When drawn into other parties' litigation or investigations, journals
often receive requests or subpoenas for confidential peer review documents.
We describe reasons for such requests and reasons that journals resist producing
confidential documents, ways that journals respond, and steps that journals
can take to minimize third-party breaches of journals' confidential processes.
We discuss legal principles on which resistance may be based in the United
States, including the journalist's privilege, the scholar's privilege, the
burdensomeness of response, and the Federal Rules of Civil Procedure, which
protect against attempts to obtain expert opinion testimony without compensation.
Illustrative cases are described in which courts affirmed the confidentiality
of peer review conducted by journals.
During the peer review process, information and documents are generated
that authors, reviewers, editors, and journal policy may consider to be confidential.
Examples of such information include the identity of the reviewers and potential
reviewers, substantive and editorial comments by outsider peer reviewers and
internal editorial reviewers, recommendations on acceptance for publication,
written discussion about whether a manuscript should undergo peer review,
and the manuscript itself in its various drafts. Confidentiality varies among
these items, and it may be treated differently when third parties request
In the United States, journals may receive either a subpoena for confidential
information or a "request" from a federal agency, such as the Office of Research
Integrity, the Food and Drug Administration, and the Office for Human Research
Protections. Many federal agencies do not have subpoena power and thus attempt
to secure information by citing their regulatory authority; they generally
cannot compel a journal to provide the requested information. Subpoenas may
be issued in conjunction with civil litigation between private litigants or
in conjunction with a criminal investigation. The types of cases in which
a civil litigant might serve a subpoena to a journal or editor include patent
infringement or invalidation, toxic torts, product liability, and medical
malpractice. Often the subpoena that seeks the production of certain documents
is followed by or joined with a notice of deposition that seeks the testimony
of an editor or reviewer.
Litigants seek facts that might assist their cases; for example, a reviewer
provided information that indicated that the "invention" disclosed in a publication
was well-known to those in their discipline and thus was not an invention.
Other litigants seek to identify counterexperts who they can use in their
case; that is, they might hope that the editors have selected or identified
reviewers who have specialized expertise. Litigants sometimes hope to undermine
the opposition's experts by culling critical remarks from the reviews about
the opposition's experts' theories and or publications.
To protect confidentiality, journals and authors use an assortment of
federal and state constitutional provisions, state shield laws, and common
law protections. The legal doctrines a journal might cite when resisting a
subpoena for confidential information will depend on the facts and circumstances
of the subpoenas. It will also depend on the jurisdiction in which the subpoena
is served. A journal would be subject to the jurisdiction of the courts in
which it operates or has significant contacts. Often the authors and reviewers
work in other jurisdictions and may even be in other countries. In such cases,
litigants will try to establish that the reviewers, editors, and journal had
sufficient contact with the jurisdiction in which the case is pending to be
subject to the court's jurisdiction. If not, the litigants will attempt to
get the information from a party who is subject to the court's jurisdiction.
Successful motions to quash have been premised on the journalist's privilege
and the scholar's privilege, as well as the First Amendment. Motions may also
cite the burdensomeness of responding1 and
Rule 45 of the US Federal Rules of Civil Procedure, which protects individuals
against an attempt by a party to litigation to get expert opinion testimony
without paying for the expert's time.
Inherent in every example of a privilege that shields documents or individuals
from requests for discovery is a tension between society's need for relevant
evidence and the need to protect a nonlitigant's confidential information
from unwarranted disclosure. Thus, the following balancing test is conducted.
First, the court examines the hardship that the party resisting discovery
will suffer if compelled to produce the requested documents. Second, the court
will examine whether the disclosure is relevant and necessary to the party
requesting discovery and will compare that to whether the discovery is deemed
harmful to the resisting party. Third, the court will give more weight to
interests that have a distinctly social value than to purely private interests.
The following cases involved subpoenas for confidential peer review
information and illustrate how the journals and courts resolved issues, depending
on the nature of the information sought.
The case of Block v Abbott Laboratories2 reflects the types of information requested in a subpoena,
the circumstances in which such a request might be made, and the responses
of journals and authors on receiving such a subpoena. In Block v Abbott Laboratories, a litigant requested information and documents.
The litigant requested "[a]ll documents relating to" a published article3 and letter to the editor,4
"including, without limitation, all correspondence, reviews, evaluations,
written comments and proposed or actual revisions." The word "document" was
defined "in the broadest sense of the term, . . . and shall include without
limitation all writings and recordings of every kind regardless of the medium
of storage, including all notes, summaries, correspondence, electronic mail,
drafts, attachments to documents and all copies of documents that are not
identical duplicates of the original, whether or not the original is in your
possession, custody or control."
The journal resisted producing the documents, asserting that communications
between authors and editors are confidential, as are communications among
them and peer reviewers and staff, and that confidentiality is needed to ensure
frank analysis and deliberations. The journal argued further that maintaining
confidentiality serves to protect the public interest in the free flow of
this discussion. The journal argued that the documents were privileged from
disclosure by "among other privileges, the newsgathering and editorial privilege,
the peer-review analysis privilege, and the self-evaluative privilege." The
privileges the journal cited are not formally recognized, but reflect a strong
public policy underpinning a news gatherer's right to cite confidential sources
and the confidentiality typically afforded a peer review or self-evaluative
process. The litigants did not oppose the motion to quash, and the court granted
the journal's request to be relieved of the obligation to produce the documents.
In the same case, the litigants sought from the author an unpublished
scholarly article that was in press at the same journal and "all materials
relating to its submission for publication." In quashing the subpoena, the
court noted,5 "the article is not finished,
is subject to revision and should not be considered complete until it is published."
