The current issue of Sociological Forum has my essay on subpoenas of ethnographers and their field notes: "How Do You Solve a Problem Like Subpoenas?" Here is the opening paragraph:
Virtually no one ever welcomes a subpoena, especially when it comes as a surprise. At best, responding to a subpoena will require hours of time, retrieving documents and perhaps appearing at a deposition. At worst, the subpoena will demand disclosure of confidential information that threatens to compromise trusted relationships. In late 2017, Shamus Khan found himself in the latter situation when he was served with a subpoena seeking field notes, other documents, and deposition testimony relating to his ethnography, Privilege: The Making of an Adolescent Elite at St. Paul’s School (Khan 2011). Khan’s moving and thoughtful essay, recently published in this journal, carefully addresses the difficult decisions confronting an ethnographer under subpoena, supplemented by a response from Jack Katz (2019).From a law professor’s perspective, the two sociologists got most things right, some things wrong, and left several important issues insufficiently explored (Katz 2019;Khan 2019).
Sociological Forum (2019)
You can see the entire article here, although Sociological Forum requires free registration. Alternatively, I have been authorized to post my penultimate draft, which is after the jump.
How Do You Solve a Problem Like Subpoenas
INTRODUCTION
Virtually no one ever welcomes a subpoena, especially when it comes as a surprise. At best, responding to a subpoena will require hours of time, retrieving documents and perhaps appearing at a deposition. At worst, the subpoena will demand disclosure of confidential information that threatens to compromise trusted relationships. In late 2017, Shamus Khan found himself in the latter situation when he was served with a subpoena seeking field notes, other documents, and deposition testimony relating to his ethnography, Privilege: The Making of an Adolescent Elite at St. Paul’s School (Khan 2011). Khan’s moving and thoughtful essay, recently published in this journal, carefully addresses the difficult decisions confronting an ethnographer under subpoena, supplemented by a response from Jack Katz. From a law professor’s perspective, the two sociologists got most things right, some things wrong, and left several important issues insufficiently explored.
The case involved a young woman named Chessy Prout who was suing St. Paul’s over an incident of student-on-student sexual abuse that occurred some years earlier (Khan 2018).[1] Prout claimed that the school had ignored, and thus encouraged, an environment of sexual exploitation of younger students by upperclassmen. Because Khan’s book – based on research conducted in 2004-05 – had described “ritual sexual abuse” in which “girls were expected to perform sexual acts on boys,” Prout’s attorneys believed that he might have information that could establish the school administration’s awareness of a “toxic sexual culture,” an essential element of their case.
Khan disclaimed relevant knowledge, but he recognized that was not for him to decide. As a non-lawyer, Khan could not have known, much less evaluated, which information would or would not have been useful to Prout’s claim. In litigation, a seemingly innocuous detail, perhaps meaningless to a lay person, may suggest the path to more probative evidence. It is the lawyer’s job to begin pulling threads in order to see how things may eventually unravel. To Prout’s attorneys, therefore, Khan was an obvious witness, and it would have verged on malpractice had they not attempted to explore his background knowledge of the sexual atmosphere at St. Paul’s.
CONFIDENTIALITY
If relevance had been the only issue, Khan might just as well have turned over the documents and appeared for his deposition. But of course, there were bigger problems. At St. Paul’s, Khan “had assured research subjects” that all information “would be strictly confidential.” Moreover, he was then in the midst of a new project on sexual assault in which he “had made assurances to hundreds of students at Columbia University and Barnard College that I would keep their information confidential.” Breaching confidentiality of the St. Paul’s informants, he reasoned, would likely “have destroyed my relationship with my subjects” in the current study. Thus, Khan “quickly decided” that he could not comply with Prout’s subpoena (Khan 2018).
