According to an attorney representing CrossFit, yesterday Judge Joel Wohlfeil of the San Diego Superior Court decided that the National Strength and Conditioning Association (NSCA) must turn over to CrossFit the names of peer reviewers of “Crossfit-based high-intensity power training improves maximal aerobic fitness and body composition,” by Jan. 26. The names will be revealed under a protective order, the lawyer said, meaning CrossFit and the other defendants will see them but cannot disclose them to others.
The paper, which was retracted last year, originally appeared in 2013 in the Journal of Strength and Conditioning Research, which is published by the NSCA. The article has been central to multiple lawsuits, between NSCA and CrossFit and other parties as well.
The ruling, finalized after a hearing yesterday, may establish a new legal approach to breaching reviewer confidentiality.
In the suit, NSCA alleges that CrossFit employees defamed it in blog posts and other comments made over several years. The comments relate to CrossFit’s stance that NSCA corrupted the peer review process for the retracted JSCR article by inserting bogus injury statistics. CrossFit has also tried to unmask the reviewers in another lawsuit with the NSCA, but was unsuccessful.
In this case, CrossFit asked for the peer reviewers’ names as part of discovery, the process used by both sides in a lawsuit to gather relevant information; however, NSCA refused, saying it has the same right to protect sources as journalists do. CrossFit said those identities are important to understanding the peer review process, which in turn is central to their defense in the case.
Following yesterday’s hearing, CrossFit founder Greg Glassman, who is a defendant in the case, told Retraction Watch:
it’s absurd for the NSCA to ask for protection from probing that fraud on the basis of protecting academic independence.
In December 2017, the issue came before William McCurine, Jr., a retired judge appointed to the case as a discovery referee. McCurine ruled in favor of CrossFit and ordered NSCA to turn over the names. NSCA filed a challenge to that decision, which led to the hearing before Wohlfeil, the trial judge.
Prior to yesterday’s hearing, Wohlfeil issued a tentative ruling, in which he overruled NSCA’s objections to disclosing the names:
The Court is persuaded by the reasonableness of Referee McCurine’s analysis as well as Defendant’s opposing arguments.
Joshua Koltun, a San Francisco-based attorney who is not involved in this case, told Retraction Watch that the tentative ruling was just that, and not the final decision:
the point of the tentative ruling is to let the attorneys know how the judge is leaning based on the papers he read and gives the attorneys a chance to change his mind. By showing how he’s leaning it enables the attorneys to focus on what issues they think he’s gotten wrong.
Now, following Thursday’s hearing in which attorneys on both sides argued their case, the matter has been resolved — reportedly, in favor of CrossFit. Retraction Watch reached out to CrossFit attorney Justin Nahama of Troutman Sanders, who told us:
the Court adopted its tentative ruling.
The NSCA and their attorneys did not immediately respond to our request for comment. [Update UTC 20:30 01/19/2018: NSCA declined to comment, citing ongoing litigation.]
Russell Greene, a CrossFit employee and a defendant in the suit, told us:
This decision is good for science. CrossFit’s legal efforts are helping establish a precedent that will help incentivize legitimate science, and punish scientific misconduct.
But Koltun told us the ruling wouldn’t necessarily set a legal precedent for requests to unmask reviewers in other cases. Courts must consider both peer reviewer confidentiality as well as the needs of the case, he said:
It is a balancing test and the test hasn’t changed.
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