Lead Opinion
At issue in this case is whether a private corporation, Dow Chemical Company, threatened with possible government cancellation of certain herbicides it manufactures, may compel through administrative subpoenas University of Wisconsin re
I. Background
This case arises out of four research studies at the University of Wisconsin involving the dietary ingestion by rhesus monkeys of a chemical compound, 2,3,7,8 — tetrachlorodibenzo-p-dioxin (TCDD), at levels of 500 parts per trillion (ppt), 50 ppt, 25 ppt, and 5 ppt, respectively. Relying in part on evidence from the 500 ppt study, the Environmental Protection Agency (EPA) ordered emergency suspension of certain uses of two herbicides Dow manufactures and scheduled cancellation hearings relevant thereto. The subpoenas now at issue relate to information about the 25 ppt and 5 ppt studies.
II. Judicial Enforcement of Administrative Subpoenas
A. Basic Principles
Under section 6(d) of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. § 136d(d), a district court has jurisdiction to enforce a subpoena issued by an administrative law judge.
A finding by the district court that documents are reasonably relevant to a legitimate agency purpose cannot be overturned absent a showing that the factual determinations on which it is based are clearly erroneous, see Anderson, supra, 631 F.2d at 746; F.T.C. v. Lonning, 539 F.2d 202, 210 n.14 (D.C.Cir.1976), or that the ruling itself constitutes an abuse of discretion, see Northern Trust, supra, 148 F.2d at 29. Similarly, court assessments of whether disclosure would be burdensome and of what restrictions might be appropriate are decisions within the sound discretion of the trial court and should only be reversed for abuse of discretion, see Lonning, supra, 539 F.2d at 111, save where they are intimately tied to a misunderstanding of law, in which case the ordinary standard of error applies, see Texaco, supra, 555 F.2d at 881, 882.
B. The District Court’s Analysis
1. Scope of Review
Dow takes exception to the district court’s characterization of the application for enforcement as a de novo proceeding.
Dow also contends that the district court erroneously failed to apply the Morton Salt standard. Indeed, courts have held the Morton Salt test applicable to adjudicatory subpoenas as well as to those issued for
Thus, the district court properly took cognizance of the fact that the subpoenas were requested in aid of adjudicative discovery. We do not view the Morton Salt doctrine as excluding from consideration the question whether the burden of compliance was unreasonable. We reject Dow’s argument that the court adhered to an erroneous view of the law.
2. Balancing
The basis for the district court’s decision was that the subpoenas were unduly burdensome on the respondents. It stated that from the reference to protective orders in the applicable statutory section
“Whether a subpoena duces tecum is unduly burdensome ‘is, of course, a matter to be decided in the light of all the circumstances of the case, with an eye to the need for the material on the one hand, and the- burden imposed and the possibility of lightening it through a protective order on the other. See In re Zuckert (D.D.C.1961) 28 F.R.D. 29 ....’ 5A Moore’s Federal Practice ¶ 45.05[q] note 44.” 494 F.Supp. at 112.7
Addressing Dow’s need for the subpoenaed documents, the court stated:
“There is little question that the information is in fact relevant but that its probative value at this stage of the study is quite limited. Dow does not dispute [Mr. John] Van Miller’s statement that it is not possible to conclude even tentatively that there is a cumulative no-effect level8 for maternal or reproductive toxicity at this point of the studies. Absent the ability to infer a no-effect level of TCDD, information that the test animals are showing no effects is not particularly probative.” 494 F.Supp. at 113 (emphasis and footnote added).
Noting that Dr. James R. Allen was no longer scheduled to be a witness and that the EPA apparently did not intend to introduce the documents Dow sought to discover, the court decided that Dow’s need for the information was not great.
As to the burden of production element, the court stated:
“I take judicial notice that it would be a substantial burden on respondents to force them to produce the information requested from the 5 ppt and 25 ppt studies which are nowhere near completion and which have not been subjected to peer review. In the early stages of any research project there are likely to be*1269 false leads or problems which will be resolved in the course of the study with no ultimate adverse effect on the validity of the study. To force production of all information demanded by the subpoenas is likely to jeopardize the study by exposing it to the criticism of those whose interests it may ultimately adversely affect, before there has been an opportunity for the researchers themselves to make sure the study is the result of their best efforts. This is not the kind of burden which can be lightened by a protective order. Putting this study in jeopardy would be a heavy burden not only on those involved in the research, but also on the public which has helped to fund it through tax money and which ultimately stands to gain from knowledge of the final results.” Id.