Let me suggest that Khan should have given the matter more thought. To his credit, he realized that resisting the subpoena “was, in part, acting in a way that was hostile to a sexual assault survivor,” thereby impeding “her search for justice,” but he immediately concluded that it was more important to maintain the trust of his current subjects. This has been the response of nearly every other ethnographer who has weighed in on the question (Marquart, 1986; Scarce, 2005; Katz, 2018), almost reflexively treating any subpoena as an imposition or intrusion, rather than as necessary to fair trials. In doing so, they have undervalued the importance of subpoenaed testimony.
Access to “compulsory process” in criminal cases is so fundamental that it is included in the Sixth Amendment to the Constitution, along with a defendant’s rights to counsel, speedy and public trial, notice of charges, and confrontation with witnesses (Amar, 2005; 331). In the over-arching balance of public interests, it is far from evident that an ethnographer’s promises should automatically override a bedrock constitutional right. Cases such as Prout’s are not covered by the Sixth Amendment, but every state affords civil litigants the right to subpoena witnesses, subject to certain limitations, on the theory that it is a civic obligation – much like jury duty – to provide evidence.
Although Khan was not dealing with a criminal defendant’s subpoena, neither did his essay differentiate between civil and criminal cases. Rather, he proposed that an ethnographer’s “default” position should be to challenge every subpoena. Compliance should occur only under extraordinary circumstances – such as the threat of “imminent interpersonal violence” – and even then only “if the subjects themselves were informed of the likelihood of such a decision.” Writing many years after the fact, Richard Leo reconsidered his reflexive resistance to a defendant’s subpoena in a criminal case. “With hindsight,” he told me, “the defendant’s due process right to the information in my notes clearly outweigh[ed] any research interest in keeping the information confidential” (Lubet, 2017).
Prosecutors’ claims should likewise be given greater consideration. In 1993, Rik Scarce, then a graduate student at Washington State University, spent 159 days in jail for refusing to answer questions before a grand jury that was investigating extensive vandalism at the university’s Avian Health Laboratory, for which the Animal Liberation Front had taken credit. Although Scarce insisted that his stance was necessary to protect his research, the questions were actually directed at his possible observation of a subject’s preparation to commit the crime, which had caused over $100,000 damage. In fact, the subject had indeed vandalized the laboratory – smashing equipment, and spreading dangerous chemicals – to which he later pled guilty (Rahner, 1999; Associated Press, 2017). He had likely assembled his materials in Scarce’s home, where he had been staying until the day of the crime. Scarce’s insistence that the prosecutor had no right to ask him “any questions at all” about his research subjects (Scarce, 2005) simply ignored the strong public interest in law enforcement. No ethnographer ever wants to be a cop, but, as Khan points out, it is not unethical to breach confidentiality concerning “a plan to commit a violent crime” (Khan 2018). The necessary exception, however, is not limited to violence.
In the Watergate tapes case – involving, as President Nixon’s defenders put it, only a “third-rate burglary” – the U.S. Supreme Court held that even the president’s assertion of confidentiality “must yield to the demonstrated, specific need for evidence in a pending criminal trial and the fundamental demands of due process of law in the fair administration of criminal justice” (U.S. v. Nixon, 1974). Khan’s essay would have been stronger if he had more clearly distinguished between subpoenas in civil and criminal cases.
REPERCUSSIONS
Another of Khan’s concerns – that his compliance would have impeded research by other ethnographers – is overstated. There is virtually no evidence that an instance of compelled testimony or document production, even in breach of a confidential relationship, has had lasting repercussions beyond the case itself. President Nixon was forced to turn over the Watergate tapes to the special prosecutor (U.S. v. Nixon, 1974), leading to his resignation, but that has not prevented subsequent presidents from holding candid discussions with their advisors. Over objection, President Clinton’s secret service guards were ordered to testify before the grand jury during the Lewinsky scandal (In re Sealed Case, 1998), but presidents have nonetheless continued to rely on the discretion of the Secret Service. It has been over forty years since the Supreme Court of California held that psychotherapists have an affirmative duty to reveal confidences in order to protect potential victims from threats of harm (Tarasoff v. Regents of the University of California, 1976), which has not prevented countless patients from confiding in their therapists. While many reporters have gone to jail rather than disclose sources, others have complied with subpoenas for documents, tapes, or testimony, including at least 14 times in 2017, which does not appear to have done any significant damage to journalists’ fact gathering (U.S. Department of Justice, 2017; there are likely many other instances in state jurisdictions).
