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Dow Chem. Co. v. Allen

ELR Citation: 13 ELR 20444
Nos. No. 82-2013, 672 F.2d 1262/17 ERC 1013/(7th Cir., 02/25/1982)

The Seventh Circuit affirms a district court's refusal to enforce administrative discovery subpoenas for data from incomplete university studies of pesticide toxicity. The Environmental Protection Agency (EPA) scheduled cancellation hearings for certain Dow Chemical herbicides based on a University of Wisconsin study of the high toxicity of 2,3,7,8-tetrachlorodibenzo-p-dioxin (TCDD or dioxin), which the herbicides may contain. In preparation for those hearings, Dow sought data and working papers from two incomplete University of Wisconsin dioxin studies. An administrative law judge granted Dow a subpoena, but the researchers refused to yield their materials, and a district court refused to enforce the subpoena. The Seventh Circuit notes that the district court's grounds for refusing enforcement were limited, but that the court could properly consider the authority of the Agency to issue the subpoena, the definiteness of the demands, the relevancy of the material, and the burden on the party served. The court rejects Dow's argument that the degree of burden should only be a factor in considering whether to grant a protective order once the subpoena is enforced, Using a "clearly erroneous" standard of review, the circuit court upholds the district court's findings that the data requested was too preliminary to have probative value in the cancellation hearings, and that, as a result, Dow's need for the data was not great. Though the district court spoke of taking judicial notice of the burden that the subpoena would have on the researchers, the circuit court holds that evidence in the record supports a finding of burdensomeness. Further, in weighing the burden of the subpoena, the district court could have considered the intrusion into the researchers' academic freedom as protected by the First Amendment. The district court also could have considered the researchers' status as third parties to the proceeding. Finally, the district court did not abuse its discretion in finding that a protective order would not ease the researchers' burdens. The circuit court thus affirms the district court.

In a concurring opinion, Judge Pell disapproves of the majority's invocation of academic freedom as an alternative ground for refusing enforcement. Also, Judge Pell emphasizes that should EPA rely on the subpoenaed studies at the hearings, Dow should be allowed access to all documents associated with the studies.

The full text of this opinion is available from ELR (30 pp. $4.25, ELR Order No. C-1297).

Counsel for Appellant-Intervenor
William P. O'Neill, Edward W. Warren
Kirkland & Ellis
20 E. Randolph Dr., Chicago IL 60601
(312) 861-2000

Counsel for Appellees
Robert K. Aberg
Aberg & Jorgensen
P.O. Box 2157, Madison WI 53701
(608) 251-7600

David T. Buente Jr.
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2281

Counsel for Appellees-Intervenors
L. Steven Platt
19 W. Jackson Blvd., Chicago IL 60604
(312) 236-0415

Victor J. Yannecone
Yannecone & Yannecone
P.O. Drawer 109, Patchogue NY 11772
(516) 654-2662

Fairchild, J.