More Coverage, More Problems: No Private Remedies for Kentuckians Hurt by HIPAA Violations After Adoption of the Affordable Care Act
Note | KLJ Online Committee Editor Chelsea Hayes discusses the shortcomings of Kentucky law in protecting patients from violations of privacy, and what the state should do about it
Note | 103 KY. L. J. ONLINE 7 | Aug. 7, 2015
Chelsea N. Hayes[1]
Introduction
Kentucky is leading the way in America’s first state-based exchange to implement the Affordable Care Act (hereinafter “ACA”).[2] While this presumably will assist the one in six Kentuckians who are uninsured,[3] doctors and medical facilities may mistakenly disclose private documents with the high influx of new patients. Therefore, Kentucky citizens may question how to resolve violations of privacy mandated by the Health Insurance Portability and Accountability Act (hereinafter “HIPAA”).[4]HIPAA does not create a state-based private cause of action for violations of its privacy provisions.[5] Kentucky also has no state statute or common law right allowing state private causes of action for HIPAA violations.[6] While Kentucky has legislated a statute allowing private causes of action for other state statute violations, this right does not extend to federal statutes (e.g. HIPAA), regulations, or local ordinances.[7] Because HIPAA does not provide a plaintiff a federal private cause of action,[8] Kentucky refuses to infer a right where Congress has not.[9] Currently, the only way a person may pursue HIPAA violations is by filing a complaint with the Federal Office of Civil Rights (hereinafter “OCR”),[10] yet the individual receives no personal compensation.This note will first explore the interplay between the ACA and HIPAA in Section I, elaborating on Kentucky’s adoption of the ACA and expansion of its medical landscape. Section II explains existing precedent regarding state remedies for HIPAA violations and emphasizes aggrieved Kentuckians’ lack of recovery. Section III illuminates how Kentucky’s medical landscape is not unique from other states’, which allow state based causes of action. As a result, Kentucky should enact a statutory private cause of action to develop its medical landscape alongside the expansion of healthcare similar to West Virginia’s legislative scheme.
I. Background: Interaction between The Affordable Care Act and HIPAA
The implementation of the ACA allows millions of Americans the opportunity to receive affordable healthcare. Kentucky quickly adopted the ACA on a state level to provide statewide coverage and accessibility to Kentuckians.[11] As the number of individuals accessing healthcare increases, providers may become overwhelmed, and some protected health information may be unintentionally disclosed to the public. HIPAA governs these disclosures via regulations, violations, fines, and incarcerations,[12] incentivizing doctors and other health professionals to proceed carefully and diligently with the influx of patients. HIPAA alone, however, is insufficient to adequately address privacy because enforcement wavers at best, and individuals cannot receive adequate compensation because no federal private cause of action exists.
A. The Affordable Care Act
The ACA, enacted in 2010, employed a patient’s “Bill of Rights,” allowing “the American people the stability and flexibility [needed] to make informed decisions about their health.”[13] As of January 1, 2014, an estimated 14 million Americans will gain health insurance coverage via the Medicaid expansion or individual and/or small business tax reimbursements to lower healthcare costs via the federal and participating state exchanges.[14]These implementations provide individuals minimum health coverage that was once too costly to afford. More particularly, the Medicaid expansion[15] allows more vulnerable individuals 65 years or younger with an annual income below 133 percent of the federal poverty line to gain coverage despite pre-existing conditions or the inability to pay.[16] This means great benefits for the 7.8 million rural Americans who the United States Department of Health and Human Services (hereinafter “HHS”) predicts gained access to medical coverage under the ACA expansion.[17] Kentuckians are among these Americans who will benefit greatly.
B. Kentucky’s Adoption of the ACA
In 2013, 640,000 Kentuckians were uninsured, entailing approximately 15 percent of the state’s population.[18] Prompted by the ACA, Kentucky created Kynect, its state healthcare exchange.[19] According to the Washington Post, “56,422 [Kentuckians] have signed up for new health-care coverage, with 45,622 of them enrolled in Medicaid and the rest in private health plans, according to figures released by the governor’s office . . . .”[20]Of the estimated 640,000 Kentuckians covered, 308,000 could become insured after expansion of the Medicaid eligibility guidelines in accordance with the ACA.[21] This number forecasts that many Kentuckians can seek once unobtainable medical care for untreated conditions stemming from smoking, cancer, preventable hospitalizations, heart disease, etc.[22]When Kentucky welcomed the ACA, however, officials may not have anticipated increasing HIPAA violations. Healthcare reform has allowed Kentuckians to seek healthcare with lower financial cost, but a potentially more significant one: possible loss of personal privacy with no compensation. According to the HHS, “[a]s of December 31, 2013, [the Office of Civil Rights] had 258 open complaints and compliance reviews” for HIPAA violations.[23] While this is a national statistic, one can only imagine the increase in complaints upon adoption of the ACA within Kentucky. Each of the 258 disclosures represents a person, who if he or she lived in Kentucky, would have no private cause of action to recover despite federal legislation.
C. HIPAA Governs Personal Health Information Leaks
Congress enacted HIPAA on August 21, 1996.[24] HIPAA’s main purpose is to encourage uniform standards and requirements for storing protected health information (hereinafter “PHI”) and to reduce clerical burdens on all involved parties.[25] Accordingly, those who maintain PHIs adopt “administrative, technical, and physical safeguards . . . to ensure the integrity and confidentiality of the information, to protect against any reasonably anticipated threats or hazards to the security or integrity of the information and unauthorized uses or disclosures of the information, and otherwise to ensure compliance with this part by the officers and employees of such person.”[26]HIPAA forms are the norm in all offices handling PHI because legislation covers health care providers, health care clearing houses, and health plans (all considered “covered entities”).[27] In 2009, the Health Information Technology for Economic and Clinical Health Act[28] (hereinafter “HITECH”) required modification and strengthening of the HIPAA’s rules by mandating the inclusion of business associates[29] in conjunction with covered entities. HITECH also added levels of culpability for PHI violations.[30]A covered entity breaches HIPAA when it discloses PHI without permission or for an inappropriate purpose.[31] This violation does not have to be intentional, but instead may be inadvertent.[32] In order to seek redress for a suspected HIPPA violation, an individual must file a complaint with the Secretary of the HHS.[33] The OCR, a subdivision under the HHS, manages and investigates violation complaints or suspicion of HIPAA violations.[34] After a covered entity violates HIPAA, the OCR allows a time frame in which the covered entity may take a “satisfactory” action to correct the breach and mitigate the damages.[35] If corrective action is taken, the OCR will simply fine the covered entity via civil penalties,[36] and if the violation is criminal in nature, the OCR may instruct the Department of Justice to investigate.[37]When civil monetary damages are sought for HIPAA violations, complainants or aggrieved persons themselves do not receive money compensation.[38] Instead, recoveries are deposited into the U.S. Treasury to further assist HIPAA investigations.[39] The aggrieved person merely receives notifications regarding the resolution of the violations.[40] While HIPAA clearly defines what constitutes a violation, the Act omits any express private cause of action for individuals to seek compensation for the dissemination of their PHI.[41] Consequently, complainants are merely left with filing a complaint to the OCR, with few states providing additional redress.[42]
II. Case Law: Few State Causes of Action for HIPAA Violations
HIPAA violations have increased throughout the years, but aggrieved persons are left with no federal remedies because HIPAA does not generate a private cause of action.[43] Some states, however, allow recovery in state court via common law tort claims and/or statutory recoveries.[44] States such as West Virginia recognize both, whereas Kentucky recognizes neither.[45]
A. Aggrieved Persons Harmed by HIPAA Violations Cannot Recover in Federal Court
The Supreme Court iterated in 1979 that despite a person violating a federal statute and harming another individual, a violation does not automatically prompt a private cause of action.[46] As a result, harmed persons do not individually benefit from HIPAA protections.[47] In fact, the Supreme Court in 2001 stated that HIPAA will never provide a cause of action for wronged individuals unless amended with the intent to establish that right.[48] This results in summary judgment for the defendant covered entity,[49] and the OCR provides the singular remedy.[50]
B. States Allowing HIPAA Violations to Establish the Standard of Care in Tort Claims
Recently few states have allowed HIPAA guidelines to provide the standard of care for common law claims in state court litigation. In these jurisdictions, HIPAA rules supply the baseline for what a medical professional should do regarding privacy and security of PHI in negligence claims. This allows plaintiffs to claim that the covered entity was negligent according to the statutory regulations of HIPAA without need for expert testimony, establishing negligence per se.[51] A negligence per se claim statutorily establishes the standard of care[52] and permits aggrieved individuals to recover tort damages where no compensatory remedy is available through the OCR.[53] Additionally, this method allows plaintiffs to stand in court without immediately granting the defendant summary judgment.[54] The small number of state cases, indicates that this recovery has not yet picked up steam, but serves as a reminder that states surrounding Kentucky have implemented repercussions for breaches of HIPAA whether through negligence per se or other common law torts.[55]
C. State Statutory Recoveries for HIPAA Violations