I have come across only one case in which an ethnographer actually testified under subpoena. In the early 1990s, as a graduate student at the University of California, Berkeley, Richard Leo was conducting research at a “large, urban police department,” which occasionally involved observing the interrogation of suspects. In one case, Leo was subpoenaed by a defendant who was attempting to suppress his confession. Despite Leo’s vigorous objection, he was ordered by the judge to testify at a pretrial hearing (Leo, 1995). Faced with the threat of jailing for contempt of court, Leo complied with the order, which appears to have had no effect on the ability of generations of ethnographers to conduct their research, even in Northern California.
Katz is concerned that subpoena compliance will harm “the research community’s collective reputation” (Katz, 2018), thus making it difficult or impossible to gain the trust of future research subjects. Beyond the world of academics, however, the ethnographic research community does not actually have a “collective reputation” to jeopardize, even among well-informed professionals. Veteran investigative reporter Steve Mills, previously with the Chicago Tribune and now with ProPublica, told a symposium audience that he “had never heard of the word ‘ethnography’” and “didn’t know what it was or is” until he was invited to speak on a panel on “Ethnographic Evidence” at Northwestern (Panel Discussion, JLSP, 2018).
In contrast to Khan’s student-subjects at Columbia and Barnard, there is no self-aware community of potential research participants who are likely to share information on the grapevine. An ethnographer who complies with a subpoena will almost certainly do so in general obscurity – outside of certain university environs – and there would be scant reason to fear for the “investigative potential” of other researchers (Katz, 2018). The relationships between presidents and their advisors, psychotherapists and their patients, and journalists and their sources, have survived highly publicized instances of compelled testimony. Ethnographers and their research participants would surely fare the same.
None of this is to say that Khan did the wrong thing by resisting Prout’s subpoena, given his unusual situation. Khan’s testimony was demanded in a campus sexual abuse case, even as he was conducting sensitive research on campus sexual abuse. Moreover, his study was taking place at his own university where he is a well-known figure. Perhaps uniquely, Khan’s research participants were members of a relatively small community that would have become acutely aware of his compliance with Prout’s subpoena. While that would have had little or no impact on ethnographers in other locales, it definitely had the potential to disrupt, and perhaps derail, Khan’s current project. He sincerely believed that cooperation with Prout’s lawyers would break his promises to his former subjects and thereby make it impossible to obtain candid disclosures from new participants.
Thus, Khan cannot be faulted for pursuing lawful measures to protect his interests while hoping that Prout’s lawyers would not push him to the wall. Fortunately, his resolve was not tested. Although neither Columbia University (where he is employed) nor the University of Wisconsin (where, as a graduate student, he conducted the underlying research) came to his defense, Khan was able to retain private counsel who persuaded the plaintiff’s attorneys to refrain from enforcing the subpoena. The case was eventually settled without Khan’s participation.
PROMISES
The root of Khan’s dilemma was his seemingly blanket commitment to keep all information “strictly confidential.” Doctors and lawyers do not make such sweeping promises, given the numerous exceptions to their legally recognized privileges. As Katz notes, the law does not reliably recognize an ethnographer-subject privilege, and thus the promise of confidentiality “implies a guarantee that the researcher does not have the power to give.” Katz wisely advises ethnographers to tell research participants only that they will “anonymize the subject’s identity in anything written from the project,” explaining that “the ethical challenges and legal vulnerabilities in fieldwork are so extensive and unpredictable that saying more will be saying less” (Katz, 2018).