Summarizing its reasons for denying enforcement, the court concluded:
“that the probative value of the information sought by Dow is minimal; that it does not outweigh the substantial burden enforcement of the subpoenas would place on respondents; and that it could not be relieved by a protective order.” Id.
Dow challenges the district court’s analysis primarily on two grounds. It first argues that the court’s reliance on the statute’s reference to protective orders as justification for inquiring into burdensomeness and denying enforcement is misplaced because the statute contemplates the application of protective measures only once the decision to issue or enforce has already been made. Second, Dow claims that the district court’s balancing of need and probative value against burden of compliance far exceeds the limited review permissible in a subpoena enforcement action.
As to the first argument, it may well be unnecessary to rely upon an extrapolation of the statutory authorization of a protective order to justify the court’s inquiry into the extent of burden imposed by the subpoenas, and the resulting denial of enforcement.
In any event, the degree of burden is an aspect of reasonableness. Even if consideration of burdensomeness be not required by the Fourth Amendment, courts have not, and should not, lightly construe a statute as requiring a court to enforce compliance without deciding whether the burden is reasonable.
It is well settled that disclosure of subpoenaed information may be restricted where compliance would force an unreasonable burden on the party from whom production is sought.
We proceed now to consider the factors relevant to the reasonableness determination.
C. The Probative Value of the Information
When the district court says that there is little question that the data is relevant, but then distinguishes relevance from probativeness, the court is using a very broad meaning of the term “relevance,” something akin to “not clearly irrelevant.” The Federal Rules of Evidence would suggest a closer linkage between the concepts of relevance and probativeness since F.R.E. 401 defines relevant evidence in terms of its tendency to make the existence of a fact more or less probable, and thus comes pretty close to the idea of whether evidence has probative value. Similarly, as noted earlier, the fact the subpoenas were issued in aid of adjudication (as opposed to general investigation) would to some extent favor a more restrictive reading of relevance. However, regardless of the district court’s distinction between relevance and probativeness, it is clear there was no prejudice to the rights of Dow. The only real consequence is that the potential usefulness of the data was considered under the rubric of probative value instead of relevance. In this we find no reversible error.
In deciding that the information concerning the 25 ppt and 5 ppt studies was, at that point in time, not particularly probative,
First, Dow repeatedly insists, that according to the protocols for the studies, breeding trials would have taken place and thus data should have been available concerning conception, pregnancy, offspring, and the like. Assuming that is so, the mere existence of such information does not mean it would be useful or probative in the sense that conclusions could be drawn concerning cumulative reproductive and maternal toxicity. If neither the 25 ppt or 5 ppt study had reached the point where effects of TCDD intoxication could be expected to be observed, the absence of such effects is hardly significant.
Next, Dow claims that contrary to the statement in the affidavits that five years or more of TCDD ingestion would be necessary before conclusions could be drawn concerning a cumulative no-effect level, the grant application filed with the Government in connection with the studies indi
Dow also asserts that the “FIFRA Scientific Advisory Panel [which was consulted by the EPA pursuant to statutory command] recognized that the no-effect level for monkeys is likely to be found in the 25-50 ppt range and specifically recommended that at least the 25 ppt study be obtained because of its pertinence to consideration of the no-effect level.” But this argument, too, misses the point because regardless of whether the no-effect level is likely to be found in that range the actual determination cannot be made until the studies have continued long enough for the total dosage of TCDD received to be at least equivalent to the total dosage at which toxic effects were first observed when TCDD was administered at the higher dosages of 50 ppt and 500 ppt. Nothing in the advisory panel’s findings disputes this fact.
Further, Dow contends that the district court should have deferred to the AU’s determination that “relevant and useful data regarding conception, pregnancy and possible births should be available.”
“This is not to say that there has been a determination at this time as to whether or not any such discovered data will be probative or substantive in nature.”17
We conclude that the district court was entitled to give very substantial weight to the uncontradicted analysis of respondents as to how long it would take for information as to the possible existence of a no-effect level to become available. The court’s finding of little probative value is not clearly erroneous.
D. Dow’s Need for the Information
In concluding that Dow’s need for the information was not great, the district court took note of three specific factors: first, Dr. Allen no longer was scheduled to appear at the cancellation hearing, and even when he was to be a witness he did not intend to discuss the 25 ppt and 5 ppt studies; second, the EPA apparently did not intend to introduce as exhibits any of the documents or information Dow sought to discover since it failed to exchange them pursuant to the discovery provisions of 40
E. The Burden of Compliance
1. The Danger of Premature Disclosure
Dow argues that it was improper for the district court to take “judicial notice” of the fact that a substantial burden would be placed on Dr. Allen and Mr. Van Miller by forced compliance with the subpoenas. We are convinced that the court was not using that term in the classic sense, compare F.R.E. 201, but merely describing certain findings of fact it had made. There is a significant correlation between the court’s assessment of the burden on respondents and uncontroverted sworn statements submitted to the district court.