Apart from common law tort claims, fourteen states have created a statutory cause of action for HIPAA violations.[56] For example, West Virginia is a model state to explore the effect of both common law and statutory recoveries for HIPAA violations,[57] and will provide the exemplars for this discussion.[58] The West Virginia statute was enacted in 1983,[59] and the state’s highest court further elaborated on this statute by reaffirming a patient’s ongoing right to sue over a HIPAA violation because both a well-recognized common law and statutory right existed under state law.[60] As a result, these states[61] protect privacy by allowing individuals a private cause of action as long as the statute mandates more privacy provisions than HIPAA to avoid federal preemption issues. HIPAA contains a preemption provision mandating that HIPAA supersede any contrary provision of state law.[62] Some courts have grappled with the idea of HIPAA preemption if the states were to create common law or statutory causes of action.West Virginia’s highest court has led the way in litigation and explanation of HIPAA preemption, iterating that HIPPA does not preempt state statutory causes of action for the wrongful disclosure of PHI.[63] In order for HIPAA to preempt any state statute, the state law must be contrary to HIPAA.[64] A law is not contrary if the state law is more stringent than a HIPAA standard, requirement, or implementation.[65] In R.K. v. St. Mary’s Medical Center, Inc., the West Virginia court held “such state-law claims compliment [sic] HIPAA by enhancing the penalties for its violation and thereby encouraging HIPAA compliance.”[66] The plaintiff, R.K., filed state law claims after disclosing otherwise-undisclosed personal information to hospital employees in order to seek treatment.[67] While hospitalized, hospital employees accessed R.K.’s record without permission and relayed PHI to his estranged wife and her divorce lawyer.[68] R.K. initiated state law claims including, but not limited to, breach of confidentiality and invasion of privacy.[69]While the circuit court stated HIPAA preempted these claims, [70] the higher court disagreed, analyzing Yath v. Fairview Clinics, N.P.,[71] involving a state statutory cause of action. Here, the defendant’s clinic tested the plaintiff, Yath, for a sexually-transmitted disease.[72] A clinic assistant accessed his records and disclosed the information to Yath’s husband. Yath sued for wrongful disclosure of medical information in violation of the Minnesota statute by improperly releasing PHI.[73] While lower courts determined HIPAA preempted the state statute, the Minnesota Court of Appeals held that the statute was not preempted because it is not “contrary” to HIPAA.[74] The defendants could comply with both HIPAA and the statute since both laws are “complementary,” not “contradictory” as the laws obtained the same goal of safeguarding patient PHI.[75] The West Virginia Supreme Court of Appeals elaborates that though the remedies in Minnesota Statute § 144.335 and HIPAA are not identical, [76] the differences are merely functional. [77] Both statutes primarily prohibit mishandling of PHI, but HIPAA focuses on criminal liability and civil fines while § 144.335 permits compensatory damages. As such, states like West Virginia allow HIPAA to establish the privacy protection floor, and states may enforce more stringent laws without preemption.As a result, states like West Virginia approve both complementary statutory and common law claims for HIPAA breaches. At the end of the day, however, each individual state must make this decision. “Raising up causes of action where a statute has not created them may be a proper function for common-law courts, but not for federal tribunals.”[78]
D. Kentucky Does Not Recognize a State Common Law or Statutory Cause of Action for HIPAA Violations
Kentucky has yet to recognize any common law private cause of action for HIPAA violations using HIPAA regulations as the standard of care.[79] Alternatively, Kentucky appears to statutorily provide recovery for individuals injured by violations of any statute via KRS § 446.070.[80] This statute allows an aggrieved party to recover for a violation of another statute if that particular statute provides no civil remedy, and the aggrieved person is within the class of persons the statute is meant to protect.[81]In Yeager v. Dickerson, the court addresses whether the plaintiff has a cause of action via KRS § 446.070 against her attorneys for disclosure of medical information.[82] Yeager, executrix of her daughter’s estate, alleged a violation of HIPAA when her daughter died from a drug overdose after release of her PHI at her child’s custody hearing.[83] Because Congress has not expressly intended a private right under HIPAA, the Kentucky Court of Appeals held that KRS § 446.070 does not confer a private civil remedy for such violations.[84] According to the court, the “any statute” language appearing in KRS § 446.070 is limited to state statutes only and exempts federal statutes in which Congress has not intended a remedy to be conferred.[85] The court further stated that even if the General Assembly had intended a right under the state statute where Congress had not, HIPAA would preempt Kentucky state law.[86] The court also has not recognized any common law tort claims for plaintiffs since the claims are grounded in HIPPA.[87] This leaves Kentuckians wondering what rights they can exercise after a HIPAA violation occurs.
III. Solution: Kentucky Should Implement a State Statutory Cause of Action for HIPAA Violations
As it exists, Kentucky provides no private cause of action through KRS § 446.070 for persons harmed by PHI disclosure.[88] This legislative void can only be fully remedied by the Kentucky Legislature enacting a statute specifically allowing a private cause of action for HIPAA violations. For guidance, Kentucky should look to neighboring states, particularly West Virginia, due to similarities between the two states’ medical landscapes. Although Kentucky is more populous and has had different jurisprudence on the subject than West Virginia, these should not stand in the way of Kentucky’s recognition of privacy rights.
A. Proposed Legislation for Recovery under a Kentucky State Statute
Private litigation on a federal scale might overwhelm the effectiveness of HIPAA, but other states have taken charge of regulating medical privacy. In fact, prior to HIPAA, states were the primary regulators of privacy concerns via the common law, statutes, and regulations.[89] The Yeager Court rationalized correctly that even if a private right of action existed, it would be preempted.[90] This is accurate because HIPAA establishes the floor for privacy protection and Kentucky has not yet expanded it further.[91] To circumvent preemption and better protect Kentuckians, legislators must be willing to enact “strong health privacy laws”[92] to redress those harmed.Even after HIPAA’s adoption, HHS explained, “[w]e believed then, and still believe, that there is an urgent need for legislation to establish comprehensive privacy standards for all those who pay and provide for health care, and those who receive information from them.”[93] This concept illuminates the idea that all fifty states should enact legislation to heighten privacy laws to better protect citizens rather than wholly relying on HIPAA to restore justice to aggrieved plaintiffs.[94]This is an alarming problem after the ACA because persons may already distrust the healthcare system due to previously limited access.[95] By enacting a state statutory provision in which KRS § 446.070 will allow recovery, rural Kentuckians may be more apt to trust and seek out healthcare they once could not afford. These persons must not live in fear of Kentucky forgoing individual privacy protection because redress is unavailable.While Kentucky courts have rebuked a private cause of action,[96] implementing a state statute would allow the courts to analyze it as a matter of first impression and partake in shaping the common law associated with the statute. Kentucky can look to West Virginia, its neighbor, for guidance since West Virginia implemented higher safeguards to protect its residents.[97] Little case law exists in Kentucky and West Virginia regarding state rights of action for HIPAA violations. However, in the available case law, Kentucky and West Virginia rationalize the subject comparably.[98] In fact, the only difference between the two states is solely the existing precedent, as the two states have strikingly similar medical landscapes. Precedent is the only barrier that stands between Kentucky and a state private cause of action—a barrier that the ACA will inevitably break down.
B. Comparison: The Kentucky and West Virginia Courts Rationalize Similarly
In Kentucky, Yeager held that the state statute regarding privacy for health care recipients did not confer a private right of action for HIPAA violations.[99] Authority in neighboring West Virginia from the Supreme Court of Appeals, however, is contrary to the Kentucky holding.[100] The courts’ rationale is quite similar, but the respective precedent is distinctive: West Virginia reaffirmed a patient’s ongoing right to sue where Kentucky has not yet initially recognized a patient’s right to sue.First, both courts recognize that HIPAA does not create a federal private right of action for aggrieved persons.[101] Second, neither Kentucky nor West Virginia specifically held that HIPAA preempts a state from recognizing a cause of action for disclosure of PHI.[102] Instead, the courts address whether HIPAA preempts particular statutes. As discussed in West Virginia, HIPAA would preempt state law, including statutory and common law, only if the state law would disallow compliance with both state and federal requirements or if the state law is contrary[103] and stands as an obstacle to HIPAA’s execution.[104]If the courts have already rationalized similarly, Kentucky should consider consulting other jurisdictions in at least allowing a statutory right of recovery in combination with KRS § 446.070 for aggrieved individuals. Preemption would also not be an obstacle, despite Kentucky courts’ rationale, because it is entirely possible for both the OCR to enforce HIPAA through civil and criminal fines and Kentucky to recognize a private cause of action focusing on individual recovery. Both proceedings could occur autonomously without affecting the other. Further, a state right of action would complement HIPAA’s floor by assisting and strengthening incentives to protect PHI with the expansion of the ACA.As one court stated, “[i]t is, to say the least, difficult to believe that Congress would, without comment, remove all means of judicial recourse for those injured by illegal conduct.”[105] While Kentucky has already taken strides to protect its own residents through adoption of the first state-based exchange for the ACA, it has fallen behind West Virginia and other states that have recognized a common law cause of action and others with statutory causes of action due to the toothless fear of preemption and outdated precedent in the time of the ACA.