Further, the court noted the article was "highly likely" to be published before
the trial for which it was wanted. Also in the court's balance was the researcher's
need to "preserve the integrity of his work, protect his intellectual property
and safeguard his reputation and credibility" by controlling the distribution
of his article before publication. The court wrote, "[The author's] interests
cannot be protected unless he is able to retain control of the article until
it is complete; and where the purpose of the article is publication, complete
must be defined as published. Only in this way is [the author] able to preserve
the integrity of his work, protect his intellectual property and safeguard
his reputation and credibility. ‘Academicians engaged in pre-publication
research should be accorded protection commensurate to that which the law
provides for journalists.' Cusamano v. Microsoft Corp., 162 F.3.708, 713 (1st Cir. 1998). . . . [T]he product of [the author's] efforts is fairly
The protection provided to reporters may extend to journals. In Cukier v American Medical Ass'n,6
an author had sought the identity of persons or entities who had made statements
to the JAMA editors indicating that the author had a financial interest
in the publication of the manuscript. The author indicated that he had no
financial conflict of interest, but the manuscript was declined for publication.
The author subsequently filed suit seeking the identity of the person(s) who
had made such statements to JAMA. JAMA resisted providing such information,
citing the Illinois Reporter's Privilege Act among other defenses. In support
of this argument, JAMA submitted an editor's affidavit that described the
confidentiality of its peer review process and JAMA's commitment to abide
by the strict standard of peer review confidentiality of the International
Committee of Medical Journal Editors.7 The
court found that the JAMA editors were "reporters" within the meaning of
the Reporter's Privilege Act.
A separate "scholar's privilege" is recognized by courts in some jurisdictions,
typically in cases in which a study is incomplete or unpublished. Again, a
balancing test is applied. In Solarex Corp. v Arco Solar,
Inc.,8 Arco was a party in a patent
infringement case and sought the identity of a scholarly journal's confidential
peer reviewers and "all documents . . . relating to the submission." The authors
of a scholarly manuscript had submitted it to a first journal. The editor
of the first journal forwarded the manuscript to experts in the field, indicating
the confidential nature of the document. One reviewer gave a positive review;
the other gave a negative review. The editor forwarded the critical review
to the authors and suggested revision. Rather than rewriting the article,
the authors submitted the article to a second journal that published it. The
litigants sought the identities of the first journal's peer reviewers to determine
whether they had circulated the article to others such that the article would
have been deemed to have been published under intellectual property law and
would constitute "prior art" such that the relevant patent would be invalid.
(The comments of the reviewer had already been produced because they had been
provided to the author and thus were not deemed confidential.) The court declined
to find a specific peer review privilege, but, when balancing the interests
of the parties and society, the court noted that if independent reviewers
believed their identities would be revealed, it was likely that they would
not be as forthcoming in their criticisms. Thus, the court quashed the subpoena.
Journals often wish, for a variety of reasons, to resist subpoenas and
requests for information arising from the peer review processes. First, complying
with a subpoena is disruptive to the journal's activities and processes. Time
and resources spent responding to a subpoena detract from the journal's other
activities. Second, substantial costs can be incurred in responding to a subpoena,
particularly a broad subpoena, for example, a request for all communications
relating to the review of a manuscript, including the reviewers considered
for such manuscript. In addition to the search and duplication costs, if documents
are produced and the identities of reviewers and editors are revealed, litigants
often will seek to depose the reviewers and editors. Providing testimony carries
risks that are difficult to foretell, and depositions can involve significant
legal expenses for the journal and its reviewers. Third, providing confidential
information may violate the confidentiality obligations that a journal has
assumed with submitting authors, and it may be deemed a waiver of confidentiality
such that a journal will have difficulty resisting future requests for such
information. Moreover, the perceived breach of trust may damage valuable relationships
not only with the authors and reviewers involved in the case, but also with
other current and potential authors and reviewers. Finally, a subpoena may
be a form of harassment the litigants use against the journal or submitting
authors who support a position contrary to the litigant's position.
If a subpoena or request for information arrives, a journal can take
several steps to control what, if any, information will be released. On receiving
such a request, the journal editors must recognize that, in general, when
crafting subpoenas, attorneys are trained to ask for every document that might
have some value for their case and often the attorneys do not know how broad
their request is. Thus, editors can object to the scope and burdensomeness
of responding to such a request and begin to negotiate with the parties who
have served the subpoena.
Negotiation can be complex. Often, a recipient of a subpoena or request
can convince a party to narrow the scope of the request, for example, to release
the journal from providing all documents relating to the submission and to
provide only the most relevant substantive communications or the reviews but
not the identities of the reviewers. The litigants may allow the journal to
redact irrelevant confidential information. Journals may require that the
documents containing confidential information be destroyed or returned after
they have been reviewed or the case has been concluded. Disclosure may be
limited to experts or attorneys such that the confidentiality of the documents
is preserved as much as possible. Finally, the journal may seek indemnification
if the reviewers or authors sue the journal for breach of confidentiality;
indemnification can include reimbursement for the cost of litigation and any
award made against the journal for such breach. If such negotiations are unsuccessful,
the journal can file a motion to quash to allow the court to determine the
journal's need to comply with the subpoena.
A variety of business and legal reasons exist for journals to resist
providing confidential communications in response to a subpoena or request
for such communications. Journals that wish to preserve the confidentiality
of their peer review and editorial processes have a variety of legal principles
and techniques available to them to resist producing such confidential documents.
In evaluating how to respond, the journal should consider not simply the case
that prompted the subpoena or request, but also the long-term consequences
for the journal and for the biomedical communications community of providing
such information without resisting such a disclosure.
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