Relevant portions of the affidavits of Dr. Allen and Mr. Van Miller stated, without contradiction by Dow, that public access to the research data would make the studies an unacceptable basis for scientific papers or other research; that peer review and publication of the studies was crucial to the researchers’ credibility and careers and would be precluded by whole or partial public disclosure of the information; that loss of the opportunity to publish would severely decrease the researchers’ professional opportunities in the future; and that even inadvertent disclosure of the information would risk total destruction of months or years of research. These statements provide clear support for the district court’s findings that “the 5 ppt and 25 ppt studies ... [were] nowhere near completion and ... [had] not been subjected to peer review,” and that “force[d] production of all of the information demanded by the subpoenas ... [was] likely to jeopardize the study . . . [and] would be a heavy burden ... on those involved in the research.” 494 F.Supp. at 113 (brackets added).
There is also considerable dispute as to extent to which compliance with the subpoenas would have disrupted or interfered with continuation of the studies. Dow, of course, minimizes the burden by arguing that production of the documents could have taken place in stages and that respondents’ past adherence to federal reporting requirements in connection with its funding grants shows that information can be gathered without undue difficulty. Respondents, on the other hand, maximize the potential disruption, arguing that the exceedingly broad scope of the subpoenas
2. Academic Freedom
A point not discussed by the district court, but presented by the State of Wisconsin as amicus on appeal, is that the instant dispute touches directly upon interests of academic freedom. Essentially, the State argues that scholarly research is an activity which lies at the heart of higher education, that it comes within the First Amendment’s protection of academic freedom, and therefore judicially authorized intrusion into that sphere of university life should be permitted only for compelling reasons, which do not exist here. In response, Dow asserts simply that “[t]he First Amendment interests at stake in this case are no greater than those involved in the ordinary case of enforcement of a subpoena duces tecum.”
“Academic freedom, though not a specifically enumerated constitutional right, long has been viewed as a special concern of the First Amendment.” University of California Regents v. Bakke, 438 U.S. 265, 312, 98 S.Ct. 2733, 2759, 57 L.Ed.2d 750 (1978). Nearly a quarter-century ago, Chief Justice Earl Warren wrote:
“The essentiality of freedom in the community of American universities is almost self-evident. No one should underestimate the vital role in a democracy that is played by those who guide and train our youth.... Scholarship cannot flourish in an atmosphere of suspicion and distrust. Teachers and students must always remain free to inquire, to*1275 study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.”
Sweezy v. New Hampshire, 354 U.S. 234, 250, 77 S.Ct. 1203, 1211, 1 L.Ed.2d 1311 (1957), quoted with approval in Keyishian v. Board of Regents, 385 U.S. 589, 603, 87 S.Ct. 675, 683-84, 17 L.Ed.2d 629 (1967), and Whitehill v. Elkins, 389 U.S. 54, 60, 88 S.Ct. 184, 187, 19 L.Ed. 228 (1967). To be sure, “Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us not merely to the teachers concerned.” Keyishian, supra, 385 U.S. at 603, 87 S.Ct. at 683, quoted with approval in Bakke, supra, 438 U.S. at 312, 98 S.Ct. at 2760.
The precise contours of the concept of academic freedom are difficult to define. See Cooper v. Ross, 472 F.Supp. 802, 813 (E.D.Ark.1979). One First Amendment scholar has written “[t]he heart of the system consists in the right of the individual faculty member to teach, carry on research, and publish without interference from the government, the community, the university administration, or his fellow faculty members.” T. Emerson, The System of Freedom of Expression 594 (1970). We think it clear that whatever constitutional protection is afforded by the First Amendment extends as readily to the scholar in the laboratory as to the teacher in the classroom. See generally, id. at 619.