C. Comparison: Kentucky and West Virginia have Comparable Medical Landscapes
Similar medical landscapes are important when advocating for one state government to adopt another’s remedies. This section statistically compares West Virginia and Kentucky to illustrate few differences exist between them. Kentucky conclusively has more uninsured individuals and more Medicaid recipients yet has no state cause of action like West Virginia. These statistics support Kentucky adopting West Virginia’s approach to redressing breaches.The implementation of the ACA has the potential to extend coverage to as many as 285,931 uninsured West Virginians.[106] West Virginia’s estimated 2013 population was 1,854,304, with 714,605 of those individuals living in rural areas.[107] Through the ACA Marketplace, 42% of adults (about 112,000) and 11% of children (roughly 30,000) will receive Medicaid, 23% of individuals will be eligible for tax credits (62,000), and 23% may gain coverage without financial assistance.[108] Of those uninsured individuals eligible for coverage, 259,000 (91%) are White, 16,461 (6%) are African-American, 2,850 (1%) are Latino or Hispanic, and 1,208 (0.4%) are Asian American or Pacific Islander.[109] At least 799,000 non-elderly individuals, including 91,098 children, have pre-existing health conditions who may now receive healthcare because of the ACA.[110]In comparison, Kentucky, with 647,000 uninsured, was the first state to adopt a state-based exchange for the ACA.[111] As of 2013, Kentucky had an estimated population of 4,395,295, of which 1,837,294 living in rural areas.[112] Through the ACA Marketplace, 45% of adults (about 291,000) and 9% of children (roughly 59,000) will receive Medicaid, 22% of individuals will be eligible for tax credits (145,000), and 24% may gain coverage without financial assistance.[113] Of those uninsured individuals eligible for coverage, 513,688 (83%) are White, 77,280 (12%) are African American, 18,272 (3%) are Latino or Hispanic, and 4,158 (1%) are Asian American or Pacific Islander.[114] At least 1,894,874 non-elderly Kentuckians, including 241,403 children, have pre-existing conditions.[115]The above statistics illuminate that Kentucky has more individuals, more uninsured, and a greater number of Medicaid expansion recipients than West Virginia. Both have high rural populations where poverty can be a perpetual cycle and healthcare a commodity. The majority of uninsured are Caucasian, suggesting this is not a racial discrepancy, but rather a rampant, non-discriminatory issue. This prompts the question why Kentucky has not led the way in protecting Kentuckians from privacy violations like its very similar neighbor, West Virginia? After West Virginia’s adoption of both a common law and statutory cause of action protecting its citizens, Kentucky has few arguments for first implementing the ACA yet refusing to fully protect Kentuckians from HIPAA violations that may increase due to the state’s adoption of the ACA.
IV. Conclusion
While Kentucky is an advocate for providing healthcare via the ACA, Kentucky continues to ignore each person’s individual privacy rights within the medical sphere by providing no redress to Kentuckians hurt by PHI disclosures. As a result, Kentucky lacks the self-interest to fully protect its citizens because citizens desire redress when Kentucky recognizes no right. Neighboring state courts have begun utilizing HIPAA as evidence of the standard of care for other common law torts while others allow statutory causes of actions for HIPAA violations. Kentucky offers neither. This note advocates for Kentucky to implement legislation to strengthen HIPAA regulations by allowing a state private cause of action for Kentuckians hurt or affected by PHI disclosures. Kentucky should look to other states with private causes of action, such as West Virginia, for guidance. This private cause of action will more uniformly protect and guarantee Kentuckians’ privacy via state redress.
[1] J.D., May 2015, University of Kentucky College of Law.
[2] See Mary Branham, State Success & Federal Missteps, The Council of State Governments, http://www.csg.org/pubs/capitolideas/2014_jan_feb/healthcareexchanges.aspx (last visited Jan. 19, 2014). For information regarding the exchange, see Patient Protection and Affordable Care Act (ACA), Pub. L. No. 111-148, 124 Stat. 119 (2010).
[3] Steve Beshear, My State Needs ObamaCare. Now., Ny Times (Sept. 26, 2013), http://www.nytimes.com/2013/09/27/opinion/my-state-needs-obamacare-now.html.
[4] Health Insurance Portability and Accountability Act (HIPAA), Pub. L. No. 104-191, 110 Stat. 1936 (codified as scattered sections of 18, 26, 29, 42 U.S.C. (2000)).
[5] McMillen v. Ky. Dep’t. of Corr., 233 S.W.3d 203, 205 (Ky. Ct. App. 2007).
[6] Young v. Carran, 289 S.W.3d 586, 589 (Ky. Ct. App. 2008) (articulating Kentucky’s lack of common law or statutory private cause of action for HIPAA violations).
[7] See Ky. Rev. Stat. Ann. § 446.070 (2013); T & M Jewelry, Inc. v. Hicks ex rel. Hicks, 189 S.W.3d 526, 530 (Ky. 2006); Alderman v. Bradley, 957 S.W.2d 264, 266-67 (Ky. 1997); Yeager v. Dickerson, 391 S.W.3d 388, 393 (Ky. Ct. App. 2013).
[8] See Alexander v. Sandoval, 532 U.S. 275, 275 (2001) (holding that there is no private right of action to enforce disparate-impact regulations promulgated under Title VI of Civil Rights Act of 1964.”); Acara v. Banks, 470 F.3d 569, 571 (5th Cir. 2006) (holding no private cause of action for disclosure of PHI during a deposition); Johnson v. Quander, 370 F. Supp. 2d 79, 100 (D.D.C. 2005) (holding that a convicted robber had no private cause of action under HIPAA when challenging the DNA Act because the Secretary of HHS only had that right); Univ. of Colo. Hosp. v. Denver Pub. Co., 340 F. Supp. 2d 1142, 1145 (D. Colo. 2004) (finding no HIPAA private cause of action because the statute created enforcement means for aggrieved persons); O'Donnell v. Blue Cross Blue Shield of Wyo., 173 F. Supp. 2d 1176, 1179-80 (D. Wyo. 2001) (holding no express or implied private cause of action exists in HIPAA).
[9] Yeager, 391 S.W.3d at 394.
[10] Bob Herman, HIPAA May Form Basis for State Law Private Cause of Action, Becker’s Hosp. Review (June 24, 2011), http://www.beckershospitalreview.com/healthcare-information-technology/hipaa-may-form-basis-for-state-law-private-cause-of-action.html.
[11] Beshear, supra note 2.
[12] See supra notes 18-23 and accompanying text.
[13] About the Law, U.S. Dep’t of Health and Human Serv., http://www.hhs.gov/healthcare/rights/ (last visited Jan. 20, 2014).
[14] Individual Health Insurance Coverage, AHIP Coverage (Oct. 12, 2010), http://www.ahipcoverage.com/2010/10/12/individual-health-insurance-coverage/; Small Business Health Care Tax Credit for Small Employers, IRS (Dec. 19, 2013), http://www.irs.gov/uac/Small-Business-Health-Care-Tax-Credit-for-Small-Employers.
[15] While tax reimbursement participants will also comprise a large number of individuals the ACA will help, this paper will primarily focus on Medicaid recipients as this individuals are most likely gaining access for the first time.
[16] Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2575, (2012); Key Features of the Affordable Care Act by Year, U.S. Dep’t of Health and Human Serv., http://www.hhs.gov/healthcare/facts/timeline/timeline-text.html (last visited Jan. 20, 2014).
[17] See The Affordable Care Act-What It Means in Rural America, U.S. Dep’t of Health and Human Serv., http://www.hhs.gov/healthcare/facts/factsheets/2013/09/rural09202013.html (last visited Jan. 20, 2014).
[18] A Healthier Kentucky: Health Insurance Coverage for Every Kentuckian, Governor of Kentucky Steve Beshear, http://governor.ky.gov/healthierky/Pages/default.aspx (last visited Jan. 20, 2014) [hereinafter A Healthier Kentucky].
[19] Id.
[20] Stephanie McCrummen, In Rural Kentucky, Health-Care Debate Takes Back Seat as the Long-Uninsured Line Up, The Washington Post, (Nov. 23, 2013), http://www.washingtonpost.com/national/in-rural-kentucky-health-care-debate-takes-back-seat-as-people-sign-up-for-insurance/2013/11/23/449dc6e0-5465-11e3-9e2c-e1d01116fd98_story.html. Furthermore, as of March 20, 2014, 321,932 Kentuckians had enrolled through Kynect and 257,477 of these individuals qualified under the Medicaid expansion. More than 321,000 Now Enrolled Through Kynect as March 31 Deadline Approaches, Kentucky.gov (Mar. 21, 2014), http://kentucky.gov/Pages/Activity-Stream.aspx?viewMode=ViewDetailInNewPage&eventID=&activityType=PressRelease.
[21] Beshear, supra note 2.
[22] Id. (“[Kentucky] ranks among the worst, if not the worst, in almost every major health category, including smoking, cancer deaths, preventable hospitalizations, premature death, heart disease and diabetes.”).
[23] Enforcement Highlights, U.S. Dep’t of Health and Human Serv. (Dec. 31, 2013), http://www.hhs.gov/ocr/privacy/hipaa/enforcement/highlights/12312013.html.
[24] HIPAA, Pub. L. No. 104-191, 110 Stat. 1936 (codified as scattered sections of 18, 26, 29, 42 U.S.C. (2000)).
[25] See id. § 261.
[26] 42 U.S.C. § 1320d-2(d)(2)(A-C) (2014).
[27] See 45 C.F.R. § 160.103(4)(iv)(1-3) (2014).
[28] American Recovery and Reinvestment Act of 2009 (ARRA), Pub. L. No. 111-5, 123 Stat. 226 (Feb. 17, 2009), codified at 42 U.S.C. §§300jj et seq.; §17901 et seq.
[29] Business associate: (1) Except as provided in paragraph (4) of this definition, business associate means, with respect to a covered entity, a person who: (i) On behalf of such covered entity or of an organized health care arrangement (as defined in § 164.501 of this subchapter) in which the covered entity participates, but other than in the capacity of a member of the workforce of such covered entity or arrangement, performs, or assists in the performance of: (A) a function or activity regulated by this subchapter, including claims processing or administration, data analysis, processing or administration, utilization review, quality assurance, patient safety activities listed at 42 CFR 3.20, billing, benefit management, practice management, and repricing; or (B) Any other function or activity regulated by this subchapter; or (ii) Provides, other than in the capacity of a member of the workforce of such covered entity, legal, actuarial, accounting, consulting, data aggregation (as defined in § 164.501 of this subchapter), management, administrative, accreditation, or financial services to or for such covered entity, or to or for an organized health care arrangement in which the covered entity participates, where the provision of the service involves the disclosure of protected health information from such covered entity or arrangement, or from another business associate of such covered entity or arrangement, to the person. 45 C.F.R. § 160.103(1)(i-ii) (2014).
