Discovery issues and child custody evaluators

By its own language, the APA ethics code, an extra-legal code of ethics of a private trade association, requires compliance with "the law". In the law, there is a hierarchy of authority. Higher authorities control lesser authorities. At the top is the U.S. Constitution, and the case law interpreting it, recognizing fundamental rights of fairness, due process, and cross-examination. Below that are federal statutes that supersede state laws. Below that come state laws, constitutional, statutory, and case law. Below that come administrative regulations. At the very bottom is the law of private contract, such as the APA regulations or the contracts of nonparties who voluntarily -- and for profit -- knowing in advance that they wrongfully will be professing to have a conflict of interest, nevertheless have injected themselves into other persons' litigation.

Lower authorities that refer to exceptions "otherwise required by law" are indicating that they are to be interpreted consistent with that higher legal authority, and defer to it. Thus, it is neither "reasonable" nor "consistent with law" to posture that a private contract might supersede the requirements of the constitution. Doing so repeatedly, speciously pretending to ignorance and confusion, is frivolous, unsupportable, sanctionable conduct.

The Administrative Code regulating psychology, albeit a step up from private contract, cannot be interpreted by a thinking individual as law that competes with, conflicts with, or modifies higher legal authority or more compelling constitutional rights. The lower authority rules still must be interpreted in a manner that is consistent with those constitutional rights and superseding law. In the United States of America, we do not permit Court of Star Chamber proceedings, in which the underlying data upon which expert opinions are based, gets to be kept secret from the litigants. Since that's not an option, there's nothing for a court properly to decide. See additional discussion below on the Florida code.

Laying aside that the APA guidelines primarily address clinical practice anyway, there is no research evidence anywhere establishing generally that preventing the release of forensic psychology test data and other assessment records to "people untrained to use them" will protect anyone, or ever has protected anyone, or, conversely, that the release of such records in general has harmed or will harm anyone. While this all sounds plausible, and it is possible creatively to imagine situations in which such harm theoretically could result, it is simply not established as a general rule. No research has established that any harm will come to the public if psych testing were not available. While it is plausible as an hypothesis, no evidence establishes this. Indeed, the public managed very well for hundreds of years without psych testing and there is no evidence (unlike in the fields of medicine or dentistry) that the public is better off, more well adjusted, healthier, or happier, because of the availability of psych tests.

On the other hand, it is axiomatic in the law that deprivation of due process and the right of cross examination is a fundamental harm. In addition, misuse and misinterpretation of test data by psychs themselves, the lack of validity of many of the tests, the lack of interrater reliability, and high controversy over the efficacy and use of many of these tests also is well-known.

To the extent that the trade promotion interests of a third party are in conflict with the fundamental due process rights of the actual litigants in a court case, it should be remembered that the third party voluntarily injected itself into the proceedings, knowing in advance what its interests were, and thus implicitly waived those interests in deference to the litigants' higher interests in due process and fundamental fairness.

It is not a violation of copyright to turn over materials in response to a subpoena for discovery, or to make photocopies of the materials for use in connection with litigation. Period. This falls squarely within the fair use exceptions.

Material that is readily sold, that is available to competitors, that is discussed in articles and published in books that are available to the public in libraries, and that is not kept by the test publisher from tens of thousands of psychs is not a "trade secret". While test publishers individually indeed may have various trade secrets, they do not include material in the possession of competitors and industry-wide third party users. Once material is shared within the industry, trade secret law no longer applies. Psychs here have the same issues that magicians do, in that they attempt to keep material secret from the public but the material is well-known in and among the industry competitors. Trade secret law thus is inapplicable.

If and to the extent the test publisher markets its products for its own profit for intended use in court, it also has knowingly, and in advance, thereby agreed to any publication that foreseeably ensues in connection with those court proceedings, because those proceedings ordinarily should be expected to comport with due process.

There is an easy solution if the test publisher or the forensic psych doesn't like this. Don't use these instruments for forensic work. It is validly argued that by doing so, the psych deliberately, and for his own financial gain and self-aggrandizement, cavalierly set in motion a contract violation of his own doing. He cannot, after doing so, and after setting up a [purported] conflict of interest -- a dilemma of his own making -- now place the burden of rectifying that malfeasance on other people's time, money, and fundamental rights. A subpoena quash or protective order is an equitable remedy -- and the psych and the test publisher have dirty hands and cannot come into court midstream, changing their tune and begging for protection at others' expense and detriment.

More information can be found at http://www.thelizlibrary.org/therapeutic-jurisprudence/custody-evaluator-testing/ and at Child Custody Evaluation: Reevaluating the Evaluators