Pending before this Court is the “Motion to Compel Production of Documents in Response to Subpoena Duces Tecum” served by defendant Philip Morris Incorporated on third party respondent University of Southern California (“USC”). The Court conducted hearings on this motion on September 9, 1999 and December 17, 1999. Upon consideration of the motion and supporting pleadings, the opposition pleadings of third party University of Southern California and intervenor the State of California, and the arguments of counsel, the Court orders the following:
Defendant Philip Morris’ Motion to Compel Production of Documents in Response to Subpoena Duces Tecum is GRANTED, SUBJECT TO THE PROTECTIVE ORDER SET FORTH HEREIN.
Plaintiff Robert Murphy has initiated an action against defendant Philip Morris and others in the District of Nevada, case number CV-S-98-00021-HDM(RJR), asserting he contracted lung cancer because of alleged exposure to second hand tobacco smoke. (Defendant’s Notice of Related Case Pursuant to Local Rule 4.3.1(c), p. 1-2). Further, the expert witnesses designated by plaintiff Murphy in the District of Nevada lawsuit have identified the December 1992 report of the United States Environmental Protection Agency (“EPA”), entitled “Respiratory Health Effects of Passive Smoking: Lung Cancer and Other Disorders,” as one of the reports that they will rely upon to support their testimony. It is undisputed that the epidemiological study entitled “Lung Cancer in Nonsmoking Women” (the “Fontham Study”) by the University of Southern California, the California Department of Health Services (“DHS”), and four other universities was one of the principal studies on which the EPA based its conclusion that there is a causal connection between environmental tobacco smoke and certain diseases, among them lung cancer.
As part of its preparation for defense of the Murphy lawsuit, Philip Morris seeks to compel the University of Southern California to disclose the raw data (including primarily, the information contained in “completed research interview questionnaire[s] filled out during the interview[s] of [ ] research participant[s]”) that underlies the Fontham study. The University of Southern California and intervenor the State of California oppose the motion on the ground that disclosure would abrogate the prohibition against disclosure of the identities of study participants delineated by California Health and Safety Code §§ 100330 and 103885. Moreover, respondents argue that California Evidence Code § 1040(b)(1) provides an umbrella of absolute privilege for the Fontham raw data as “official information.” Alternatively, respondents contend that even if the raw data is not covered by an absolute privilege, disclosure “is barred by the conditional privilege set forth in California Evidence Code § 1040(b)(2).” Respondents further argue that compelling disclosure will have a damping effect on future public health studies where confidential information about individuals must be gathered.
The parties do not dispute this Court’s determination that California privilege law (as opposed to that of Nevada) should be applied in this case. While Rule 501 of the Federal Rules of Evidence says nothing about “which state’s privilege law to apply when state law controls and the litigation has contacts with two or more states,
. . .[t]he majority of circuits apply the privilege law of the state that would be chosen under the choice-of-law rules used by the state where the court sits.” 3 Weinstein’s Federal Evidence § 501.02[b] (2d Edition, 1999).1 Since the State of California, through the DHS, played a substantial role in the collection of the raw data, since a substantial portion of the participants whose Fontham Study raw data would be disclosed are or were California residents, and since the State of California has a significant interest in ensuring that its statutory provisions for confidentiality (under the California Health and Safety Code) are vindicated, California’s choice of law rules require that California privilege law apply. In contrast, no party to this discovery proceeding has asserted, and the court is not aware of, a distinct governmental interest on the part of the State of Nevada in the discovery issue before this Court. See Bernhard v. Harrah’s Club, 16 Cal.3d 313, 316; Hurtado v. Superior Court, 11 Cal.3d 574, 579-80 (1974).
In Wolpin v. Philip Morris Incorporated, et al., CV 98-3027 RAP (JGx), United States District Judge Richard A. Paez considered the impact of these same California statutes on disclosure of some of the same Fontham study raw data that is at issue here. Analogizing to the California Supreme Court’s determination in Davies v. Superior Court, 36 Cal.3d 291 (1984), Judge Paez held that the confidentiality-based privilege defined by Health and Safety Code § 110330 is not an absolute privilege. In Davies, a petitioner sought disclosure of California Highway Patrol accident data, which came under the confidentiality coverage of California Vehicle Code § 20012. The California Supreme Court ultimately construed the confidentiality provision to apply only to the identifying information of the person(s) reporting the accident, and not to the non-identifying accident data. Thus, the California Supreme Court construed the confidentiality privilege in the Vehicle Code as a conditional, rather than absolute, privilege. On the basis of the California Supreme Court’s treatment of the Vehicle Code confidentiality privilege, Judge Paez reasoned that the similarly styled confidentiality privilege in Health and Safety Code § 110330 should not be deemed an absolute privilege, but instead a conditional privilege coming under the auspices of California Evidence Code § 1040(b)(2). (“Order Denying University of Southern California’s Motion for Review and Reconsideration of Magistrate Judge’s Order for Production of Documents,” CV 98-3027 RAP, pp. 15-16; Exhibit “E” to Declaration of Barry R. Davidson in Support of Defendant’s Motion to Compel Production of Documents, filed July 13, 1999.) Section 1040(b)(2) requires non-disclosure when “[d]isclosure of the information is against the public interest because there is a necessity for preserving the confidentiality of the information that outweighs the necessity for disclosure in the interest of justice.” Cal. Evid. Code § 1040(b)(2).