[30] It also expanded the maximum fine to $50,000 per violation depending on the culpability level, capping maximum amounts for repeated offenses at $1,500,000 per year for aggregate violations. See HIPAA Enforcement after the Recovery Act, Hall, Render, Killian, Heath & Lyman (March 30, 2009), http://www.hallrender.com/library/articles/1085/033009___Enforcement_after_the_Recovery_Act.pdf. However, HIPAA allows an exception to fines if the violation was due to reasonable cause. 42 USC § 1320d-5(a)(1)(B) (2014). HITECH also proposed allowing individuals to share a percentage of recovery or settlement; HHS had until 2012 to issue the regulation, but this does not appear to have occurred yet. Chris Dimick, HIPAA Violation? Sue me, J. of AHIMA (Mar. 1, 2011), http://journal.ahima.org/2011/03/01/hipaa-violation-sue-me/.
[31] See 45 C.F.R. § 164.502(a) (2014) (explaining general rules on violations and permitted uses of PHI). A “breach” is defined by HHS as “an impermissible use or disclosure under the Privacy Rule that compromises the security or privacy of the protected health information.” Breach Notification Rule, U.S. Dep’t of Health and Human Serv., http://www.hhs.gov/ocr/privacy/hipaa/administrative/breachnotificationrule/index.html (last visited Mar. 19, 2014).
[32] See, e.g., 42 U.S.C. § 1320d-5(a)(1)(A), (B) (2014).
[33] How OCR Enforces the HIPAA Privacy & Security Rules, U.S. Dep’t of Health and Human Serv., http://www.hhs.gov/ocr/privacy/hipaa/enforcement/process/howocrenforces.html (last visited Jan. 17, 2014) [hereinafter How OCR Enforces].
[34] See 42 U.S.C. § 1320d-5(c)(2) (2014); How OCR Enforces, supra note 32.
[35] How OCR Enforces, supra note 32.
[36] 42 U.S.C. § 1320d-5(a)(2)-(3) (2014).
[37] Id. § 1320d-6; How OCR Enforces, supra note 32.
[38] How OCR Enforces, supra note 32.
[39] Id.
[40] Id. Further, in 2012, HHS reported that 10,454 individuals filed complaints to the OCR, indicating that complaints are not at a minimum. See Health Information Privacy Complaints Received by Calendar Year, U.S. Dep’t of Health and Human Serv., http://www.hhs.gov/ocr/privacy/hipaa/enforcement/data/complaintsyear.html (last visited Jan. 17, 2014) [hereinafter Privacy Complaints] (providing a bar graph to show increasing numbers of HIPAA complaints each year).
[41] Instead, Congress limited enforcement to the Secretary of Health and Human Services, which indicates it did not intend to create private rights of action in individuals aggrieved by HIPAA breaches. Social Security Act, § 1171, 42 U.S.C. § 1320d); Acara v. Banks, 470 F.3d 569, 571 (5th Cir. 2006).
[42] After the HITECH expansion, state attorney generals are now allowed to bring civil damage claims against entities that breach HIPAA, but this does not affect an individual’s right to sue. Dimick, supra note 29. Even then, the attorney generals may be overwhelmed as well and only choose to take the most devastating and detrimental cases.
[43] See, e.g., Acara, 470 F.3d at 569.
[44] See infra Sections II.B-C.
[45] See Individual Right of Action for Medical Records Access: 50 State Comparison, Robert Wood Johnson Found. (Jan. 20, 2014), http://www.healthinfolaw.org/comparative-analysis/individual-right-action-medical-records-access-50-state-comparison [hereinafter 50 State Comparison].
[46] Touche Ross & Co. v. Redington, 442 U.S. 560, 568 (1979) (citation omitted).
[47] See Alexander v. Sandoval, 532 U.S. 275, 275 (2001) (holding that there is no private right of action to enforce disparate-impact regulations promulgated under Title VI of Civil Rights Act of 1964.”); Acara, 470 F.3d at 570 (holding no private cause of action for disclosure of PHI during a deposition); Johnson v. Quander, 370 F. Supp. 2d 79, 100 (D.D.C. 2005) (holding that a convicted robber had no private cause of action under HIPAA when challenging the DNA Act because the Secretary of HHS only had that right); Univ. of Colo. Hosp. v. Denver Pub. Co., 340 F. Supp. 2d 1142, 1145 (D. Colo. 2004) (finding no HIPAA private cause of action because the statute created enforcement means for aggrieved persons); O'Donnell v. Blue Cross Blue Shield of Wyo., 173 F. Supp. 2d 1176, 1179-80 (D. Wyo. 2001) (holding no express or implied private cause of action exists in HIPAA).
[48] Alexander, 532 U.S. at 286-87 ("Without [statutory intent], a cause of action does not exist and courts may not create one, no matter how desirable that might be as a policy matter, or how compatible with the statute.").
[49] See Acara, 470 F.3d at 572.
[50] HIPAA enforcement has consistently been at a minimum. For example, between 2003 and 2011, the OCR received over 25,000 complaints, but only imposed a formal civil fine in one of these cases. The OCR settled six of these cases. HHS referred 495 cases to the Department of Justice, resulting in only sixteen prosecutions. Rachel Grunberger, Senate Hearings Focus on Lack of HIPAA Enforcement, Final HITECH Rule, Inside Privacy (Dec. 22, 2011), http://www.insideprivacy.com/senate-hearings-focus-on-lack-of-hipaa-enforcement-final-hitech-rule/.
[51] See, e.g., Byrne v. Avery Ctr. for Obstetrics & Gynecology, P.C., 102 A.3d 32, 42 (Conn. Super. Ct. 2014) (holding HIPAA may be used as the standard of care for a negligence claim and HIPAA does not preempt this type of claim); Doe 1631 v. Quest Diagnostics, Inc., 395 S.W.3d 8, 18-19 (Mo. 2013) (allowing a breach of fiduciary claim against defendant after its phlebotomist faxed HIV results without the patient’s permission); R.K. v. St. Mary's Med. Ctr., Inc., 735 S.E.2d 715, 723 (W. Va. 2012) (holding HIPAA may be used as the standard of care for a negligence claim); Sorensen v. Barbuto, 143 P.3d 295, 299 n.2 (Utah Ct. App. 2006) (holding plaintiff established an action for negligent breach of confidentiality by relying on standards within HIPAA); I.S. v. Washington Univ., No. 4:11CV235SNLJ, 2011 WL 2433585, at *2 (E.D. Mo. June 14, 2011) (“[T]he Court finds that Count III may stand as a state claim for negligence per se despite its exclusive reliance upon HIPAA.”); K.V. v. Women's Healthcare Network, LLC, 07-0228-CV-W-DW, 2007 WL 1655734, at *1 (W.D. Mo. June 6, 2007) (explaining that the negligence per se claim based on HIPAA violation was a state-law claim); Acosta v. Byrum, 638 S.E.2d 246, 253 (N.C. Ct. App. 2006) (allowing plaintiff to reference HIPAA as baseline evidence of appropriate medical standard of care needed as an element of negligence); Harmon v. Maury Cnty., Tenn., No. 1:05 CV 0026, 2005 WL 2133697, at *3 (M.D. Tenn. Aug. 31, 2005).
[52] Young v. Carran, 289 S.W.3d 586, 588-89 (Ky. Ct. App. 2008) (citation omitted).
[53] State supreme courts wrote two of these notable decisions, demonstrating that at least two states’ highest courts have recognized HIPAA as proof of the standard of care for common law tort claims. See, e.g., Sorensen, 143 P.3d at 299 n.2; R.K., 735 S.E.2d at 723.
[54] It appears that plaintiffs must still prove damages proximately caused by the defendant’s actions, and damages must be legally cognizable. See Alagia, Day, Trautwein & Smith v. Broadbent, 882 S.W.2d 121, 126 (Ky. 1994).
[55] For example, Ohio’s Supreme Court in 1999 held that “an independent tort exists for the unauthorized, unprivileged disclosure to a third party of nonpublic medical information that a physician or hospital has learned within a physician-patient relationship" and "a third party can be held liable for inducing the unauthorized, unprivileged disclosure.” Biddle v. Warren Gen. Hosp., 715 N.E.2d 518, 523, 528 (Ohio 1999). This tort only applied to the confidential relationship between the physician and the patient, however. Recognizing the shortcomings of this tort and the growing problem of inadvertent disclosure with other entities before HITECH, the same court created a separate tort solely related to medical records that applies to a broader range of persons not limited to physicians. See Hageman v. Sw. Gen. Health Ctr., 893 N.E.2d 153, 157-58 (Ohio 2008).
[56] See 50 State Comparison, supra note 44 (illustrating California, Delaware, Illinois, Louisiana, Maryland, Massachusetts, Montana, New Hampshire, New York, Tennessee, Washington, West Virginia, Wisconsin, and Wyoming have private causes of action).
[57] See R.K., 735 S.E.2d at 715.
[58] See infra notes 83-109 and accompanying text (explaining the similarities between West Virginia and Kentucky).
