Expert Witness and Manuscript

Over at the Chronicle of Higher Education, they have an article about a lawsuit between Robert N. Proctor and the tobacco industry. The details are scanty in the part of the article that is not behind the subscription barrier, but Proctor serves as an expert witness in cases dealing with the tobacco industry. His opponents want to subpoena a manuscript of Proctor’s, and Proctor wants them to wait for publication like everybody else.

Since I don’t have the full article, I’ll have to state this conditionally. If Proctor has refrained from mentioning the forthcoming book in his expert reports, depositions, and testimony, he should prevail and be able to keep the manuscript to himself until publication. If not, though, his opponents have a right to have a look at the material that has been cited as part of what makes Proctor an expert.

This was seen back in the Kitzmiller v. Dover Area School District case, when William Dembski famously bragged about his qualifications, including those of editing the then-forthcoming textbook from the Foundation for Thought and Ethics, The Design of Life. The plaintiffs issued a subpoena for the unfinished manuscript and got it. Experts have to tread carefully if they wish to keep particular parts of their work private, and it all depends on how well they have done so as to whether they get to hold tight, or are forced to cough it up.