Of course academic freedom, like other constitutional rights, is not absolute, and must on occasion be balanced against important competing interests. See, e.g., Barenblatt v. United States, 360 U.S. 109, 112, 129, 130, 79 S.Ct. 1081, 1085, 1094, 1095, 3 L.Ed.2d 1115 (1959) (the Court recognized academic freedom element, but upheld contempt conviction of teaching fellow who refused to answer questions about Communist Party membership, since investigation was not directed at controlling what was taught at university but at overthrow of government). Case law considering the standard to be applied where the issue is academic freedom of the university to be free of governmental interference, as opposed to academic freedom of the individual teacher to be free of restraints from the university administration, is surprisingly sparse. But what precedent there is at the Supreme Court level suggests that to prevail over academic freedom the interests of government must be strong and the extent of intrusion carefully limited. In Sweezy, supra, the Supreme Court recognized that questions posed by a state attorney general to a university professor about the contents of a lecture invaded the professor’s liberty of academic freedom. The four-justice plurality stated that it could “not now conceive of any circumstance wherein a state interest would justify infringement of rights in .. . [this field],” but concluded it was unnecessary to reach that fundamental question of state power. 354 U.S. at 251, 77 S.Ct. at 1212. It based its reversal of the professor’s contempt conviction on the ground that there was no clear showing that the legislature had authorized the type of inquiry made by the attorney general. Justice Frankfurter, joined by Justice Harlan, concurred in the result on First Amendment grounds. Applying a balancing test, which gave predominant weight to the grave harm resulting from governmental intrusion into the intellectual life of a university, Justice Frankfurter wrote:
“[Academic] inquiries ... must be left as unfettered as possible. Political power must abstain from intrusion into this activity of freedom, pursued in the interest of wise government and the people’s well-being, except for reasons that are exigent and obviously compelling.” 354 U.S. at 262, 77 S.Ct. at 1217.22
In Keyishian, supra, the Court struck down key provisions of state loyalty requirements for teachers as vague and overbroad. After discussing the importance of academic freedom, the opinion of the Court, by Justice Brennan, stated:
*1276 “We emphasize once again that ‘[precision of regulation must be the touchstone in an area so closely touching our most precious freedoms, .... Because First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity’ .... The danger of ... chilling . .. the exercise of vital First Amendment rights must be guarded against by sensitive tools . . . . ” 385 U.S. at 604-605, 87 S.Ct. at 684-85 (citation omitted).
In the present case, the 25 ppt and 5 ppt administrative subpoenas by their terms would compel the researchers to turn over to Dow virtually every scrap of paper and every mechanical or electronic recording made during the extended period that those studies have been in progress at the university. The ALJ’s decision would have further obliged the researchers to continually update Dow on “additional useful data” which became available during the course of the proceedings.
We do not suggest that facts could not arise sufficient to overcome respondents’ academic freedom interests in the 25 ppt and 5 ppt studies. Nor do we say that a waiver of the protection afforded by the First Amendment is impossible. If, for example, Dr. Allen, Mr. Van Miller, or other researchers were likely to testify about the 25 ppt and 5 ppt studies at the cancellation hearing, there might well be justification for granting at least partial or conditional enforcement of the subpoenas. Of course, we need not decide that question now. For present purposes, our point is simply that respondents’ interest in academic freedom may properly figure into the legal calculation of whether forced disclosure would be
3. Third Party Status
Section 6(d) of FIFRA permits subpoenas for documents to be issued against non-parties as well as against those directly involved in the proceeding out of which the subpoenas arose. Notwithstanding that fact, a court may properly give account to the third-party status of those from whom production is sought in determining whether compliance would constitute an undue burden. See Richards of Rockford, supra, 71 F.R.D. at 390 (“Neither ... are parties to the underlying action .... [T]his considerationf] weigh[s] the balance toward non-disclosure”); F.T.C. v. Bowman, 149 F.Supp. 624, 629-630 (N.D.Ill.), aff’d, 248 F.2d 456 (7th Cir. 1957) (“the imposition of a heavy burden upon a witness not a party to that proceeding should be avoided”); but see Dresser Industries, supra, at p. 71,491 (“[0]ne who opposes an agency’s subpoena must bear a heavy burden. That burden is essentially the same even if the subpoena is directed to a third party.”) While the factor is far from a decisive one, it is entitled to some measure of consideration. The fact that Dr. Allen and Mr. Van Miller are not parties to the cancellation hearing adds its weight, however small, to the side of the scale favoring non-disclosure.