[59] The statute explains that “[t]he provisions of this article may be enforced by a patient, authorized agent or authorized representative, and any health care provider found to be in violation of this article shall pay any attorney fees and costs, including court costs incurred in the course of such enforcement.” W. Va. Code § 16-29-1(d) (2011 & Supp. 2014); W. Va. Code § 29B-1-6 (2012) (“Any custodian of any public records who willfully violates the provisions of this article is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than two hundred dollars nor more than one thousand dollars, or be imprisoned in the county jail for not more than twenty days, or, in the discretion of the court, by both fine and imprisonment.”).
[60] See R.K., 735 S.E.2d at 724.
[61] See 50 State Comparison, supra note 44.[62] 42 U.S.C. § 1320d-7 (2014), which states in part: (1) General rule, Except as provided in paragraph (2), a provision or requirement under this part, or a standard or implementation specification adopted or established under sections 1320d-1 through 1320d-3 of this title, shall supersede any contrary provision of State law, including a provision of State law that requires medical or health plan records (including billing information) to be maintained or transmitted in written rather than electronic form. (2) Exceptions, A provision or requirement under this part, or a standard or implementation specification adopted or established under sections 1320d-1 through 1320d-3 of this title, shall not supersede a contrary provision of State law, if the provision of State law... (B) subject to section 264(c)(2) of the Health Insurance Portability and Accountability Act of 1996 [42 USCS § 1320d-2 note], relates to the privacy of individually identifiable health information (emphasis added).
[63] See R.K., 735 S.E.2d at 724.
[64] See 45 C.F.R. § 160.203(a) (2014).
[65] See id. § 160.203(b).
[66] R.K., 735 S.E.2d at 724.
[67] Id. at 717.
[68] Id.
[69] Id. at 718 (iterating claims for outrageous conduct, intentional infliction of emotional distress, negligent infliction of emotional distress, negligent entrustment, breach of confidentiality, invasion of privacy, and punitive damages).
[70] Id. at 719.
[71] 767 N.W.2d 34 (Minn. Ct. App. 2009).
[72] Id. at 38.
[73] Minn. Stat. § 144.335 (2006) (repealed 2007), available at https://www.revisor.mn.gov/statutes/?year=2006&id=144.335 (providing for a private cause of action for the wrongful disclosure of an individual’s medical records); Yath v. Fairview Clinics, 767 N.W.2d 34, 39 (Minn. Ct. App. 2009).
[74] 45 C.F.R § 160.202 (2014); R.K. v. St. Mary's Med. Ctr., Inc., 735 S.E.2d 715, 721 (W. Va. 2012) (“Just because a distinction exists does not make [a state statute] ‘contrary’ to HIPAA. A state law is ‘contrary’ to HIPAA if a health care provider ‘would find it impossible to comply with both the State and federal requirements’ or if the state law is ‘an obstacle to the accomplishment and execution of the full purposes’ of HIPAA.’”).
[75] R.K., 735 S.E.2d at 722-23 (“The stated purpose of HIPAA is to improve the Medicare and Medicaid programs and ‘the efficiency and effectiveness of the health care system, by encouraging the development of a health information system through the establishment of standards and requirements for the electronic transmission of certain health information.’ . . . Rather than creating an ‘obstacle’ to HIPAA, [Minn. Stat. § 144.334] supports at least one of HIPAA’s goals by establishing another disincentive to wrongfully disclose a patient’s health care record.”).
[76] See 45 U.S.C. §1320d-5 (2014) (imposing criminal penalties); Minn. Stat. § 144.335(3a(e)) (2006) (imposing compensatory damages in a civil action).
[77] See R.K., 735 S.E.2d at 722 (“The difference in remedy is functional only, in that a HIPAA violation subjects a person to criminal penalties.”).
[78] Lampf v. Gilbertson, 501 U.S. 350, 365 (1991) (Scalia, J., concurring in part and concurring in judgment).
[79] See, e.g., Young v. Carran, 289 S.W.3d 586, 589 (Ky. Ct. App. 2008).
[80] See Ky. Rev. Stat. Ann. § 446.070 (2013).
[81] See Yeager v. Dickerson, 391 S.W.3d 388, 393 (Ky. Ct. App. 2013).
[82] Id. at 390.
[83] Id. at 391.
[84] Id. at 394.
[85] Id. “[T]he General Assembly did not intend [KRS § 466.070] ‘to embrace the whole of federal laws and the laws of other states and thereby confer a private civil remedy for such a vast array of violations.’” (citation omitted).
[86] Id.
[87] 50 State Comparison, supra note 44 (utilizing a nationwide map to explain Kentucky has not allowed tort claims).
[88] See supra notes 78-86 and accompanying text.
[89] See Joy L. Pritts, Altered States: State Health Privacy Laws and the Impact of the Federal Health Privacy Rule, 2 Yale J. Health Pol’y L. & Ethics 327(2002) [hereinafter Altered States]. Further, “there is still room for states to protect their own citizens by retaining or enacting health privacy protections that mirror and improve upon those in the [federal legislation].” Id. at 328.
[90] See Yeager v. Dickerson, 391 S.W.3d 388, 394 (Ky. Ct. App. 2013).
[91] See generally id. at 388 (articulating no private recovery for plaintiffs in Kentucky).
[92] Altered States, supra note 88, at 345.
[93] Standards for Privacy of Individually Identifiable Health Information, 64 Fed. Reg. 59,923 (Nov. 3, 1999) (to be codified at 45 C.F.R. pts. 160-64).
[94] Altered States, supra note 88, at 347 (“This approach, endorsed by the Privacy Protection Study Commission in the 1970s, ensures that the states will be able to enforce the law and protect their citizens.”) (citing Personal Privacy in an Information Society: The Report of the Privacy Protection Study Commission, U.S. Privacy Prot. Study Comm’n 276-90 (July 1977), available at http://epic.org/privacy/ppsc1977report).
[95] As an example, distrust for the state was so extreme that some rural Kentuckians thought that enrolling in the state-health insurance coverage involved implanting microchips into their arms. McCrummen, supra note 19.
[96] See generally Yeager, 391 S.W.3d at 388 (illustrating Kentucky case law against a private cause of action).
[97] See supra section II.C (articulating West Virginia common law and statutory scheme allowing individuals rights of recovery for disclosures of PHI).
[98] See Yeager, 391 S.W.3d at 388; R.K. v. St. Mary's Med. Ctr., Inc., 735 S.E.2d 715 (W. Va. 2012).
[99] See Yeager, 391 S.W.3d. at 394.
[100] See R.K., 735 S.E.2d at 724.
[101] Id. at 718; Yeager, 391 S.W.3d at 393.
[102] See R.K., 735 S.E.2d at 721; Yeager, 391 S.W.3d at 394.
[103] See 45 C.F.R § 160.202-.203 (2013).
[104] See R.K., 735 S.E.2d at 721-24 (discussing HIPAA preempting contrary state laws and disallowing any laws impeding HIPAA enforcement).
[105] Wash. Mut. Bank v. Superior Court, 75 Cal. App. 4th 773, 783 (1999) (citation omitted).
[106] The Uninsured in West Virginia, Addiction Tech. Transfer Ctr. Network, http://attcnetwork.org/regcenters/generalContent.asp?rcid=2&content=PARTCUSTOM (last visited Jan 20, 2014) [hereinafter The Uninsured in West Virginia].
[107] Living in rural areas increased the possibilities of being uninsured. See West Virginia, Rural Assistance Ctr. (Dec. 29, 2014), http://www.raconline.org/states/west-virginia.
[108] See How Will the Uninsured in West Virginia Fare Under the Affordable Care Act?, Kaiser Family Found., http://kff.org/health-reform/fact-sheet/state-profiles-uninsured-under-aca-west-virginia/ (last visited Jan. 20, 2014); Interactive: A State-by-State Look at How the Uninsured Fare Under the ACA, Kaiser Family Found., http://kff.org/interactive/uninsured-gap/ (last visited Jan. 19, 2014) (hereinafter Interactive).
[109] The Uninsured in West Virginia, supra note 105.
[110] 5 Years Later: How the Affordable Care Act is Working for West Virginia, U.S. DEP’T OF HEALTH AND HUMAN SERV., http://www.hhs.gov/healthcare/facts/bystate/wv.html (last visited Jan. 20, 2014).
[111] How Will the Uninsured in Kentucky Fare Under the Affordable Care Act?, Kaiser Family Foundation, http://kff.org/health-reform/fact-sheet/state-profiles-uninsured-under-aca-kentucky/ (last visited Jan. 19, 2014) (hereinafter Kaiser Kentucky).
[112] Kentucky, Rural Assistance Ctr. (Sept. 12, 2014), http://www.raconline.org/states/kentucky.
[113] Kaiser Kentucky, supra note 110; Interactive, supra note 107.
[114] How the Health Care Law is Making a Difference for the People in Kentucky, KY and Appalachia Public Health Training Ctr., http://www.uky.edu/kaphtc/resources/policy-development-and-program-planning/how-health-care-law-making-difference-people (last visited Jan. 20, 2014).
[115] 5 Years Later: How the Affordable Care Act is Working for Kentucky, U.S. DEP’T OF HEALTH AND HUMAN SERV., http://www.hhs.gov/healthcare/facts/bystate/wv.html (last visited Jan. 20, 2014).
