Litigation associated with the BP oil spill in the Gulf of Mexico has taken research, proprietary information from outside researchers

By Janet Raloff

Web edition: June 7, 2012

“A situation has arisen involving scientists at the Woods Hole Oceanographic Institution (WHOI) that should concern all those who value the principles of academic freedom and responsibility.” So begins a warning issued this week by WHOI Director Susan K. Avery and the organization’s research director, Laurence P. Madin. They were responding to a court order requiring that two WHOI scientists turn over 3,500 e-mails and other documents to BP. Included in the information was intellectual property that outsiders could exploit.

Last December, lawyers for the company responsible for the biggest oil spill in U.S. history subpoenaed information from WHOI on flow-rate measurements its scientists had made of the leaking well. BP argued that it needed the information to better understand those assessments as it prepared to contest lawsuits associated with the spill.

Despite turning over “everything BP would need to analyze and confirm or refute the findings,” Avery and Madin say, BP demanded much, much more: “any transmission or exchange of any information, whether orally or in writing, including without limitation any conversation or discussion…” surrounding the flow-rate assessments. WHOI fought this demand for its scientists’ e-mail communications, notes and manuscript drafts. But a judge sided with BP.

“We are accused of no crimes, nor are we party to the lawsuit,” WHOI scientists Christopher Reddy and Richard Camilli note in an Op-Ed piece that ran June 3 in the Boston Globe. However, they observe that insufficient laws and legal precedent allow a wholesale invasion of a researcher's private information. It’s this “lack of legal protection that has us concerned,” they say.

They’re concerned that personal information has been handed over to a big multinational to scrutinize or, potentially, to report as it chooses. They’re concerned that candid discussions about the quality of their data and the deliberative process used to analyze their data might be taken out of context.

But money is also potentially at stake, they note. BP now has access to the intellectual property described in or attached to the surrendered e-mails, “including advanced robotic navigation tools and sub-sea surveillance technologies that have required substantial research investment by our laboratories and have great economic value to marine industries such as offshore energy production.”

Note Avery and Madin, “experts in the litigant parties receiving these materials may obtain insight into the creation of this intellectual property and be able to replicate it for their own programs…”

As it stands, argue Reddy and Camilli, “the burden is left entirely to us, a single academic research organization, to police the use of our intellectual property by one of the largest corporations in the world.”

Who can blame BP's lawyers for asking for the moon? That's their job, as any student of TV's Law & Order franchise well knows. I don't doubt that WHOI is concerned about some outside organization capitalizing on its intellectual property (without paying for the privilege) — a quite understandable fear. But the headline on both the WHOI statement and Boston Globe piece really point to the organization's principle worry: that releasing not-ready-for-prime-time correspondence and drafts will allow outsiders to peer into the not always pretty world of developing data and assessing its quality. And that problem principly exists because so few outsiders understand the process — there being no procedural-science show on TV equivalent to the family of Law & Order shows.

In any case, WHOI doesn’t want to have to fight this legalized invasion of its linens (dirty or or clean) alone. Or to see this new precedent go unchallenged. Avery and Madin ask others — especially in the scientific, legal and political arena — to “support the establishment of adequate protections for researchers and their institutions.” Not doing so, they charge, risks compromising “the freedom of the nation’s scientific enterprise.”

The last argument may be a bit hyperbolic. But there’s no reason a judge couldn’t have demanded a nuanced mining of WHOI data, e-mail chatter and intellectual property — and promised sanctions for any potential exploitation of proprietary data and/or technology. It’s lobbying for such limits that WHOI’s sister organizations and all research societies should now consider.