As this court stated during the hearings on this motion, this court concurs with Judge Paez’s analysis as to the nature of the section 110330 confidentiality privilege; accordingly, the objectives of the hearings conducted by this Court were to determine 1) whether it is feasible to disclose the raw data in a form such that the identities of the study participants would not be compromised; and 2) whether the public interest in non-disclosure outweighs Philip Morris’ need for the raw data to defend itself in the Murphy case.
This court has carefully considered the submissions of both parties in this regard. Respondent USC has made a compelling case, especially through its court-ordered in camera submissions, that the data itself (where the names and addresses of the participant and family members have been redacted) in at least several instances can be used by a reasonably capable researcher to identify the subject that the data reflects. However, the question this court must consider is whether that possibility of identity revelation is unavoidable by virtue of the interconnection of the raw data to the identity of the study participant.
This Court finds that while USC has demonstrated that the Fontham study raw data could be used to identify many of the study participants, the data itself without further inquiry does not automatically identify any participant; in other words, the Court finds it unlikely that anyone without personal knowledge of a particular study participant could read the raw data and, without using the information therein to research other databases, know the identity of the participant. Movant Philip Morris has repeatedly assured this court that it has no intention of using the raw data to identify any of the study participants. The court accepts Philip Morris’ representation.
Nevertheless, the mandate that this Court take affirmative steps to avoid the unnecessary disclosure of the personal identities of the Fontham study participants is unarguable. In addition to the conditional, confidentiality privilege of California Health and Safety Code § 110330, respondent USC has correctly noted that since the Fontham study was federally funded, 45 C.F.R. § 46.116(a)(1)-(5) and 42 U.S.C. § 241(d) also require that the names and “identifying characteristics” of the subjects not be disclosed. Likewise, as USC has noted, there is a strong public policy interest in protecting the identities of the study participants so that public health/academic research will not be stymied. (Opposition of Third Party University of Southern California to Defendant Philip Morris’ Motion to Compel Production of Documents, filed August 26, 1999, pp. 20-24.) In Glenmede Trust Co. v. Thompson, 56 F.3d 476, 483 (3d Cir. 1995), the Third Circuit Court of Appeal set forth “several factors, which are neither mandatory nor exhaustive, that may be considered in evaluating whether ‘good cause’ exists [for issuance of a protective order]:
1) whether disclosure will violate any privacy interests;
2) whether the information is being sought for a legitimate purpose or for an improper purpose;
3) whether disclosure of the information will cause a party embarrassment;
4) whether confidentiality is being sought over information important to public health and safety;
5) whether the sharing of information among litigants will promote fairness and efficiency;
6) whether a party benefitting from the order of confidentiality is a public entity or official; and
7) whether the case involves issues important to the public
23 F.3d at 787_91. Although we have recognized that the district court is best situated to determine what factors are relevant to the dispute, we have cautioned that the analysis should always reflect a balancing of private versus public interests --
‘Discretion should be left with the court to evaluate the competing considerations in light of the facts of individual cases. By focusing on the particular circumstances in the cases before them, courts are in the best position to prevent both the overly broad use of [confidentiality] orders and the unnecessary denial of confidentiality for information that deserves it . . . .’
Id. at 789 (quoting Arthur R. Miller, Confidentiality, Protective Orders, and Public Access to the Courts, 105 Harv.L.Rev. 427, 492 (1991)).
In the case at bar, all of the aforementioned factors militate for imposition of a protective order. The impact of environmental tobacco smoke on human health is a significant public health concern; likewise, due process specifically and justice generally require that Philip Morris’ ability and right to defend itself against the Murphy allegations, where the outcome of such defense may impact both the public and Philip Morris, not be compromised; in contrast, the identities of individuals whose personal stories have contributed to the collection of information on this subject is of little or no public concern. Moreover, both California law and federal law require that, to the extent possible, these identities be protected.
