Dow permits plaintiff's attorneys to obtain and present the testimony of two individuals who have reviewed the animal studies at issue, in connection with their participation as expert witnesses in product liability actions against Dow.
Plaintiff has proffered that Dr. Marc Lappe, Professor of Health Policy & Ethics at the University of Illinois in Chicago, and Thomas Talcott of Talcott Development Inc., Tustin, California, are prepared to offer testimony that disclosure of the records will not cause Dow substantial competitive injury. These two individuals are restrained from offering such testimony by protective orders that were entered into at Dow's insistence in product liability cases in which they participated as witnesses.
Plaintiff argues that because the Court is precluded from obtaining potentially important information due to Dow's refusal to waive the protective orders or to consent to any in camera procedure, the Court should exercise its discretion to strike Dow's affidavits. Plaintiff asserts that his position is supported both by the Federal Rules of Evidence and by the FOIA case law in this Circuit.
Dow opposes plaintiff's motion on the grounds that it is tantamount to a request that his attorneys and experts have access to the disputed documents themselves, a notion which has been rejected by the Court of Appeals. See Arieff v. U.S. Dept. of Navy, 712 F.2d 1462 (D.C.Cir. 1983). According to Dow, plaintiff is only entitled to the procedures set forth by the court in Vaughn v. Rosen, 484 F.2d 820 (D.C.Cir. 1973), cert. denied, 415 U.S. 977, 94 S. Ct. 1564, 39 L. Ed. 2d 873 (1974). Dow asserts that they have provided plaintiff with an adequate Vaughn index and, therefore, plaintiff's motion must be denied.
The Court accepts plaintiff's proffer as to the testimony he would offer from the two potential experts. Such testimony would be extremely useful in assisting the Court in its de novo determination of the commercial value of the animal studies at issue. Dr. Lappe has a doctorate degree in experimental pathology and extensive experience in reviewing and evaluating scientific studies. See Curriculum Vitae of Dr. Mark Lappe, Plaintiff's Exhibit L. Mr. Talcott, who operates a research and consulting firm, worked for Dow for 24 years until he resigned in 1976. While at Dow he was involved in the development of Dow's silicone gel. He has since worked at several other companies where he has overseen the research and development of silicone breast implants. See Affidavit of Thomas Talcott, Plaintiff's Exhibit M. Clearly, both men could offer valuable insight on the commercial value of the animal studies to Dow's competitors.
Despite Dow's protestations, this case is not governed by Arieff. In Arieff, a journalist sought to require disclosure of information as to prescription drugs supplied by the Navy to the Office of Attending Physician to the United States Congress. The district court granted summary judgment to the Navy. After reversing the district court on the merits, the Court of Appeals declined to rule that the trial judge had abused his discretion in denying plaintiff's expert access to an in camera affidavit that the Navy had submitted, stating:
Citizens whose personal privacy or commercial data is at issue, foreign governments that may have provided secret information to our Executive Branch, and for that matter, the officials of our Executive Branch itself, will hardly have the assurance which it is the purpose of the FOIA exemptions to provide if hostile counsel and experts can ordinarily obtain access to assertedly exempt information. Even assuming that the trial courts which permit such access will invariably be correct in their prior assessment that the favored counsel and experts are reliable and that violations of the protective order will be detectable, this is a matter in which appearance is as important as reality. The appearance, overall, will be that even in the process of sustaining an exemption the secrets to which it pertains will be compromised.