F. Protective Order
In its brief Dow contends that it has long been prepared to agree to a reasonable protective order for the data to safeguard its confidentiality pending respondents’ submission of any report on the studies for publication. However the extent to which Dow has manifested this readiness is open to question since Dow fails to dispute the statements in Dr. Allen’s and Mr. Van Miller’s affidavits that they were never contacted by Dow (or by the EPA) concerning the possibility of such an arrangement. Also, while the AU indicated a willingness to “entertain any motion for a protective order upon good cause shown,”
The district court recognized that in a subpoena enforcement action it is appropriate to consider the extent to which the burden of production may be lightened through a protective order, 494 F.Supp. at 112, but its discussion of this subject is exceedingly limited. After reviewing the nature of the burden imposed on respondents, the court simply concluded: “This is not the kind of burden which can be lightened by a protective order.” 494 F.Supp. at 113.
Although it would have been helpful if the district court had indicated its reasons for reaching that conclusion, we are not persuaded that the district court abused its discretion.
G. Miscellanea
Aside from, the issues heretofore discussed respondents argue that the subpoenas should not be enforced for several reasons, including that: respondents do not possess or exercise control over the documents; no witness fees were tendered; modified subpoenas were never served subsequent to the partial grant of the motion to quash; the subpoenas are overly broad and vague; production was required at three different locations at the same time; and the materials are protected from disclosure by the state of Wisconsin trade secrets privilege. In view of our disposition of the case, we find it unnecessary to address these questions.
H. Conclusion
The district court held that production of raw research data, far in advance of the time that relevant and probative results could be expected, should not be compelled over the non-frivolous objections of the researchers. The findings upon which the court based this decision were not clearly erroneous, nor was the holding itself an abuse of discretion. Accordingly, the judgment appealed from is AFFIRMED.
. The ALJ excluded the 500 ppt and 50 ppt studies from the subpoenas based on his understanding of representations by EPA counsel that respondents would voluntarily produce the documents and materials related thereto. See Joint Appendix, p. 26. Subsequently, the information relating to the 500 ppt study was turned over, but the materials relating to the 50 ppt study were not disclosed and became the subject of a second enforcement action, United States v. Barsotti, Civ. No. 80-C-677 (W.D. Wis. filed Dec. 31, 1980). That action was dismissed on April 27, 1981, after the EPA moved to withdraw the subpoenas relating to the 50 ppt study.
. The United States, petitioner in the district court, originally filed an appeal from the order denying enforcement, but later withdrew the same. It has not submitted a brief in the present appeal which was perfected by Dow, intervening petitioner in the district court. The respondents-appellees, Dr. James R. Allen and Mr. John Van Miller, were at times participants in the University of Wisconsin studies and were the parties to whom the subpoenas were issued. James P. Wachtendonk, et al, intervening respondents-appellees, are Vietnam veterans and families of servicemen who were permitted by the district court to enter this litigation because of the relevance of the studies to suits arising out of servicemen exposure to certain tree defoliants used in Southeast Asia between 1962 and 1971. The State of Wisconsin appears before us as amicus curiae.
. We are unaware of any judicial decisions concerning enforcement of administrative subpoenas issued under FIFRA. Consequently, our discussion is guided by cases dealing with the enforcement of administrative subpoenas issued in other contexts. Case law and the parties before us endorse this approach.
. The case cited by the district court on this point, E. E. O. C. v. United States Fidelity & Guaranty Co., 414 F.Supp. 227, 232 (D.Md.1976), held that “[a] subpoena enforcement proceeding is a de novo proceeding before [the District] Court” and therefore respondent was not barred from raising issues which it failed to raise before the Commission. That decision was affirmed on appeal without published opinion, 538 F.2d 324 (4th Cir. 1976).
. The ALJ’s decision was made without the benefit of the extensive affidavits submitted to the district court. See the discussion in the text, infra. It appears, also, that although the EPA made the motion to quash before the ALJ in the names of Allen and Van Miller, they may not have had a full opportunity to participate.
. 7 U.S.C. § 136d(d) provides in part:
“Upon a showing of relevance and reasonable scope of evidence sought by any party to a public hearing, the [ALJ] shall issue a subpoena to compel testimony or production of documents from any person. The [ALJ] shall be guided by the principles of the Rules of Civil Procedure in making any order for the protection of the witness or the contents of documents produced.... On contest, the subpoena may be enforced by an appropriate United States district court in accordance with the principles stated herein.”
. In a footnote, the district court observed:
“This passage from Moore’s and the case cited therein refer to Rule 45, F.R.C.P. which is not specifically applicable to the issuance of the subpoenas at issue in this case. However, they are ‘in pari materia’ and are persuasive regarding the meaning of § 136d(d).”
. A cumulative no-effect level is a dosage at which a toxin produces no adverse effects on a species regardless of the length of time for which the dosage is continued.
. This is so at least where there are facts sufficient to raise a true question of burdensomeness. See note 12, infra.