Who's Quashing Who?: The Battle Between Scholars and Subpoenas
Note | 102 KY. L. J. ONLINE 5 | Feb. 7, 2014
Julie RosingFN1
Introduction
Last year the First Circuit’s decision in United States v. Moloney, requiring two scholars from Boston College to forcibly disclose their confidential research, shocked the academic world.FN2 This high-profile subpoena case brought the idea of a “scholar’s privilege” to the forefront of the legal arena once again. The outcome of the case—the forcible disclosure and the denial of the scholar’s motion to quash – was not, by itself, all that surprising.FN3 But the vague, general lack of analysis on which the First Circuit denied the assertion of a “scholar’s privilege” was indeed both shocking and inappropriate. There are two questions that must be answered to clear up ambiguities in this hybrid problem of evidentiary and constitutional law. The first is whether a scholar’s privilege does or should exist. The second is if the scholar’s privilege does exist, how can the courts uniformly apply the privilege? This note advocates that the scholar’s privilege should exist as a qualified privilege. This note further advocates that the circuits should reject their current arbitrary use of the privilege and instead apply a balancing test that accounts for the interests of both the academics attempts to protect their research and the party seeking disclosure. Although the Supreme Court of the United States denied certiorari to United States v. Moloney, the issue of the scholar’s privilege will not fall by the wayside. The time has come for a definitive, specific ruling on the issue. We must find a better way for scholars and subpoenas to co-exist.FN4
I. The Existence and Evolution of the Scholar’s Privilege
The scholar’s privilege stems from the long-standing and hotly debated concept of a “reporter’s privilege.” The Supreme Court struck down this privilege in Branzburg v. Hayes.FN5[5] In 1972, Branzburg held that there is no absolute reporter’s privilege available under the First Amendment for reporters to refuse to answer questions or be subpoenaed in a grand jury proceeding. Circuit courts have split for years over the correct interpretation of Branzburg.FN6 Some circuits, such as the Sixth circuit, apply Branzburg’s holding rigidly, allowing absolutely no reporter’s privilege in any circumstance. In other circuits, like the Third Circuit, Branzburg does not control. The First Circuit has restricted the Supreme Court’s decision to its facts, implying that “[i]t seems a moot point now to argue that there is no reporter’s privilege in the federal courts.”FN7 But, the First Circuit has also developed a vague balancing test to determine applicability of the privilege. Several other circuits have adopted their own variations of balancing tests—but no uniform standard has been propounded beyond Branzburg. The circuit split is not surprising when considering that Branzburg’s holding did not command a majority. Even more notable is Justice Powell’s concurrence and the dissenting opinion, stating “express support for recognizing a qualified newsman’s privilege,” which further bolstered the privilege’s strength.FN8 From the uncertainty of the application of a reporter’s privilege sprang further uncertainty when scholars began challenging subpoenas in the research context. The scholar’s privilege has not been as frequently litigated as the reporter’s privilege until recently.FN9 These cases vary factually, and scholars have only succeeded in quashing subpoenas in a few, narrowly construed factual anomalies. The dilemma of the scholar’s privilege spans two legal subjects: evidentiary law and constitutional law. Critics of recognizing reporters’ and scholars’ privileges take the evidentiary angle. These critics argue that because the privileges are not included in the Federal Rules of Evidence, the Supreme Court has rejected their existence and therefore, their application.FN10 Proponents fight for “the constitutional guarantees of free expression, privacy, and defendant’s rights,” which they believe justifies recognition of a testimonial privilege to protect the researcher-subject relationship.FN11 Further, although many parallels can be drawn between the reporter’s privilege that was denied in Branzburg and the idea of a scholar’s privilege, there is also at least one notable difference—reporters may have an additional route for protection via reporter shield laws.FN12 Markedly, no states have legislated to protect the researcher in a similar manner as reporter shield laws. Therefore the scholar’s privilege is essentially the only protection that scholars may have. The First Circuit has been confronted with the scholar’s privilege on a number of occasions, most notably is the In re Cusumano v. Microsoft Corporation case. Cusumano held that interview information collected by two scholars for a book was privileged from discovery.FN13 Although a scholar’s privilege is admittedly created in this case, the holding remains narrow: “[i]t would be extravagant to read the case as establishing any broad ‘scholar’s privilege.’”FN14 Through this ruling, research is clearly proven to be a special endeavor, deserving protection by at least a qualified privilege.FN15 However, the First Amendment balancing test applied in this case leaves much ambiguity, leading critics to the conclusion that Cusumano may have been a fluke decision. The traditional balancing test that the First Circuit has adopted requires a court to “place those factors that relate to the movant’s needs for the information on one pan of the scales and those that reflect the objector’s interest in confidentiality and the potential injury to free flow of information that disclosure portends on the opposite pan.”FN16 Essentially the need for disclosure of the information is balanced with confidentiality and First Amendment guarantees. The factors to be used on both sides of the balancing test are not explicitly identified, creating room for varying interpretations and inconsistent decisions.
II. The Moloney Decision
Most recently, the First Circuit was again confronted with the issue of the scholar’s privilege and the incomplete balancing test in United States v. Moloney, when two researchers from Boston College were subpoenaed and required to disclose confidential interviews regarding their work on the Belfast Project.FN17 The Project consisted of taping oral interviews from recollections of members of the Provisional Irish Republican Army, the Provisional Sinn Fein, the Ulster Volunteer Force, and other paramilitary and political organizations involved in the "Troubles" in Northern Ireland from 1969 on. British authorities sought the interviews of Brendan Hughes and Dolours Price (former Irish Republican Army members) who were implicated in the 1971 abduction and execution of Jean McConville, a suspected British informant.FN18 The crux of the case lies in the fact that the Belfast Project scholars made explicit promises of confidentiality that the interview contents would be protected until the deaths of the interviewees. Since Hughes was dead at the time disclosure was requested, there were no problems with introducing his interview testimonial in court. The only issue was whether Price’s confidential testimonial could be disclosed because their confidentiality agreement had not ended at the time of the First Circuit decision. However, an interesting and surprising twist occurred while the case was wading in the uncertain cert-pool: Dolours Price was found dead in her home from an apparent drug overdose in January 2013. It is unclear as to whether this living vs. dead distinction affected the Supreme Court’s decision to deny certiorari in April. The application of the balancing test in Moloney is radically different than the application and outcome in Cusumano. First, the precedent from Cusumano deals with claims of non-disclosure privilege in civil cases involving private parties. Moloney is more similar to the Branzburg case, in that the matters in both cases concern disclosure in criminal proceedings.FN19 The US Government was seeking the interviews in Moloney pursuant to the Mutual Legal Assistance Treaty (MLAT) with England. Governmental and public interest seem to automatically have a higher stake in criminal proceedings, and especially where foreign treaty obligations are at issue.FN20 What is striking, regardless of the Supreme Court’s denial, is that the majority opinion of Moloney almost completely disregards the interests of the researchers. The majority does not include an analysis of the researcher’s interests other than to mention that “the fear…that disclosure might threaten their job security or personal safety or that it will simply result in dishonor or embarrassment” is insufficient to create enough of a scholar’s interest to tip the balancing scales in their favor. A balancing test is not a balancing test if one side is ignored. Justice Torruella appeared to be concerned with the majority opinion’s lack of consideration of the researcher’s First Amendment claims: It is one thing to say that the high court has considered competing interests and determined that the information gatherers (here, academic researchers) may not refuse to turn over material they acquired upon a premise of confidentiality when these are requested via government subpoena in criminal proceedings. It is entirely another to eagerly fail to recognize that the First Amendment affords the Appellants “a measure of protection…in order not to undermine their ability to gather and disseminate information.”FN21 Torruella concurred in the judgment of the opinion only, on alternate reasoning.
Justice Torruella’s astute observations in the Moloney concurrence call for a uniform application of the balancing test in order to fully protect the First Amendment rights of scholars, researchers, and academics. His opinion requires that the balancing test must actually perform balancing for a legitimate verdict to be reached.
III. Proposal for an Adequate Balancing Test
The balancing test that I propose is undoubtedly complex because it aims at protecting the interests of a variety of parties including: the subject, the researcher, the sponsor, the facilitator, the prosecutor, the state, and society.FN22 The test advocated here combines elements from the First Circuit balancing test from the Torruella concurrence in Moloney, and from various other circuits and lower courts, to propound a uniform standard that ultimately aims at recognizing and evaluating the interests of the scholars. I believe that this test fills gaps where the First Circuit majority in Moloney failed.