Many states have “shield laws” that provide a measure of protection – called “qualified privilege” – to journalists under subpoena for notes or testimony. A few courts have extended this privilege to scholars (Cusumano v. Microsoft Corp., 1998). The journalists’ privilege is extremely limited, however, with no application in federal courts, making its availability to academics unpredictable at best. Thus, Katz proposed a number of means by which ethnographers can “armor” themselves against subpoenas.
Katz’s major strategy involves raising the cost of pursuing a subpoena – much as Khan did by retaining private counsel – until it outweighs the likely value of the potential testimony. The goal is to make it “too much trouble or not rewarding enough for a prosecutor or personal injury lawyer to press the issue” (Katz, 2018). Katz is no doubt right that a cost/benefit analysis may cause lawyers to back off, but he put too much faith in the power of bad publicity, on the theory that “it is potentially costly for prosecutors to be seen as pressuring otherwise blameless university researchers.” Prosecutors routinely serve subpoenas on “otherwise blameless” news outlets, often pursuing them relentlessly through trial and appellate courts. Since 2017, at least 33 journalists have been subpoenaed in criminal cases, in which 17 were upheld or enforced (U.S. Press Freedom Tracker, 2019). There is no reason to think that prosecutors would be more deferential to universities than to newspapers.
In a variation on that theme, Katz suggests that IRB approval can be leveraged into a plausible defense against subpoenas. Because “IRBs require researchers to maintain confidentiality as an extension of federal and state legal requirements,” he asserts, “IRB approval by itself implements government power to protect confidentiality.” Katz has conflated confidentiality (the obligation to refrain from voluntary disclosure) and privilege (legally enforceable protection from compelled disclosure). Although there is considerable overlap in the concepts, and the terms are casually used interchangeably, many confidential communications are nonetheless unprivileged. For example, the Family Educational Rights and Privacy Act generally prohibits colleges and universities from voluntarily releasing certain confidential student information, but it does not create a privilege to withhold the same information when properly subpoenaed (FERPA, 2019). Katz’s logic is superficially appealing, but it is unlikely to discourage, much less dissuade, a determined attorney.
FIELD NOTES
The destruction of field notes would prevent their later production in court, but Khan and Katz disagree about the advisability of this stratagem. Khan recognizes that the subpoena of ethnographic records is exceptionally rare, and that routine destruction would therefore be “extreme, unnecessary, and inconsistent” with good practice, given that other professionals such as lawyers and doctors, “experience litigation in orders of magnitude greater than scholars and yet scrupulously maintain their notes.” (Disclosure: Khan cites his correspondence with me for this proposition.)
In contrast, Katz believes that “destroying field notes as a matter of routine should be seriously considered.” Once the underlying study has been published, he argues, it is unlikely that ethnographic data “will remain useful for scientific advance.” In fact, it is only “a hopeful fantasy that they will be invaluable resources for the ethnographer’s intellectual biographer” (Katz, 2018). Maybe so, but speaking now as a historian, I have to say that the negligible prospect of a subpoena is still outweighed by even remote archival value.
As Katz further observes, there may also be some risk involved in destruction, depending on the timing: “If field notes are destroyed after an investigation starts, the researcher may face even more uncomfortable ethical and legal problems than would have materialized had the notes been produced.” This is a dangerous understatement. Once an ethnographer has notice of an investigation – even in the absence of a subpoena – the destruction of notes would constitute obstruction of justice. In 2002, an auditor for the Enron Corporation went to prison because he had participated in the destruction of accounting records – purportedly as routine housekeeping – that had not yet been subpoenaed or requested by the government (Eichenwald, 2002; Lubet 2002).
Katz’s solution is to destroy notes at the earliest opportunity, which he calls “ethical and smart.” Instead, let’s just call it pointless. By my rough count, social scientists have been subpoenaed about once decade over the past fifty years, and even in those cases there has seldom been enforcement.[2] Randol Contreras (2012) and Philippe Bourgois (2003) published widely read ethnographies about serious criminals, yet they never faced subpoenas. Destroying field notes may not be quite the same as snapping your fingers to keep away the ghosts – see, it works – but it comes close.