. Ordinarily such restrictions take the form of limitations on the scope of discovery, see Adams v. F.T.C., 296 F.2d 861, 870 (8th Cir. 1961), special provisions concerning manner and time of production, see Shaffner, supra, 626 F.2d at 38; S. E. C. v. Savage, 513 F.2d 188, 189 (7th Cir. 1975), or protective orders forbidding outside disclosure of the information, see Lonning, supra, 539 F.2d at 211, and cases cited therein. But where such types of protection are impracticable or clearly inadequate in terms of the burden or risk that is threatened, we see no reason why disclosure may not fully be denied. Cf. United States v. Powell, 379 U.S. 48, 58, 85 S.Ct. 248, 255, 13 L.Ed.2d 112 (1964) (subpoena issued not in good faith, but to harass or pressure subject of investigation, need not be enforced). Otherwise enforcement of the subpoena would run afoul of the Fourth Amendment’s reasonableness requirement, discussed by the Supreme Court in Oklahoma Press, supra, 327 U.S. at 208, 66 S.Ct. at 505, and in other cases. See F.C.C. v. Cohn, 154 F.Supp. 899, 908 (S.D.N.Y.1957) (“courts will plainly refuse to enforce an administrative subpoena which is not within the bounds of reasonableness”); see also Chapman v. Maren Elwood College, 225 F.2d 230, 231, 232 (9th Cir. 1955) (enforcement denied, notwithstanding fact that “matters ... sought were subject to jurisdiction of the [Veteran’s] Administration,” where uncontested “affidavit ... tended to prove that demand was entirely unreasonable”).
. See, e.g., F.T.C. v. Dresser Industries, [1977-1] Trade Cases ¶ 61,400, at pp. 71,492-71,493, (D.D.C.1977):
“It may very well be Dresser’s burden is greater than that of other subpoenaed companies, but ... it is Dresser’s dominance in the industry which makes the subpoena served upon it critical to Kaiser’s defense .... [T]he court must find that the burden imposed is not an unreasonable one....”
. It is important to distinguish the question of reasonable burden from the question of reasonable relevance. The Morton Salt “standard of reasonable relevance does not ... require a showing of specific need for the information.” United States v. First City Nat. Bank of El Paso, 598 F.2d 594, 599 (Temp.Emer.Ct.App.1979); see also Dresser Industries, Inc., supra, at p. 71,492 (“strong showing of relevance or need ... is not the correct standard”). Thus we agree with Dow that in the usual case a court need not inquire into the need or reasons of the party seeking enforcement of the subpoena. Where, however, as here, factually supported affidavits clearly raise a colorable claim of unreasonable burden, it is incumbent upon the court to make such an inquiry. Cf. S.E.C. v. Brigadoon Scotch Distilling Co., 480 F.2d 1047, 1056 (2d Cir. 1973) (“in appropriate circumstances a court may inquire into the reasons for an investigation and into its effects”).
. The district court’s finding that the data was not yet probative in itself provides reason for affirming the judgment appealed from. Section 164.51, 40 C.F.R. ch. 1, the regulatory provision which governs pre-hearing discovery, see Allen, supra, 494 F.Supp. at 112, permits discovery “only upon determination by the Administrative Law Judge ... that such information has significant probative value.” The ALJ found it impossible to say whether the information would be probative in nature, see text accompanying n.17, infra, and the district court went even further by finding that probative value was “quite limited,” 494 F.Supp. at 113. The court discussed the applicability of § 164.51 but rested its decision on other grounds, specifically avoiding the question of whether the regulation was consistent with the statute. We see no conflict between the Act and § 164.51 of the regulations. Section 6(d) of FIFRA, 7 U.S.C. § 136d(d), see n.6 supra, does not expressly mandate pre-hearing discovery, but instead sets down certain minimum requirements for exercise of the ALJ’s compulsory process authority. Such expressions by themselves create no entitlement to pre-hearing discovery. Cf. NLRB v. Interboro Contractors
"Inasmuch as a cancelled pesticide remains on the market until completion of the hearing, it has been advisable in the public interest and the orderly administration of justice to limit discovery to witness lists and exhibits, unless discovery ... is determined by the Administrative Law Judge not to unreasonably delay the proceeding, that the information is not otherwise obtainable and that the information has significant probative value." 38 Fed.Reg. 19371 (1973).
As such, § 164.51 reflects a sensitive appreciation of the circumstances surrounding a cancellation hearing. The requirements of § 164.51 in no way conflict with the “relevance” and “reasonable scope” requirements of FIFRA § 6(d). Thus, the district court could properly have denied the motion to enforce on the ground that the ALJ was unable to state that production would yield significantly probative information.
