In ''Orbovich v. Macalester College'', 119 F.R.D. 411 (D. Minn. 1988), a federal district court rejected an assertion of privilege from [[discovery]] in of academic [[peer review]] materials concerning denial of tenure.
In this widely cited decision, the court held that "the great weight of direct authority on the issue goes against defendant as does the relevant authority on the broader subjects of privilege and discovery." ''Id.'' at 413. The court relied on the:
:recent Supreme Court decisions in EEOC v. Shell Oil Co., 466 U.S. 54, 80 L. Ed. 2d 41, 104 S. Ct. 1621 (1984) and Hishon v. King & Spalding, 467 U.S. 69, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (1984). In Shell Oil, the Supreme Court dispensed with any notion that the EEOC must establish viability of the discrimination allegation as a prerequisite to enforcement of its subpoena. Such a requirement would impair the orderly progress of discovery by permitting threshold litigation about the adequacy of the proof of discrimination. Id. at 71, 81. In a private Title VII action, the same impediment to the intended self-execution of discovery under the rules would arise, embroiling the court in threshold decisions on the merits, prior to the time of trial. Such unusual treatment of a civil litigant is not warranted on the grounds that her adversary is an academic institution. "Exceptions to the demand for every man's evidence are not lightly created nor expansively construed." United States v. Nixon, 418 U.S. 683, 710, 41 L. Ed. 2d 1039, 94 S. Ct. 3090 (1974). Although academia has an acknowledged higher interest in the unimpeded selection of those who are best qualified to educate, even this implied freedom of association is well understood to be limited by Congressional enactments barring discrimination. Hishon, at 80 n.4, J. Powell, concurring.