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NHL’s subpoena requests regarding CTE: Valid production request or invasion of privacy?

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13 February 2017

Beginning in September, 2015 the National Hockey League issued subpoenas to two doctors at Boston University’s Chronic Traumatic Encephalopathy Center (Boston CTE) in order to compel production of the center’s research related to the league’s concussion litigation. In October 2017, the NHL issued another subpoena, seeking information regarding Lazarus Zeidel — who was added as a named plaintiff in the concussion lawsuit against the league after being diagnosed with CTE in a post-mortem analysis of his brain.

While the league argued that the request was made on a need for additional information regarding Zeidel, Boston CTE maintains that the request “goes far beyond that. . . and is asking for information and documental related to all aspects of the center’s work on the disease.” Further, the university alleged that “[i]n sum, the subpoena demands a step-by-step accounting of the nature of every researcher’s scientific inquiry into the study of chronic traumatic encephalopathy, complete with examples of findings involving individuals (or their families) who were given every expectation of privacy.” Notably, the league requested medical records, interview notes, and autopsy records related to Zeiden and “other hockey players, including NHL players, and other athletes.” The request also sought all communications regarding the center’s CTE research, and documents related to its methodologies, findings, and hypotheses.

In its strike back against the NHL, Boston CTE argued that producing the requested materials would violate the privacy rights of the research subjects. The opposition stated that "[t]here is no practical way to provide the information requested without invading researchers’ and research subjects’ privacy, imposing a burden on the center that will functionally prevent it from conducting any work, and creating a chilling effect on research in this field, at Boston University and elsewhere.” Even though Boston CTE has complied with a number of production requests, it refuses to produce any material containing personal information without a signed medical release of the individual player’s family.

In response to Boston CTE’s failure to comply with the production requests, the NHL argued that this information is valid third-party discovery, as the information is relevant to the player’s claims against the NHL, which allege a connection between head trauma in hockey and CTE (along with other neurological conditions). Gary Bettman, NHL Commissioner, has denied a link between hockey and CTE, and argues that there is no established scientific connection between the two. The league’s own expert submitted a declaration to the court, questioning Boston CTE’s finding that “deceased Pittsburgh Steelers Hall of Fame football player Mike Webster suffered from CTE, saying the evidence published was inconclusive.

On Monday February 6, 2017, Boston CTE noted that no single publication lays out the connection between hockey and CTE, and understanding the link between the two is the “result of numerous studies into different aspects of the disease performed by the center and other researchers around the world.” Further, the opposition stated that “[t]he NHL’s assertion that it needs all of the CTE Center’s research materials and unpublished data to ‘probe the scientific basis for published conclusions’ and ‘confirm the accuracy of published findings’ defies logic and common sense. The published science speaks for itself.

Also, Boston CTE noted the practical difficulties that the NHL’s production request implicates, arguing that producing the requested information in an anonymous form would be too onerous, and would bring the center to a “grinding halt.

If the league’s motion is granted, Boston CTE research subjects face having their private medical information unveiled. However, if the motion is denied, the NHL risks facing a plurality of lawsuits, without having the adequate knowledge and information regarding the connection between hockey and CTE.

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