Anticipating Law: Research Methods, Ethics, and the Law of Privilege

• Published in: Sociological methodology Vol. 32; no. 1; pp. 1 - 17
• Main Authors: Palys, Ted, Lowman, John
• Format: Journal Article
• Language: English
• Published: Boston, USA and Oxford, UK Blackwell Publishers 01.01.2002; Blackwell Publishing, Inc; American Sociological Association
• Subjects: Academic freedom; Common law; Confidentiality; Contempt of court; Criminal offences; Criminal Proceedings; Criminology; Drug abuse; Ethics; Federal Rules of Evidence; Grand juries; Information legislation; Journalism; Law; Legal Cases; Legislation; Litigation; Medical research; Participants; Patient confidentiality; Research design; Research Ethics; Research methodology; Research methods; Research Subjects; Research universities; Researcher Subject Relations; Researchers; Science; Social research; Social Science Research; Social sciences; Social sciences research; Sociological methodology; Sociology; State courts; State laws; Subpoenas; Symposium on Data Confidentiality and the Law
• DOI: 10.1111/1467-9531.00107
• ISSN: 0081-1750

Our ethical obligation to protect the research confidentiality of individual participants is challenged when third parties use subpoenas in the context of criminal proceedings and civil litigation in an effort to order the production of confidential information. This paper discusses strategies researchers may employ in order to maximize their legal ability to maintain confidentiality in spite of those challenges. Use of existing statutory protections is the first choice, but these are available for only a subset of research related to health and criminal justice issues. In situations where statutory protections are not available, the Wigmore criteria may act as a guide for the design of research that maximizes researchers' ability to protect research participants by advancing a case-by-case claim for researcher-participant privilege. We discuss the legal basis for this conclusion and outline procedures that may be used to further strengthen confidentiality protections.