We reject Dow’s contention that the “relevant and material” standard of 40 C.F.R. § 164.70(a), instead of the “significant probative value” test of 40 C.F.R. § 164.51, governs its right to pre-hearing discovery. Section 164.70(a) provides:
“Subpoenas may be issued by the [ALJ] sua sponte or upon a showing by an applicant that evidence sought for hearing is relevant and material to the issues involved in the hearing or that the sought discovery pursuant to § 164.51 meets the standards set forth therein.”
Clearly, § 164.70(a) contemplates that in the context of pre-hearing discovery the more specific provisions of § 164.51 shall govern over the more lenient general provisions which it sets forth. To read § 164.70(a) otherwise would be to render superfluous the terms of § 164.51 and § 164.70(a)’s reference to them.
. There is no suggestion anywhere in the papers before us that monkeys receiving 25 ppt and 5 ppt TCDD have manifested signs of TCDD intoxication. The only relevant statements — and the ones upon which Dow hopes to capitalize, see Appellant’s Brief at pp. 35-36 —indicate that no adverse effects have been observed. For example, a progress report filed by Dr. Allen states that monkeys receiving 25 ppt for six months or 5 ppt for three months were free of signs of TCDD intoxication. Joint Appendix, p. 177. This is of no significance since even in the 25 ppt study no such effects are expected until the studies have continued for at least 60 months.
. The “critical intake level” is the point at which the total amount of TCDD ingested by the study animals first produces observable adverse effects.
. Joint Appendix, p. 27 (emphasis added).
. Id.
. Section 164.50, C.F.R. ch. 1, provides for “primary discovery,” that is, the exchange by the parties of witness lists, documents, and exhibits expected to be used at the hearing.
. Certain developments have taken place subsequent to the district court’s ruling, but we do not think they mandate a contrary result. First, Dow’s brief states that, “respondent Allen and a co-researcher have now been subpoenaed to testify at the hearing.” Appellant’s Brief, p. 38 n.17. Assuming that is so, there is still no indication that Dr. Allen will discuss the 25 ppt and 5 ppt studies, nor that the co-researcher [who Appellant’s Reply Brief indicates is Dr. Deborah A. Barsotti] would testify in that area.
Second, certain subpoenas relating to the 50 ppt study have been withdrawn and references to that study have been excluded from the EPA hearing record. See letter from respondents’ counsel to the Clerk, Aug. 12, 1981, p. 1. Dow’s need for the 25 ppt and 5 ppt studies’ data is therefore, if anything, even less than before. See letter from Dow’s counsel to the Clerk, Mar. 19, 1981, p. 3 (“[I]f [AU] ... eventually withdraws the 50 ppt subpoenas with prejudice and strikes any reference to the 50 ppt study from the agency record, ... Dow’s need for the 25 ppt and 5 ppt material .. . would be substantially diminished.”)
. The subpoenas required production of all “documents and records” related to the 25 ppt and 5 ppt studies and defined those terms as:
“[A]U letters, memoranda, correspondence, reports, notes, drafts, working papers, protocols for scientific studies, laboratory notebooks, raw data, data compilations, graphs, charts or papers of any kind, whether handwritten, typed, printed, or reproduced photo-statically or photographically, all film, photographs, videotapes, drawings, or other visual representations, and all magnetic, mechanical, or electronic recordings or other forms of data compilation. The term ‘documents and records’ does not include articles published in recognized scientific journals of wide circulation.”
. Appellant’s Reply Brief, p. 23.
. See also the dissent of Justice Douglas in Board of Regents v. Roth, 408 U.S. 564, 581-582, 92 S.Ct. 2701, 2711-12, 33 L.Ed.2d 548 (1972), quoting Justice Frankfurter’s statement with approval.
. Joint Appendix, p. 28.
. Cf. Gavison, Privacy and the Limits of Law, 89 Yale L.J. 421, 448 (1980):
“[P]rivacy ... contributes to learning ... by insulating the individual against ridicule and censure at early stages of groping and experimentation. No one likes to fail, and learning requires trial and error .... In the absence of privacy we would dare less, because all our early failures would be on record. We would only do what we thought we could do well. Public failures make us unlikely to try again.” (Footnote omitted.)
