Research and Its Revelation: When Should Courts Compel Disclosure?

As a longtime commentator on the uneasy relationship between law and science, I was asked to review six of the symposium papers in this issue of Law and Contemporary Problems that address judicially compelled disclosure of an unretained expert’s research results and opinions. The debate embodied in these papers is both lively and well-informed. After completing my review, however, I found myself largely in agreement with all the authors, yet still without a very clear answer to the question posed in the title—when should courts compel disclosure? The papers’ clear explanation of why the law favors disclosure and why researchers sometimes find it burdensome and oppressive should help bridge the gap between the culture of law and the culture of research especially scientific research. What is missing, however, is a synthesis that would provide a broader policy context and a framework for distinguishing between different kinds of cases and fact patterns. Thus, my objective in this review is to outline a conceptual matrix for the papers rather than to criticize them. I also suggest amendments to Rule 45 of the Federal Rules of Civil Procedure that would ease the friction between the law and experts who want to avoid other peoples’ litigation.