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LOS ANGELES � The California Supreme Court appeared to dance a fine line Tuesday in a defamation suit against two academics who allegedly tricked the former foster mother of a research subject into revealing secrets about her. The “sticking point,” as Justice Carol Corrigan put it during the oral argument, was whether researchers go too far if they lie to gather personal information about a study subject. In this case, the two defendants were trying to refute the conclusions of another researcher with whom the plaintiff had originally cooperated. “Why not just tell the truth?” Corrigan asked attorney Thomas Burke, whose clients were sued for defamation and invasion of privacy for publicly critiquing a psychological case history. The controversial case has allied some scientists and journalists, who are concerned a ruling in the plaintiff’s favor might end up chilling research and newsgathering efforts. On Tuesday, the justices appeared to be trying for a delicate balance that would ensure individuals’ privacy rights while not imperiling researchers’ scientific inquiries. Burke, a partner in Davis Wright Tremaine’s San Francisco office, represents UC-Irvine professor Elizabeth Loftus and Melvin Guyer, a psychiatry professor at the University of Michigan, both renowned critics of repressed memory therapy. They were sued after writing a two-part article in 2002 that sought to debunk the case of Nicole Taus, a research subject who had claimed repressed memories of childhood sexual abuse and who had remained anonymous until filing her lawsuit.
Davis Wright Tremaine partner Thomas Burke argued in court Tuesday that to let the suit proceed would greatly expand the tort of intrusion to include comments by third parties.

Taus, now a Navy lieutenant, had been the subject of a 1997 case history by therapist David Corwin, who had interviewed Taus when she was 6 years old and again at age 17. Taus was identified only as “Jane Doe,” but photos of her, along with Corwin’s report of her allegedly repressed memories, were widely distributed in psychiatric circles. Loftus and Guyer questioned Corwin’s conclusions and began digging into Taus’ past for contradictory information. They even hired a private investigator and eventually contacted Taus’ foster mother, allegedly with Loftus posing as Corwin’s supervisor. Taus went public about her identity in 2003 when she filed suit against Loftus and Guyer in Solano County Superior Court. She was upset that the professors hadn’t obtained her consent before proceeding with their research, and was angry that their report � while not naming her � contained allegations by her foster mother that Taus had been a troubled teenager who slept around and used drugs. Loftus and Guyer tried to have the case dismissed as a strategic lawsuit against public participation, but were rejected last year by the First District Court of Appeal. The appeal court said Taus had presented evidence that Loftus and Guyer “used deception and trickery to penetrate a zone of privacy surrounding Taus’ close family members in order to obtain private information … that would not have been disclosed in a truthful encounter.” Several amici curiae, including the National Committee of Scientists for Academic Liberty and an assortment of media organizations such as the Los Angeles Times, Hearst Corp. and the New York Times, said the ruling threatens to stifle scientific inquiry and impinge on newsgathering functions. “The court of appeal’s decision,” the media groups argued in their brief, “provides a roadmap for would-be plaintiffs who seek to curtail subsequent adverse press reports about them.” On Tuesday, Corrigan and most of the other Supreme Court justices pounced on the issue of deception. While they had sympathy about the importance of critical debate in scientific research, they seemed to feel that test subjects are entitled to a certain amount of privacy when it comes to their personal lives. Corrigan asked Burke whether he felt that once someone opens themselves up to scientific research, they have no “reasonable expectation” that subsequent researchers will not expose more information. Burke said Taus and other test subjects should have no control over information that might be gathered in an effort to refute original findings. Furthermore, he argued, the information Loftus and Guyer got came from Taus’ foster mother, not from her. In court documents, Burke also argued that Taus wasn’t seeking to protect her privacy but to squelch subsequent research about her case, “to control who may publicly disclose information about her and what they may say about it.” Burke added in court Tuesday that to let Taus’ suit proceed would greatly expand the tort of intrusion to include comments by third parties. Taus’ lawyer, Julian Hubbard, a partner in Redwood City’s Hubbard & Ebert, disagreed. Research by deception, he said, is a “highly offensive” act of intrusion. Justice Marvin Baxter asked Hubbard whether Taus could have sued if the researchers simply went through her foster mother’s trash and found personal information that they later disclosed. The trash, he noted, wouldn’t have been Taus’ property. Hubbard said Taus could sue in that circumstance if, in fact, personal details of her life were revealed against her wishes. Justice Kathryn Mickle Werdegar seemed to believe the whole issue could be resolved with a protocol rule that tells scientists what they can’t do from the get-go. “What is the rule you would have us lay down?” she asked Hubbard, who answered by saying a protocol rule should take into account the degree of intrusion, how the information was used, the relationships of the individuals involved and the severity of the deception. A ruling in Taus v. Loftus, S133805, is expected within 90 days.

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