Florida Board of Governors

Scholars' Right to Keep Unpublished Work Private Is at Issue in Lawsuit

Source: The Chronicle of Higher Education, 10/14/2009

In a case with potentially major implications for scholars and publishers, a Stanford University professor who often serves as an expert witness against tobacco companies is fighting an effort by lawyers for the R.J. Reynolds Tobacco Company to obtain the manuscript of his unpublished and unfinished book on that industry.

A Florida state court judge has already authorized the tobacco company's lawyers to issue a subpoena requiring Robert N. Proctor, a Stanford professor of the history of science, to make his book manuscript available to them so they can comb it for possible material to use in cross-examining him in a civil lawsuit pending there.

But the lawyers for the plaintiffs suing the tobacco company last week filed a motion asking the court to reconsider that decision and protect Mr. Proctor from being forced to grant access to the unpublished manuscript. Their motion calls Mr. Proctor their "single most important witness" in their case against the tobacco company, and argues that forcing him to share the manuscript would violate his privacy, his free-speech rights, his academic freedom, and his rights as an author.

Mr. Proctor, for his own part, refused to produce the manuscript at a recent deposition in the case and has retained a San Francisco law firm to fight the subpoena—as well as any other efforts to obtain his book—in California state courts.

In an interview Monday, he said of the book: "It's my private thoughts. They are not organized yet. They are not in finished form."

"Why should the tobacco company be mucking around in private thoughts?" he asked. "They can see it when it is finished."

Lawyers for several firms representing R.J. Reynolds did not return calls Monday seeking comment. The Florida court where the case is pending, the state's Seventh Judicial Circuit Court in Volusia County, possibly could entertain arguments for and against the subpoena at a hearing scheduled for Thursday.

Implications for Academe
Robert M. O'Neil, director of the Thomas Jefferson Center for the Protection of Free Expression at the University of Virginia and a veteran scholar of issues related to academic freedom, said Monday that the legal fight over the manuscript "has profound implications" for academe. A decision by the courts to force Mr. Proctor to give up a copy of the manuscript, he said, "is likely to complicate, if not deter, future scholarship … if it means that such research-in-progress can be disturbed in this way."

Allan R. Adler, vice president for legal and governmental affairs for the Association of American Publishers, said the dispute over the manuscript is legally "not on very clear ground," and its outcome hard to predict, because there are few legal precedents dealing with similar fights over access to unpublished material.

Ann M. Arvin, Stanford's dean of research, last week sent the Florida court a letter urging it to consider society's interest in not forcing academic researchers to release research that has not been properly vetted and prepared for publication. She also said that compelling scholars to disclose unfinished research in such circumstances "could have the detrimental effect of discouraging scholars from participating as expert witnesses in litigation."

The Florida lawsuit is one of several in which residents of that state are attempting to obtain damages from tobacco companies by arguing that they have suffered as a result of tobacco addiction. The lawyers for the plaintiffs, Stella and Robert Koballa, say in their motion seeking to block access to Mr. Proctor's manuscript that he will present testimony arguing that R.J. Reynolds and other tobacco companies knew cigarettes were addicting long before the surgeon general declared them to be such.

Mr. Proctor said Monday that lawyers for the tobacco company have sought for more than a year to obtain the manuscript to his planned book, tentatively titled "Golden Holocaust: A History of Global Tobacco." He said he does not yet have a publisher for the book but is confident he will find one. His past books include The Nazi War on Cancer (Princeton University Press, 1999) and Cancer Wars: How Politics Shapes What We Know and Don't Know About Cancer (Basic Books, 1995).

In a deposition filed in connection with the Florida case, he describes himself as one of only two professors of history in the nation who regularly testify against the tobacco industry, and alleged that "the tobacco industry has spent years trying to harass, intimidate, and use multiple legal means to prevent me from testifying in litigation." He said that his book "will contain previously unpublished information regarding tobacco-industry practices," but that his manuscript remains unfinished and has not been through editing or peer review, and his working draft "currently contains my outlines, mental impressions, and notes."

"Release of the unpublished manuscript could cause damage to my professional credibility and professional standing as this manuscript is a work in progress and does not represent completed and fact-checked research," Mr. Proctor's deposition said.

Fear of Leaks
The transcript of an August meeting of Judge William A. Parsons and the lawyers for both sides in the case shows that the lawyers for R.J. Reynolds convinced the judge that the manuscript might contain information useful to their cross-examination, and that it was covered by state laws letting lawyers secure from one another any material that might at least lead them to evidence that could be used in court.

In granting the tobacco company's lawyers permission to issue a subpoena, however, Judge Parsons stipulated that they could not use the manuscript in other cases or disseminate it to other lawyers.

Mr. O'Neil of the Thomas Jefferson Center argued Monday that, even with such a stipulation, there remains a danger that the manuscript could be leaked out in a manner that would embarrass Mr. Proctor.

The motion asking the court to reconsider its decision to authorize the subpoena argues that forcing Mr. Proctor to relinquish the manuscript would violate his rights under federal copyright law and put his ability to economically benefit from his book in jeopardy. It also argues that Florida's privacy laws give Mr. Proctor a right to retain the book, that he should be regarded as a journalist and covered by legal precedents protecting journalists from compelled disclosure of unpublished material, and that forcing him to produce the manuscript would infringe upon his academic freedom.

The motion also argues that the manuscript is unlikely to produce information that the lawyers for the tobacco company will find useful. If they are trying to get at his views of the tobacco industry, they can use cross-examination or comb through his already published writings, the motion says.

"Only Robert Proctor knows what [the book] says," said Jonathan D. Kaney Jr., a lawyer for the plaintiffs in the case. "But you can bet it does not say anything nice about R.J. Reynolds."