In November 1982, the Dow Chemical Company was desperately attempting to discredit the work of James R. Allen, a professor and researcher at the University of Wisconsin, Madison.

They almost succeeded.
19800215_Science_Allen Ski Trip

A number of doctoral students in his laboratory had been conducting a long-term study on the health effects of very low levels of TCDD (dioxin) in a colony of monkeys. These were the first extensive studies on the effect of TCDD on primates and was expected to guide government regulation of pesticides and also municipal incinerators.

Preliminary information from the Allen laboratory indicated that the studies were showing that even minute levels of TCDD far below those found in commercial herbicides and considerably below those found in the Agent Orange used during the war in Southeast Asia. If the data reported in the final publication confirmed these preliminary findings, there would be serious economic consequences because all of the trichloro-phenoxy herbicides, including those commercially manufactured by the Dow Chemical Company were contaminated to a greater or lesser degree with TCDD.

Award of the doctorate degrees to the graduate students in the Allen laboratory depended on publication of their research findings in a peer-reviewed journal.

The subpoena duces tecum. “Give us everything!”

The Dow Chemical Company prevailed upon an administrative judge conducting hearings on commercial phenoxy herbicides in Washington, DC to issue a subpoena duces tecum requiring the production of all the raw data and laboratory records of Allen and all of the scientists and graduate students working in his laboratory. Unfortunately for the graduate students, peer-reviewed journals have a policy of refusing to publish research which has been previously published or publicly distributed. Had the Dow Chemical Company been able to present these preliminary findings and the data in the EPA administrative proceeding, the study would never be published in a peer-reviewed journal and the graduate students would never obtain their doctorates.

The stakes were high when Yannacone was asked to step in and try to quash the subpoena and protect the student’s data prior to publication. Yannacone went to the federal court in Madison, Wisconsin and convinced the judge that the real parties to the proceeding were the Vietnam combat veterans for whom the results of the studies on dioxin toxicity were a matter of life and death. The court agreed and allowed Yannacone and the Vietnam combat veterans to represent the interests of the graduate students in their data. Yannacone did and the court quashed the subpoena.

Dow immediately appealed to the United States Court of Appeals for the Seventh Circuit and after lengthy argument, the Court ruled that the students have an absolute right to the privacy of their laboratory notebooks and data prior to publication; a milestone in the history of protecting the integrity of scientific research.

But the story does not end here

Under the federal court rules, the party successfully quashing the subpoena is entitled to legal fees and expenses for the effort. Yannacone and the veterans applied for those legal fees and the attorneys who had prepared the improper subpoena opposed the application.

The question, “How much is protecting the integrity of scientific research worth?” was answered by the court largely on the strength of Yannacone’s letter responding to the imperious demands of the Dow attorney for evidence of Yannacone’s accomplishments as a lawyer.

Here is the exchange of correspondence.
K&E_Correspondence_USDJ Crabb

The final outcome

Before Judge Crabb had an opportunity to rule on the Yannacone fee request, it appears that copies of the foregoing correspondence became widely circulated without any attribution at a number of American Bar Association Committee meetings attended by the corporate bar throught the nation. Shortly thereafter a messenger appeared at the Yannacone law office in Patchogue, N.Y. and delivered a check from Kirland & Ellis in the full amount of the Yannacone fee request. There was no covering letter.