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When researchers rely on others to provide foundational data for research, they may often need to assure these sources that their identities and identifiable data will be kept confidential. Confidential firsthand reports are essential tools for enabling researchers to explore a plethora of important questions in such areas as health, economics, and public policy. Given their availability to the public, as well as to legislators and other policy makers, such reports may advance measures to ameliorate a variety of serious problems. Unfortunately, even the most objective research may be put at risk if it becomes bogged down in the muddy fields of litigation. A subpoena for confidential data is likely to be intimidating to a researcher regardless of his level of confidence in his objective evaluation of the data. The average researcher is illprepared for the sudden interference of a subpoena or the blocking tactics of an adversary flanked by expert witnesses. Yet, subpoenas are an omnipresent threat in all kinds of cases, from a products liability case against a cigarette manufacturer to a criminal prosecution of a prostitute. But what makes a subpoena excessive? There is no simple definition, nor bright-line rule; rather, the determination involves weighing various factors: the public interest served by the research project versus the public or private interest that prompted the subpoena; the importance of guaranteeing confidentiality in gaining access to essential information and scholarly research versus an alleged right to know the identity of the confidential sources or to review the research data.

Countering the Excessive Subpoena for Scholarly Research