Release of Protected Test Information Under Protective Order: Viable Solution or Illusory Safeguard? An Interorganizational† Position Paper.

Abstract

To critically examine the assumption that protective orders are adequately protective of sensitive psychological/neuropsychological test information. Attorneys at times claim that to adequately cross-examine neuropsychological experts, they require direct access to protected test information, rather than having test data analyzed by retained neuropsychological experts. As a compromise, judges sometimes order that protected test information be released to attorneys under a protective order. An appointed writing group of forensic experts developed a position paper addressing the history of protective orders and their presumed effectiveness in protecting psychological and neuropsychological test content. The expert panel consisted of 12 forensic neuropsychologists, a forensic neuropsychologist/attorney, and a forensic psychologist/attorney. Eight reasons are enumerated as to why protective orders do not sufficiently safeguard protected psychological/neuropsychological information and thereby jeopardize future use of the tests. Recommendations are provided to the expert witness practitioner for navigating demands by non-psychologists for direct access to protected test information. There is strong agreement within the practicing neuropsychology community that test security is a vital matter, which, if properly enforced, can ensure the validity of present and future psychological and neuropsychological assessments but, if ineffectively managed, will undermine such evaluations. Because the effectiveness of protective orders has not been, and cannot be, guaranteed, protected psychological and neuropsychological test information should not be released under aprotective order.