A. The First Amendment Interest: Potential Harm to Free Flow of Information
1. Qualified Individuals
The first factor to consider is whether the individuals that are trying to prevent disclosure fall under the traditional protections of the First Amendment.FN23 Reporters and academic researchers alike fall into these protections because they perform a range of conduct relating to the gathering and dissemination of information.FN24 The fact that scholarly research “provides the public with historical and analytical perspective on issues of public concern in government” demonstrates its traditional information dissemination purpose.FN25 No traditional First Amendment protection equals no potential protection under the scholar’s privilege. Determining that scholars and researchers should receive qualified protection under the balancing test is fairly straightforward analysis from the First Amendment. Determining who qualifies as a “researcher” or a “scholar” is a more difficult inquiry. Beyond researchers and scholars, archivists should also fall into the traditional First Amendment protections. “Archivists have a professional duty to curate many types of materials, some of which contain confidential information.”FN26 However, researchers, scholars, and archivists should all be classified by their functions rather than their titles.FN27
2. Confidentiality
The next factor to consider is whether or not the information, subject to disclosure, is classified as confidential. Information available to the general public or which can be accessed through other means of discovery may not be classified as confidential. Researchers should always be careful to get express, signed confidentiality agreements from their participants with explicit statements of protection. Even if a researcher has not made an express guarantee of confidentiality to their informants, a court may be able to deny a request for discovery of raw data if it finds very strong privacy interests are present.FN28 One disturbing aspect of the balancing test as it stands currently is that even express indications of confidentiality, like confidentiality agreements between researchers and participants, may not be indicative of privilege.FN29 For instance, even though the need for confidentiality was a central and prominent aspect of the Belfast Project in Moloney, including written agreements requiring that access to the interview records be restricted until their death or upon written approval,FN30 the court still rejected the application of privilege because the researchers knew that Boston College could make no guarantees of the ability to refuse disclosure on a court order. The court cited to a failure of Moloney’s donation agreements, but referenced Branzburg to reassert that even promises of confidentiality made in express confidence do not create a privilege.FN31 Therefore, confidential information is necessary for the privilege, but cannot alone establish the privilege under the current test. This decision invalidating express confidentiality agreements is contrary to public policy. Because the court in Moloney already had possession of the tapes from reviewing them in camera, they were “making a sham of the scholar’s absolute assurances to their interview subjects that they would keep the tapes absolutely confidential until the death of each interviewee.”FN32 The notion that researchers can make promises of protection to their participants that can be struck down as unenforceable in court is disconcerting. “[I]f the government may subpoena confidential information subject to virtually no judicial scrutiny, the likely result will not be that the criminal justice system benefits, but that fewer people involved in potentially illegal conduct opt to speak to the press in the first place.”FN33 Under this balancing test, explicit confidentiality agreements must weigh in favor of applying the scholar’s privilege in all but the most extreme factual circumstances. In Moloney the confidential interviews were sought through the MLAT treaty to solve longstanding murder investigations, which might very well reach the extremity requirement. Other factors relating to the confidentiality of the material must be taken into account as well.FN34 For instance, researchers may fear that they will “[run] the well dry” if their information is forcefully disclosed through subpoenas.FN35 Voluntary revelations and bargained-for communications between a researcher and study participants are vital to a researcher’s work. Consequently, “[w]ithout these sources . . ., many researchers, . . . would lose valuable sources of information.”FN36 Study participants revealing personal or embarrassing information will be appropriately shielded here under the balancing test. The study participants in the Proctor & Gamble case were kept confidential because the information was highly personal in nature including medical history and sexual activity. The nature of this personal information could inhibit future studies if revealed due to a fear by participants of inevitable disclosure.FN37 Furthermore, First Amendment interests should not be discounted because a third party holds the confidential materials.FN38 Third parties typically destroy confidential researcher-client communications in testimonial privileges and sever the effect of confidentiality agreements. In Moloney, Boston College was in possession of the confidential interviews. Boston College did not bother to challenge the first subpoena issued, and even when challenging the second subpoena, the lawyers began the challenge by submitting the materials to the judge to be examined in camera.FN39 Ultimately, researchers must take responsibility in forming explicit agreements with their participants and keeping their agreements and communications as their property. But, since difficulties may arise for researchers in keeping their research out of the hands of third parties (especially in the institutional context), the court should weigh the researcher’s efforts to retain sole possession over the information instead of the actual result. Efforts sufficiently signify that the researchers valued the confidentiality interests of their participants enough to make a stand for them, which should weigh in their favor. In sum, confidentiality must be weighed by (1) whether a confidentiality agreement was reached between researchers and participants (2) whether personal privacy interests are present for participants (3) whether future research will be inhibited if there is disclosure and (4) efforts by the researchers to keep their research out of a third party’s hands.
3. The Extent of Protection Appropriate: Dangerous or Scandalous Information
If the information pending disclosure is found to be confidential—the next step is to determine the extent of protection that is appropriate for the confidential information. Determining the extent of protection likely must be satisfied through a case-by-case basis, through context evaluation of the confidentiality aspect. The highest demonstrations of confidentiality should be afforded the most protection and inadequate showings will not earn protection. Torruella’s view in Moloney found the interviews that the Belfast Project researchers conducted were confidential—due to the great lengths that the researchers went to prevent their unsanctioned disclosure.FN40 The Moloney case is a perfect example of information found to be confidential that was still not afforded the protection that the researchers wanted. There are a number of ways for the party seeking disclosure to deal with information that falls somewhere between highly confidential and inadequate including: limiting the subpoenas to only relevant claims, being willing to accept data with redacted confidential information, and helping to underwrite the costs of redaction and photocopying.FN41 Beyond confidentiality, the personal safety and potential dangers that disclosure will cause for the researchers must be weighed as well. Media in response to the disclosures in Moloney reported death threats against the Lead Researcher for the Belfast Project, Anthony McIntyre.FN42 Mr. McIntyre also stated in an affidavit that the home next door to his was smeared with excrement after the interviews were released. As mentioned earlier, the topics of many research projects are sensitive, highly personal, or controversial, and the safety of researchers and participants absolutely must be weighed with care. The issuance of the subpoenas in Moloney also “prompted broad news coverage and a minor international scandal.”FN43 Not only did the ACLU attempt to intervene, but Senator John Kerry and Secretary of State Hillary Clinton urged British authorities to revoke the subpoenas to encourage the peace process in Ireland. John Kerry has further argued alongside Moloney and McIntyre that “peace process stability considerations must take precedence over the tightly-written treaty obligations of the MLAT.”FN44 Subject matter that is more likely to create public condemnation should be afforded the most protection under the balancing test, while benign research on uncontroversial subjects will typically garner less protection. On a similar note, public curiosity or newsworthiness in the content of confidential research should not be valued in the balancing test. The Dolours Price interview garners large public interest, but most of the interest is not based on the confidentiality issues or the police misusing academic researchers for law and order purposes. Instead, the public really wants to know the “gory details of what they imagine are in these interviews,” which is driving and influencing much of the reporting.FN45 Once again, an inflamed public, or heightened social interest should have no bearing on the balancing test in these cases. The focus must be turned from the sensational, provoking subject matter, to the true issue of the case—which is solely the rights of the academic researchers. In sum, there are a myriad of factors that fall into the First Amendment interests including whether the individuals fall into traditional First Amendment protection, whether the information is confidential, and the extent of protection that the confidentiality requires. The key to evaluating each of these factors is thoroughness and reasonableness.
B. The Opposing Interest: The Need for the Information
1. The Nature of the Proceedings
The nature of the proceedings, evinced by case law, primarily rests on whether the action is a criminal matter or civil matter. Branzburg flatly rejected the use of a reporter’s privilege in grand jury proceedings.FN46 Other than that, Branzburg did little to specify whether this type of privilege could be used elsewhere. This is where the circuit-split rears its ugly head. Some circuits have held that Branzburg forecloses First Amendment protection in all criminal cases.FN47 However other circuits have claimed there is no reason to distinguish between civil and criminal cases in application of the privilege.FN48 The majority in Moloney disavows the precedent of the First Circuit that permitted success and application of a scholar’s privilege simply on the basis that these were civil cases where the government and public’s strong interest in investigation of crime was not an issue.FN49 Case law evidences that the government’s presence as a party in criminal litigation makes a radical difference in the balancing test, as opposed to results obtained in private litigation.FN50 It seems that the government can more easily prove their need for the information by emphasizing interests of national security and public safety when criminal overtones are present.FN51 Essentially, when the Government is a party to the litigation, if they follow their own guidelines and use careful practice, there should be fewer problems with getting their subpoenas granted. In the Moloney case, the government was the party seeking disclosure of the information. The Government’s interest was clear through the UK-MLAT treaty in which the federal government of the United States assumed an obligation to assist the United Kingdom in its prosecution of domestic criminal matters.FN52 The current balancing test requires that for the party pursuing disclosure in civil litigation to defeat the scholar’s privilege, the research must be more than remotely related to the lawsuit. The relationship between the information sought and the academic research must be more than tenuous.FN53 For example, in one Second Circuit case, a student was working in a restaurant to gather information for his dissertation when a suspicious fire and explosion occurred in the restaurant.FN54 His journal and notes were subpoenaed. Although his journal entries were clearly “scholarly work product,” the relationship between the fire and the student’s academic research were remote and could not be classified as expertise. However, the question remains as to whether or not this binary distinction between civil and criminal cases is appropriate. The implication should be that civil cases will more likely be granted the privilege, but the type of case should not be a decisive factor. Criminal matters cannot be conceded to the government the way that they have been previously. Branzburg once again offers little guidance since the holding effectively only prevents a privilege in regard to grand jury proceedings. Therefore, the civil/criminal distinction should be considered when balancing the need for information, but should not preclude the government from being defeated if they are unable to prove that their need is legitimate.
2. Exhaustion of Alternative Sources
The second factor that must be addressed is whether the opposing party has exhausted alternative sources for accessing the information. Although this inquiry is not essential to defeating the privilege, it is still relevant in determining whether subpoenas seeking the confidential information are necessary.FN55 In Moloney, the information the government was seeking were interviews from one source who had passed away and one source that was still living. The government had no way of eliciting the information from the dead source, which makes their case even more compelling. However, the government could have contacted the living source, Dolours Price, to obtain the interview information. If Price were to refuse to surrender the information from her own memories and experiences, that would be her prerogative. This conundrum is similar to Cusumano, where the court permitted the scholar’s privilege, in which “Microsoft could have obtained that information directly from the sources revealed by the manuscript.”FN56 The one exception to living sources are cases where the alternative means of acquiring the information will create an undue delay or burden to the opposing party. In this case the factor should weigh in favor of the party seeking disclosure. At the time that the First Circuit opinion was issued, Dolours Price was an emotionally unstable woman. McIntyre speaks of Price as a sensitive woman who suffered mentally from the betrayal by those who shared culpability and by others who abdicated their responsibility.FN57 She would likely not have consented to an interview with the government in the way that she previously had with the Belfast Project researchers. In contrast, Price had built a relationship of trust with McIntyre; she attended his wedding and was the godmother of his son. These conditions on Price’s willingness to be interviewed may serve as an example of an undue burden to the opposing party seeking disclosure. But, once again, an unwillingness to perform other interviews should not constitute an undue burden unless all other alternatives to the information are inaccessible. The civil/criminal distinction may also come to bear on whether the information is accessible by other means. Case outcomes indicate that information sought in criminal cases will be more difficult to access from alternative sources.