CONCLUSION
Khan closes with some sensible proposals for protecting ethnographers who may be served with subpoenas (Khan, 2018). I endorse them all, but I think it would be especially helpful for the American Sociological Association to pursue two of Khan’s solutions. First, the ASA should promulgate ethical guidelines precisely specifying the assurances that ethnographers should provide to research participants, as well as the situations in which they may break confidentiality in compliance with subpoenas or court orders. In addition, the ASA should take the lead in lobbying universities to assist graduate students and faculty as necessary to preserve the confidentiality of sources.
REFERENCES
Amar, Akhil. 2005. America’s Constitution: A Biuography. New York: Random House.
Associated Press, “Michigan Man Admits to Decades-Old ALF-Related Attacks, Including One at WSU,” Seattle Times, February 26, 2017.
Bourgois, Philippe. 2003. In Search of Respect: Selling Crack in El Barrio. New York: Cambridge University Press.
Contreras, Randol. 2012. The Stickup Kids: Race, Drugs, Violence and the American Dream. Berkeley, California: University of California Press.
Cusumano v. Microsoft Corporation, 162 F.3d 708 (1st Cir. 1998).
Eichenwald, Kurt. 2002. “Guilty Plea Seen in the Shredding of Enron Records,” New York Times, April 9, 2002.
Family Educational Rights and Privacy Act of 1974, 20 U.S.C. § 1232g (2019).
In re Sealed Case, 148 F.3d 1073, 1076 (D.C.Cir.1998)
Katz, Jack. 2018. “Armor for Ethnographers,” Sociological Forum. 34:1: 264-275.
Khan, Shamus R. 2011. Privilege: The Making of an Adolescent Elite at St. Paul's School. Princeton, NJ: Princeton University Press.
Khan, Shamus R. 2018. “The Subpoena of Ethnographic Data,” Sociological Forum. 34:1: 253-63.
Leo, Richard A. 1995. “Trial and Tribulations: Courts, Ethnography, and the Need for an Evidentiary Privilege for Academic Researchers.” The American Sociologist 26: 1: 113– 134.
Lubet, Steven. 2002. “Document Destruction after Enron: Is It Still Housekeeping or Is It a Crime?” 4 Journal of Appellate Practice and Process 323.
Lubet, Steven. 2017. Interrogating Ethnography: Why Evidence Matters. New York: Oxford University Press.
Marquart, James. 1986. “Doing Research in Prison: The Strengths and Weaknesses of Full Participation as a Guard.” Justice Quarterly 3:1:15-32.
“Panel Discussion: Ethnographic Evidence,” 13 Nw. J. L. & Soc. Pol'y. 138 (2018).
Prout, Chessie. 2018. I Have the Right: A High School Survivor’s Story of Sexual Assault, Justice, and Hope. New York: McElderry.
Rahner, Mark. 1999. “Equipment Is Destroyed At WSU Research Center — Animal Liberation Front Claims Responsibility,” Seattle Times, November 22, 1999.
Scarce, Rik. 2005. Contempt of Court: A Scholar's Battle for Free Speech from Behind Bars. New York: AltaMira Press.
Tarasoff v. Regents of the University of California, 17 Cal. 3d 425 (1976).
United States Department of Justice. “Use of Certain Law Enforcement Tools to Obtain Information from, or Records of, Members of the News Media; and Questioning, Arresting, or Charging Members of the News Media.” https://www.justice.gov/criminal/file/1082556/download (accessed March 24, 2019).
United States v. Nixon, 418 U.S. 683 (1974)
U.S. Press Freedom Tracker https://pressfreedomtracker.us/subpoena/ (accessed March 24, 2019).
[1] I have used Prout’s name because she has previously publicly identified herself (Prout, 2018).
[2] My count obviously includes only known cases; there may well be others in which the individual quietly complied without going public.