Finally, since the public’s interest in non-disclosure of the data is actually limited only to non-disclosure of the actual identities of the study participants, and since this Court herein will establish a protective order designed to protect precisely that information while not affecting Philip Morris’ ability to present its best defense, the Court finds that Philip Morris’ interest in disclosure of the redacted raw data outweighs the interest of the public in non-disclosure of that redacted data.2
IT IS THEREFORE ORDERED that respondent University of Southern California shall within 30 days of the date of this order deliver to Philip Morris, through its counsel herein, a complete set of the so-called raw data underlying the Fontham study (hereinafter “the disclosure”). That disclosure may take the form of actual paper copies or a computer disk containing the data. The disclosure and all documents contained therein shall be altered as follows: personal names, addresses, social security numbers, personal identification numbers, insurance policy numbers, specific places of employment, specific places of education, telephone numbers, and any other data which identifies or accesses the participant and/or her relatives, friends, employers or associates shall be redacted or removed from the disclosure before it is delivered to Philip Morris.
The disclosure shall be subject to the following protective order:
1. Neither defendant Philip Morris nor any other person or entity having access to the disclosure by virtue of this order shall attempt in any way, directly or indirectly, to ascertain the identity of any such Fontham study participant. Such attempts are hereby expressly prohibited.
2. Defendant Philip Morris and all other persons or entities having access to the disclosure by virtue of this order shall not use or disclose the subject documents for any purpose other than preparation for, and defense of, Murphy v. Philip Morris Incorporated, et al., (District of Nevada, Case No. CV-S-98-00021-PMP-(RJJ). Neither the documents nor their contents shall be disclosed to any persons other than the following: (a) outside counsel for defendant and their office staff, (b) outside experts engaged for purposes of the underlying litigation, and (c) the corporate officer of defendant responsible for the supervision of counsel and the conduct of the litigation. Each person having access to the documents shall first execute a non_disclosure undertaking (in a form to be mutually agreed upon by counsel for defendant, respondent USC, and intervenor State of California), which shall refer to this Order. In the event the contents of one or more of the documents are to be disclosed to a deposition witness, the witness shall first be informed, on the record, of the requirements of this Order and the witness’ obligation to comply with this order. Absent such agreement, no portion of the disclosure shall be shown to any deposition witness. Nothing herein shall prevent defendant from referencing or appending any portion of the documents in court submissions, but such submissions shall be made under seal.
3. Defendant Philip Morris shall return the subject documents, and all copies thereof in any form (except as may have been filed with the court or marked as exhibits), to respondent USC at the conclusion of all proceedings in Murphy v. Philip Morris Incorporated, et al., (District of Nevada, Case No. CV-S-98-00021-PMP-(RJJ).
4. Nothing herein shall be construed to restrict the authority of the presiding judge in the underlying case to make such other and further orders with respect to the documents as may be deemed appropriate under the circumstances; it shall be the responsibility of defendant Philip Morris promptly to notify counsel for USC and the State of California, respectively, of any such proposed change or changes so that they may have an opportunity to state their position(s) on such change or changes.
5. Defendant Philip Morris shall reimburse USC its reasonable expenses in complying with this Order.
This Court shall retain jurisdiction over the parties to this discovery proceeding for the limited purpose of overseeing compliance with this Order
JEFFREY W. JOHNSON
United States Magistrate Judge
1The Ninth Circuit Court of Appeals has not addressed this issue. See, e.g., Samuelson v. Susen, 576 F.2d 546, 549_550 (3d Cir. 1978) (Fed. R. Evid. 501 requires federal court to apply privilege law of state that forum state’s courts would choose to apply); Williams v. American Broadcasting Cos., 96 F.R.D. 658, 662 (W.D. Ark. 1983) (availability of journalist’s privilege determined after applying choice_of_law rule of forum state); but see Dixon v. Pine Street Corp., 516 F.2d 1278, 1280 (2d Cir. 1975) (in diversity case, issue of privilege governed by substantive law of forum state).
2During the hearings on this matter, this court also considered whether the alleged deleterious impact of environmental tobacco smoke has been reliably established by scientific research such that Philip Morris can not seriously litigate the issue in Murphy and therefore has less basis for compelled disclosure. However, this court concludes that the question of what evidentiary use or value Philip Morris is able to make of the Fontham raw data in the Murphy trial is to be determined by the trial judge. This Court will not interfere with those decisions.