Conclusion
There is no doubt that the scholar’s privilege argument will rear its head again soon, likely without the complications of an international treaty and a murder investigation allowing the courts to cruise past confidential researcher interests. At some point, the Supreme Court must clarify for lower courts to what extent parties asserting their First Amendment interests in challenging government subpoenas of confidential information should - consistent with Branzburg - have a Constitutionally guaranteed right to present evidence before the court for review. If not, scholars and researchers will continue to have their motions to dismiss disclosure quashed, which in turn will cause scholars and researchers to have their work, their passion, and their interest in sustaining oral and written history quashed. The time has come to stop quashing and start protecting.
FN1. University of Kentucky College of Law, J.D. candidate for May 2014.
FN2. Nicholas J. Wagner, Split Over Reporter’s Privilege Highlights Tension Between National Security and the First Amendment, Circuit Splits (July, 12, 2012, 5:27 AM) http://www.circuitsplits.com/2012/07/in-2010-before-an-audience-of-college-students-justice-sotomayor-remarked-that-the-supreme-court-is-likely-to-have-to-rule.html.
FN3. See United States v. Moloney, 685 F.3d 1, 16-20 (1st Cir. 2012); Will Havemann, Privilege and the Belfast Project, 65 Stan. L. Rev. Online 79, 79 (2012) http://www.stanfordlawreview.org/sites/default/files/online/articles/Havemann_65_SLRO_79.pdf.
FN4. See Robert M. O’Neil, A Researcher’s Privilege: Does Any Hope Remain? 59 Law & Contemp. Probs. 35, 36-37 (1996).
FN5. See Branzburg v. Hayes 408 U.S. 665, 690, 702-703 (1972).
FN6. See Wagner, supra note 2.
FN7. Kristina Spinneweber, Branzburg, Who? The Existence of a Reporter’s Privilege in Federal Courts, 44 Duq. L. Rev. 317, 334 (2006).
FN8. David A. Kaplan & Brian M. Cogan, The Case Against Recognition of a General Academic Privilege, 60 U. Det. J. Urb. L. 205, 221 (1982-1983).
FN9. See Howard Gray Curtis, Academic Researchers and the First Amendment: Constitutional Protection for their Confidential Sources, 14 San Diego L. Rev. 876, 877 (1976-1977) (explaining that the traditional disagreements have centered on journalists rather than academic researchers).
FN10. See Kaplan & Cogan supra note 8, at 215.
FN11. Paul Nejelski & Lindsey Miller Lerman, A Researcher-Subject Testimonial Privilege: What to do Before the Subpoena Arrives, 1971 Wis. L. Rev. 1085, 1134.
FN12. See Branzburg, 408 U.S. 665 at 689.
FN13. Cusumano v. Microsoft Corp., 162 F.3d 708, 714 (1st Cir. 1998).
FN14. Judith G. Shelling, A Scholar’s Privilege: In Re Cusumano, 40 Jurimetrics J. 517, 524 (2000).
FN15. See Rebecca Emily Rapp, In Re Cusumano and the Undue Burden of Using the Journalist Privilege as a Model for Protecting Researchers from Discovery, 29 J.L. Educ. 265, 268 (2000).
FN16. See Shelling, supra note 14, at 517.
FN17. United States v. Moloney, 685 F.3d 1, 16-20 (1st Cir. 2012).
FN18. Havemann, supra note 3 at 82.
FN19. Branzburg v. Hayes, 408 U.S. 665, 667-671 (1972); Moloney, 685 F.3d at 6.
FN20. Moloney, 685 F.3d at 18.
FN21. United States v. Moloney, 685 F.3d 1, 20 (1st Cir. 2012) (Torruella, J., concurring in the judgment only) (quoting Cusumano v. Microsoft Corp., 162 F.3d at 714 (1st Cir. 1998)).
FN22. Nejkelski & Lerman, supra note 11, at 1093.
FN23. U.S. Const. amend. I.
FN24. United States v. Moloney, 685 F.3d 1, 20 (1st Cir. 2012) (Torruella, J., concurring in the judgment only) (citing Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011)).
FN25. See Curtis, supra note 9, at 897.
FN26. Hannah Miller, Should a Legal Right to “Archival Privilege” be Established?, Due Process: Georgetown Law Library Blog, (February 26, 2013), http://www.law.georgetown.edu/library/blog/post.cfm/should-a-legal-right-to-archival-privilege-be-established.
FN27. Nejkelski & Lerman, supra note 11, at 1141.
FN28. See Eric M. Kraus & Arthur Palmieri, Investigating the Investigators: Balancing the Needs of Independent Researchers with Litigation Imperatives, Privacy & Data Security L. J. 659, 668 (2006).
FN29. United States v. Moloney, 685 F.3d 1, 4-6, 18-19 (1st Cir. 2012).
FN30. Petition for Writ of Certiorari, Moloney v. Holder, 2012 WL 5838450 at *7 (U.S.).
FN31. See Branzburg v. Hayes, 408 U.S. 665, 682 n. 21 (1972).
FN32. Harvey Silvergate, BC and the Belfast Project: A Scholar’s Privilege to Disobey, Forbes, (July 23, 2012, 11:48 AM), http://www.forbes.com/sites/harveysilverglate/2012/07/23/bc-and-the-belfast-project-a-scholars-privilege-to-disobey/.
FN33. Havemann, supra note 3.
FN34. O’Neil, supra note 4 at 36 (referring to the four concerns for protecting scholarly research).
FN35. Kraus & Palmieri, supra note 28 at 760.
FN36. Id. at 671.
FN37. See Farnsworth v. Proctor & Gamble Co., 758 F.2d 1545, 1546 (11th Cir. 1985)(preventing disclosure of questions regarding medical histories, sexual practices, contraceptive methods, pregnancy histories, menstrual activity, tampon usage, etc).
FN38. Brief for the Reporter’s Committee for Freedom of the Press as Amicus Curiae Supporting Petitioners at 3-5, Moloney v. Holder, No. 12-627, 2012 WL 6703006 (U.S.), at *4-*9.
FN39. See Silvergate, supra note 32.
FN40. United States v. Moloney, 685 F.3d 1, 20-21 (1st Cir. 2012) (Torruella, J., concurring in the judgment only).
FN41. See Kraus & Palmieri, supra note 28 at 674.
FN42. Katie Zezima, College Fights Subpoena of Interviews Tied to I.R.A., N.Y. Times, June 10, 2011, at A12.
FN43. Havemann, supra note 3 at 83.
FN44. Jim Dee, Death of Dolours could be a major game-changer, BelfastTelegraph.co.uk, Jan. 29, 2013, http://www.belfasttelegraph.co.uk/opinion/news-analysis/death-of-dolours-could-be-a-major-gamechanger-29041219.html.
FN45. Radio Free Eireann Interview with Anthony McInture and Ed Moloney: The Death of Dolours Price, Boston College Subpoena News (January 26, 2013), http://bostoncollegesubpoena.wordpress.com/2013/01/27/radio-free-eireann-interview-with-anthony-mcintyre-and-ed-moloney-the-death-of-dolours-price/.
FN46. Branzburg v. Hayes, 408 U.S. 665 at 707-08 (1972).
FN47. Petition for Writ of Certiorari, Moloney v. Holder, 2012 WL 5838450 (U.S.).
FN48. See Spinneweber, supra note 7 at 10-15.
FN49. United States v. Moloney, 685 F.3d 1, 18 (1st Cir. 2012) (distinguishing Cusumano v. Microsoft Corp., 162 F.3d 708 (1st Cir. 1998)); Bruno & Stillman, Inc. v. Globe Newspaper Co., 633 F.2d 583, 595-99 (1st Cir. 1980).
FN50. United States v. Burke, 700 F.2d 70, 77 (2d Cir. 1983).
FN51. Reporter’s Privilege Legislation: An Additional Investigation of Issues and Implications: Hearing Before the Committee on the Judiciary United States Senate; 109th Cong. 6 (2005) (statement of Hon. Chuck Rosenberg, U.S. Attorney for the S. D. of Tex.) (stating that the Governmental interest includes enforcing federal criminal law, protecting national security, protecting vital secrets, and protecting public safety).
FN52. United States v. Moloney, 685 F.3d 1, 21 (1st Cir. 2012) (Torruella, J., concurring in the judgment only) (citing UK-MLAT Technical Analysis, S. Exec. Rep. No. 104-23, at 11).
FN53. Bert Black, Research and Its Revelation: When Should Courts Compel Disclosure?, 59 Law & Contemp. Probs 169 at 179 (1996).
FN54. Id. (referencing In re Grand Jury Subpoena Dated January 4, 1984, 750 F.2d 223 (2d Cir. 1984)).
FN55. Curtis, supra note 9, at 888-889.
FN56. Cusumano v. Microsoft Corp., 162 F. 3d 708 at 712 (1st Cir. 1998).
FN57. See Radio Free Eireann Interview with Anthony McInture and Ed Moloney: The Death of Dolours Price, Boston College Subpoena News (January 26, 2013), http://bostoncollegesubpoena.wordpress.com/2013/01/27/radio-free-eireann-interview-with-anthony-mcintyre-and-ed-moloney-the-death-of-dolours-price/