. It is not unduly speculative to imagine that a large private corporation, through repeatedly securing broad-based subpoenas requiring total disclosure of all notes, reports, working papers, and raw data relating to on-going studies, could make research in a particular field so undesirable as to chill or inhibit whole areas of scientific inquiry. Of course in the instant case we are concerned only with a single, albeit broad, demand for disclosure.
. Richards of Rockford was an action for breach of contract and defamation. In the course of discovery, the plaintiff moved to compel a third party university professor to testify and produce documents concerning confidential interviews with defendant’s employees made as part of a research project. The district court, in denying the motion, recognized that “society has a profound interest in the research of scholars, work which has the unique potential to facilitate change through knowledge,” and found that that consideration as well as other factors weighed in favor of non-disclosure. 71 F.R.D. at 390.
. Joint Appendix, p. 27.
. Paragraph 25 of Dr. Allen’s affidavit and paragraph 14 of Mr. Van Miller’s second affidavit alleged that Dow breached an understanding of confidentiality relating to the 500 ppt study by releasing the tissue analysis from that study to Dr. Henry Spencer, an EPA staff member. Paragraphs 3, 5, and 6 of the second affidavit of Dr. R. J. Kociba, a scientist for Dow, denied either an agreement of confidentiality or an intentional breach and suggested that, “Assuming that Dr. Spencer received the tissue analyses from Dow, my best assumption is that he may have happened upon the correspondence and notes in the files during the course of an EPA audit of Dow’s TCDD studies and analyses.”
Concurrence Opinion
concurring.
While there seems to be little dispute that the district court’s function in an enforcement proceeding such as the present-one is narrowly limited, and while, in my opinion, the district court in its hearing may well have been approaching the outer limits of matters which should properly have been considered, nevertheless, the careful analysis and close reasoning of the opinion of this court persuades me to concur in the result reached, and with the exceptions noted hereinafter, to concur in the court’s opinion. In concurring, I particularly note that this court’s opinion holds on the basis of “the present facts” that disclosure should not be forced.
Specifically, I do not join in that part of the opinion designated as II. E. 2., Academic Freedom. This basis for affirmance of the district court’s order was interjected into this case by the brief of Amicus Curiae, The State of Wisconsin. The argument portion of the Amicus brief is approximately four pages in length, all of which are double spaced typing with the exception of a one-half page quotation from Shelton v. Tucker, 364 U.S. 479, 487, 81 S.Ct. 247, 251, 5 L.Ed.2d 231 (1960). The opinion of this court does not cite or quote from that case. This court’s opinion does correctly note that this issue was not discussed by the district court in its opinion. I am unaware from that opinion that the issue was even presented to the district court. Only the scantiest attention was given to the point in either the briefs or oral argument in this court.
I am also concerned about one other matter and that is that ultimately either Dr. Allen or Mr. Van Miller may testify in the cancellation hearing with regard to the 5 ppt and 25 ppt studies. At the time of the district court’s decision the court observed that Dr. Allen was apparently not planning to be a witness at the hearing and even if he had been he did not intend to discuss the 5 ppt and 25 ppt studies, 494 F.Supp. 113. The opinion of this court however has as one of its principal foundations the fact that neither of the above individuals would be testifying and certainly would not be testifying on the 5 ppt and 25 ppt data.
This court’s opinion recognizes that if Dr. Allen, Mr. Van Miller, or other researchers were likely to testify about the 5 and 25 studies at the cancellation hearing there might well be justification for granting partial or conditional enforcement of the subpoenas. I particularly concur in this observation as I find one of the most forceful reasons for affirming the district court to lie in the fact that it is not contemplated that these particular studies would be the subject of testimony at the cancellation hearing. If it should develop that the contrary is true, I am of the opinion that it would be appropriate to give favorable consideration to a reexamination and judicial assessment of the subpoenas.
The respondents are concerned, which concern is also expressed in the opinion of this court, that periodic disclosure of the data could severely jeopardize the careers and reputations of the researchers. I do not share in this concern as at the time the subpoenas were issued, as I understand it, just seeking laboratory data. I can see that researchers might draw early conclusions from data which was not substantiated by further empirical laboratory studies. The public exposure to the early conclusions of the researchers might well cast some doubt on their ability to analyze laboratory data. What is involved here, however, seems to me to be merely a matter of recording accurately. A researcher’s reputation perhaps deserves to be subject to some questioning if he or she cannot accurately observe and record specific factual matters.
. Indeed, the respondents made out an arguable case that they did not have possession or exercise control over the documents in question which raises some doubt as to whether this in itself might not have been dispositive of the case. I recognize that the issue, of course, could be resuscitated if the subpoenas were redirected to those having possession or control.