that time shamus’ field notes got subpoenaed
Shamus Khan, author of Privileged, was subpoenaed for his field notes. In Sociological Forum, he recounts what happened. A young woman alleged an assault at the school where Shamus was a student and later spent time doing field work. The young woman and her attorney wanted field notes to help them establish a pattern of neglect on the part of the school in regards to assault.
The subpoena of documents raises all kinds of problems. Researchers often promise confidentiality to their subjects and if lawyers can subpoena field notes, future researchers may find it difficult to recruit subjects. Fortunately, the plaintiff’s legal team backed down after Shamus and his representative noted that his field notes might not support their case.
Shamus takes away a few lessons from this. First, few academics can really absorb the cost of a subpoena. Independently well-off, Shamus could afford a good attorney, but many of us could not. Second, he was pleasantly surprised to find out that such events are rare. Scanning the literature and his network of ethnographers, he found very few cases of field note subpoenas. Third, most institutions will not help you manage the legal implications of research. Neither his employer (Columbia) or the PhD institution (Wisconsin) would help out. Fourth, he offers some recommendations to help shield field notes and other research materials from legal investigation.
Here are my take-away points: The up side is that few ethnographic projects raise these issues. So, the risk seems low. Another take home point is about solutions. While it would be valuable to have some sort of disciplinary discussion about standards, I would be hesitant to recommend an insurance program (i.e., researchers pool money together) because then you might accidentally encourage people to take on riskier ethnographic work. Finally, I think in most cases, I would do what Shamus did and try to resist subpoena but in extreme cases, such a homicide investigation, I might be less resistant.
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I think it is important to work through more thoroughly what actually could entail risk. I am in the process of seeking insurance for a book project which by all rights should not actually raise any issues. However, the publisher has rights to market the book in other jurisdictions, which can open one up to legal liability one may never have anticipated (see, for example, the Deborah Lipstadt case covered in the film “Denial”). I don’t yet know if I can afford the coverage, but I certainly would not be able to afford the legal fees.
Insurance only makes people do riskier things if the insurance companies let it. So, for example, if people whose homes get flooded can continue to get flood insurance after the flood, they may keep living there and roll the dice. In contrast, if the flood insurance program pays out only on condition that you moved, and did not continue to insure people in areas where flooding is consistently expected, it can actually REDUCE the chance that people live in risky areas. Thus, by analogy, an insurance program for researchers might have the effect of discouraging particularly risky research. On the whole, though, I am in favor if it, because most of us don’t even know what risks we are taking when we publish.
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Mikaila
January 9, 2019 at 8:39 pm
You raise, as usual, very good points. One question: if insurance becomes standard for certain types of academic work, would we then be handing over some power to insurance companies?
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fabiorojas
January 9, 2019 at 10:16 pm
We would, which is why I liked Shamus’s idea of some kind of self-insured retention pool administered by disciplinary associations. A lot of details to be worked out, to be sure, but if our institutions won’t protect us we need to find a way to protect ourselves.
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Mikaila
January 9, 2019 at 10:36 pm
Thanks for bringing more attention ot this, Fabio. I should note that while the general counsel office did not financially aid me, my vice president went around them to help. But still, the potential costs of defense (10-15k at a minimum) were really astonishing. I think some lawyers are going to be writing about this soon, which sshould be interesting. I also think it’s worth noting that IRBs requirement of destroying fieldnotes may do harm to general knowledge, and to ethnography more generally. It’s not clear that it should be required.
The flood insurance analogy is super interesting… not something I’d thought of before.
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shakha
January 10, 2019 at 4:55 pm
@Mikaila
Deborah Lipstadt called David Irving a Holocaust denier. That that may lead to legal liability was not difficult to anticipate. As long as you don’t write anything that can be construed as libel against specific individuals I don’t see why you’d need insurance for a book project. I also don’t see why anyone would include anything that may be construed as libel in a book of sociological scholarship.
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Mark
January 13, 2019 at 8:39 pm
@Mark: have you ever heard of Lèse-majesté laws? In Thailand, for instance, anything that might be considered a criticism of the Thai king/queen can result in criminal charges. An American was sentenced to 2.5 years in prison for posting a link to a book on his blog (see https://freedomhouse.org/article/us-citizen-joe-gordon-sentenced-under-thailand-s-lese-majeste-laws). That is just the most obvious example, but as someone writing about comparative law, I know the first mistake you can make is to assume that your own understanding of law in your own individual context is complete.
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Mikaila
January 13, 2019 at 11:41 pm
Many of theses issues are discussed Steven Lubet’s recent book “Interrogating ethnography. Prof Lubet, who teaches law, reports other cases besides Khan’s and makes a number of interesting observations (although the book could be construed as a thinly veiled opportunity to express his gripe about Alice Goffman’s On the Run).
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Davide Nicolini
January 14, 2019 at 10:58 am
@Mikaila
I am familiar with Lèse-majesté laws in general and with Lerpong Wichaikhammat (aka Joe Gordon) in particular. Lerpong Wichaikhammat’s case is irrelevant here because 1) he did not suffer legal consequences because of research and 2) he broke well-known laws (that those laws are illiberal and undemocratic is beside the point here). His case does in no way compare to Khan’s or Lipstadt’s cases.
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Mark
January 16, 2019 at 8:46 pm
I did not suggest it compares. I suggested it is a case which illustrates ways in which sociologists might end up in a situation in which they are exposed to legal liability. If your perspective is that sociologists should never do or say anything that might expose us to legal liability anywhere in the world, that would remarkably constrain our ability to engage in scholarship on a wide range of issues that are incredibly important.
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Mikaila
January 16, 2019 at 11:54 pm
@Mikaila
If you didn’t mean to suggest that Lerpong Wichaikhammat’s case compares why did you bring it up? What incredibly important sociological research has actually resulted in sociologists facing legal liabilities?
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Mark
January 17, 2019 at 10:06 pm
Something can be relevant without being comparable. And the answer to your second question is the original post. Anyone who thinks that researchers do not face legal risks is, of course, free to ignore them. But publishers would not require authors to indemnify them if the publishers’ risk-management attorneys did not think there were potential legal risks. And I think all of us deserve just as much of a change to mitigate risk as the publishers have.
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Mikaila
January 18, 2019 at 3:01 am