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

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.