## Facts

- University of Wisconsin researchers conducted four animal toxicity studies involving dietary ingestion of TCDD by rhesus monkeys at 500 ppt, 50 ppt, 25 ppt, and 5 ppt.
- The EPA relied in part on evidence from the 500 ppt study to order emergency suspension of certain uses of two Dow-manufactured herbicides and to schedule cancellation hearings.
- To prepare for the EPA cancellation hearings, Dow sought disclosure of “all of the notes, reports, working papers, and raw data” relating to the lower-dose 25 ppt and 5 ppt studies, which were ongoing and incomplete.
- An EPA Administrative Law Judge, over EPA counsel’s objection, issued administrative subpoenas to the researchers for the requested materials.
- The researchers refused to comply; the United States sought enforcement in federal district court.
- Vietnam veterans and families of servicemen intervened supporting the researchers; Wisconsin participated as amicus curiae raising academic freedom concerns.
- The district court refused to enforce the subpoenas as unduly burdensome and of questionable relevance given the preliminary nature of the data.
- Dow appealed.

## Issues

1. Whether administrative subpoenas could compel non-party university researchers to produce all notes, working papers, reports, and raw data from ongoing, incomplete TCDD studies for use by a private corporation in EPA cancellation proceedings.
2. In subpoena-enforcement proceedings, whether a district court may weigh agency authority, definiteness, relevance, and burdensomeness (including third-party status and academic freedom concerns), rather than deferring burden considerations to post-enforcement protective orders.

## Decision

- The Seventh Circuit affirmed the district court’s refusal to enforce the subpoenas.
- The court held the district court could consider authority, definiteness, relevance, and burden when deciding enforcement.
- The court upheld findings that the requested materials were too preliminary to have significant probative value in the pending cancellation hearings and that Dow’s need for them was limited.
- The court agreed the subpoenas imposed substantial burdens on ongoing research, and that the district court did not abuse its discretion in concluding protective orders would not adequately reduce those burdens.
- A concurrence agreed with affirmance but cautioned against treating academic freedom as an independent ground and noted Dow could be entitled to access if the EPA later relied on the studies.

## Legal Principles

- In enforcing an administrative subpoena, a district court may assess: (1) the agency’s authority, (2) the subpoena’s definiteness, (3) the relevance of demanded materials, and (4) the burden imposed on the recipient.
- Burdensomeness is part of the enforcement inquiry and need not be postponed until consideration of protective orders.
- Courts may deny enforcement where demands for broad categories of materials from non-party researchers would significantly disrupt ongoing studies and the requested information is preliminary and of limited evidentiary value to the agency proceeding.
- Potential intrusion on academic freedom may be considered within the burden analysis, particularly when compelled disclosure targets unfinished scholarly work.

## Conclusion

The Seventh Circuit held that, on the facts presented, forcing non-party university researchers to disclose raw, unfinished study materials through EPA subpoenas was unwarranted because the requests were excessively burdensome relative to their limited relevance and probative value in the pending cancellation hearings, and protective orders would not sufficiently mitigate the disruption.


Dow Chem. Co. v. Allen, 672 F.2d 1262 (7th Cir. 1982)