bright line rule to protect researchers. Recognizing the absence of such a definitive test, Michael Traynor7 suggests the next best alternative—a series of perspicacious preventative measures that Copyright © 1996 by Law and Contemporary Problems *Professor of Law, Duke University. Many thanks to Leslie Bryan, David Bernick, and the Judges of the Mass Tort Litigation Commit- tee of the Conference of Chief Justices. This paper could not have been completed without the assis- tance of my research assistant Jeff Beaverstock. 1. Robert M. O’Neil, A Researcher’s Privilege: Does Any Hope Remai

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