Cancer, Chemicals and History
If it's unprecedented for companies to go after historians in the way Rosner and Markowitz have been attacked, it's also apparently unprecedented to subpoena and depose the peer reviewers who recommended that a university press publish a book. The Blackmar subpoena--"my first," she says--read: "You are commanded to appear" in US district court, and to "produce and permit inspection and copying" of all the material used in preparing the evaluation of the book manuscript, including "any original written, typewritten, handwritten, printed or recorded material...now or at any time in your possession, custody or control," including all e-mail.
Academics aren't used to being "commanded" to do anything, and are unlikely to have attorneys of their own to accompany them to depositions. In this case, since the book was co-published by the Milbank Fund, the fund provided the subpoenaed historians with attorneys from Milbank, Tweed, the blue-chip Wall Street global legal powerhouse. At the depositions, each historian faced attorneys for fifteen different chemical companies. One of the key questions was whether those who recommended the book for publication had checked the footnotes. That would have been a big job: Deceit and Denial has more than 1,200 footnotes, many citing more than one source. The prevailing practice at university presses is that manuscript reviewers are not expected to check footnotes; Lynne Withey, director of the University of California Press, asked, "How could you expect people to do that?" In fact, the documents in Rosner and Markowitz's footnotes were checked thoroughly before publication by attorneys for both PBS and HBO: PBS ran a Bill Moyers documentary in 2001 on cancer caused by chemicals in consumer products, based on Rosner and Markowitz's research; and HBO ran an award-winning documentary in 2002, Blue Vinyl, based on some of the same research.
What's the point of deposing manuscript reviewers for university presses? Blanche Wiesen Cook, Distinguished Professor of History at the Graduate Center of the City University of New York, former vice president for research of the AHA, award-winning biographer of Eleanor Roosevelt and one of the historians who were deposed, called it "harassment to silence independent research" and an effort to create "a chilling effect on folks who tell the truth."
What's it like to be deposed in this situation? Markowitz's deposition lasted five and a half days. He said, "You face fifteen or sixteen lawyers, none of whom like you, and all of whom are trying to trick you." Cook's deposition took only an hour, but it was "an hour of battering and legal tricks, and the goal was to trip you up and get you confused," she said. "They kept asking me how long I had known Gerry Markowitz. I said, 'Are you asking if I had an affair?' They said, 'No, why are you asking that?' I said, 'Where I come from, that's the implication of your question.' They said, 'Where do you come from?'" This seems pretty far from the question of vinyl chloride and cancer.
Scholars like Cook and Blackmar who review manuscripts for university presses don't do it for the money--UC Press typically provides $300 in free books or $150 in cash--but rather out of a sense of obligation and duty; they certainly don't expect to have to defend their recommendation under oath in the face of hostile questioning from a dozen corporate lawyers. Should UC Press have done more to protect its manuscript reviewers and its review process? Should it have resisted the subpoena for the reviewers' names and information? UC Press director Withey says that if this had been the typical manuscript where the reviewers had been promised confidentiality, "I would not have revealed names of reviewers. That would have gotten us into a sticky situation, I'm sure." William Forbath, Lloyd Bentsen Professor of Law at the University of Texas, says any effort to resist a subpoena for reviewers' names and information would have been "in vain." If the information in question is relevant to the case, he says, "there is no general privacy privilege outside of the attorney-client privilege, the spousal privilege, the doctor-patient privilege and the priest-penitent privilege--that exhausts it. The publisher promises its manuscript readers confidentiality, but that doesn't count for squat in the context of a legal proceeding."