Harvard Refuses Tobacco Subpoena

The University recently rebuffed the efforts of the tobacco industry to subpoena a half-century of Harvard research records.

According to University Attorney Diane E. Lopez, Harvard received a legal notice this fall from the industry’s lawyers asking for all the records from any federally funded scientific research involving smoking within the last 50 years. The subpoena also asked for documents on 54 specific research projects conducted by the University since 1961.

A spokesperson for the companies refused to disclose exactly how they planned to use the Harvard research.

However, the subpoena is part of the tobacco industry’s defense efforts against the ongoing lawsuit filed by the U.S. Department of Justice in the fall of 1999. The suit seeks billions of dollars in damages from the companies to reimburse the government for its expenditures on smoking-related health care costs.

In a letter last month responding to the subpoena, Harvard’s attorneys argued that releasing the information would violate the First Amendment rights of researchers—particularly the rights of confidentiality of researchers and research subjects.

Lopez noted that the U.S. Court of Appeals for the First Circuit accepted such an argument in a 1998 case rejecting a subpoena of research records by Microsoft. In that case, the software giant had sought records from David B. Yoffie, Starr professor of international business administration at Harvard Business School, and MIT Professor Michael A. Cusumano, to defend itself in the federal government’s anti-trust lawsuit.

The University’s letter also argued that collecting the requested documents would be very demanding.

“This is an incredibly burdensome request,” Lopez said. “It would be almost impossible to complete it.”

Lopez said that federal court rules allow parties not actually included in the lawsuit to reject “unduly burdensome” subpoenas.

A representative of the tobacco industry claimed that the subpoena should not be overly difficult to fulfill.

“The subpoena is very narrowly tailored,” said John Sorrells, a spokesperson for Phillip Morris, one of the tobacco companies sued by the government.

With the University’s refusal to provide the documents, the tobacco companies could now ask a judge to rule on Harvard’s objections and potentially force the University to comply.

“We intend to follow up on the subpoena,” Sorrells said. “When you get sued, you have to do what’s necessary to defend yourself.”

Harvard was one of eight universities served with subpoenas from the tobacco industry, Sorrells said.

The New York Times reported Sunday that all the universities have refused to turn over their research records except for North Carolina State University.

Sorrells said that the subpoenas against the universities are only small part of the “tremendous” amount of pre-trial evidence collection—a process that has produced “millions” of pages of documents.

—Staff writer Daniel P. Mosteller can be reached at dmostell@fas.harvard.edu.