A journal received a manuscript in July concerning the conditions surrounding the ending of an individual’s contract of employment. Following peer review and revision, the manuscript was accepted and published in October of the same year. Two years later, the journal received a letter from a lawyer representing a client who was suing the former employer discussed in the article. The author of the article had consulted with the employer’s team about the circumstances. Through discovery in a lawsuit, the lawyer obtained a copy of the email from the journal's editor-in-chief and associate editor to the author, forwarding comments from the reviewers of the article under review. The lawyer wanted to contact the reviewers to better understand their comments, since the conclusions of the article had a bearing on an issue in the litigation. The lawyer said that they understood that the review process was designed to be anonymous; however, in cases where the comments were potentially relevant to subsequent litigation, that waiving of anonymity could become necessary.
The lawyer informed the journal that they planned to proceed with a formal subpoena for this information if it is not provided by a certain date.
Questions for COPE Council
- Does the journal have an obligation to disclose the peer reviewers to the lawyer?
- Is pending litigation sufficient reason to divulge information understood to be confidential?
- Are there any precedents the journal could follow?
Advice on this case is from a small number of COPE Council Members. Most cases on the COPE website are presented to the COPE Forum where advice is offered by a wider group of COPE Members and COPE Council Members. Advice on individual cases is not formal COPE guidance.
Council’s first recommendation would be to seek legal advice as things can be very different depending on the jurisdiction in which the journal is published and location of the complainant. Starting actions across national borders is complex and costly.
Council would suggest that there is no obligation to disclose the names of the peer reviewer to the lawyer. If the journal's policy is that the information is confidential, at a minimum, we would suggest not disclosing that information unless compelled to do so under force of law. It would not be enough merely to be told that a lawyer will get a subpoena; you should expect a subpoena with proper service from binding authority (not just mailed from a court of law that does not have personal jurisdiction over the journal and/or its corporate parent).
If the lawyer does get a subpoena, the journal could take the position that it will comply with this demand or it can file a motion to oppose the subpoena. There is some precedent for courts upholding a journal's right to preserve the confidentiality of its peer reviewer process (see an example here).
If the journal has a policy of referee confidentiality, then it is the responsibility of the journal and publisher to uphold and protect against disclosure. In holding the line on this, not only is the journal defending these particular reviewers from what might be a very intrusive experience but the journal is also protecting their ability to withhold reviewer information from any and all future requesters who might have arguably 'good' reasons for seeking disclosure.
Related COPE resources:
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COPE discussion document Who owns peer review?
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Ethical guidelines for peer reviewers.