Background and Significance

Psychological and neuropsychological testing hinges on the reliability and validity of assessments to gain insight into patients’ personality, cognitive, emotional, and physical functioning. Accuracy of diagnoses and treatment recommendations is based on confidence in our test measures. Tests are designed in such a way that the naivete of the examinee is crucial, and that prior exposure or knowledge could skew testing, significantly impacting results, and potentially invalidating the data. As such, the security of test materials is of utmost importance to maintain reliability and validity. This presents unique proprietary issues, setting the field apart from others. Test security in the field of psychology is pertinent. The landmark case, Randy's Trucking, Inc. v. Superior Court (2023), raised considerable concerns about test security, the judicial system's considerations for psychologists’ ethical code, and the extent to which psychologists assert their legal, professional, and ethical obligations in protection of test measures. The case references the American Academy of Clinical Neuropsychology’s (AACN) official position on test security and the American Psychological Association’s (APA) ethical standards and Specialty Guidelines for Forensic Psychology. Ultimately, the court ruled protective orders should ameliorate concerns about test security, including disclosure of test materials to non-experts, and rejected concerns about test security, as discussed by the American Academy of Clinical Neuropsychology (AACN; Boone et. al., 2022). Unfortunately, the court was only presented with a narrow view of the issues, and only a subset of some issues were actually provided. The case of Randy’s Trucking highlights potential test security concerns for the field of psychology; however, it also brought to light potential avenues for how to address the issue.

What was Randy's Trucking, Inc. v. Superior Court (2023)?

In the Randy’s Trucking case, the defense had filed a motion to compel a neuropsychological exam of the plaintiff. The court ordered an examination, and required that the neuropsychologist disclose all raw data under a protective order, including audio recording. The expert hired by the defense refused to conduct the examination, as it violated their ethical codes and presented a risk to test security. In this case, the appellate court viewed the issue as a psychologist’s ethics versus a plaintiff’s discovery rights. While both issues were in question, their view was narrow, failing to take all important factors into consideration.

First, the issue raised in the Randy’s Trucking case is not only one of a psychologist’s ethics, but also society’s right to preserve valid assessment tools (Boone, Kaufmann et al., 2024). There are only a limited number of reliable, validated, and standardized assessments for a given purpose (e.g., capacity, competency, diagnosis). Tests are used for a variety of reasons, such as fitness for duty of individuals in positions impacting public safety, including first responders, physicians, and pilots. As such, if our assessments were to leak to the general public, there could be considerable risk to public safety and society. Additionally, new tests or alternative versions of tests are not easily developed. The process of test construction is arduous, expensive, time-consuming and cannot be immediately replicated. Unnecessary and/or improper disclosure of test materials can result in damage to parties who have an ownership interest in the test and to society at large.
 
To Take A Case Or Not To Take A Case?

In the Randy’s Trucking case, the court wrote, “while this regulation requires psychologists to maintain test security, [...] the regulation does not prohibit a psychologist from producing tests or devices when ordered by a court subject to a protective order” (Buttram, 2023, p. 22). However, the court was only provided with a truncated version of the codes, and the full American Psychological Association's Ethical Principles of Psychologists and Code of Conduct (hereafter referred to as the Ethics Code; APA, 2017) was not submitted into evidence. So, although the court considered Ethics Code Standard 9.04 (“psychologists provide test data only as required by law or court order”) and Standard 9.11 (“psychologists make reasonable efforts to maintain the integrity and security of test materials[...]”), other important codes were not considered. For example, the court did not consider standard 9.07 (“psychologists do not promote the use of psychological assessment techniques by unqualified persons, except when such use is conducted for training purposes with appropriate supervision”). Turning protected test materials over to an attorney and their staff would likely be promoting the use of assessments by non-psychologists (e.g., interpreting and scoring the materials in order to construct questions for cross-examination) which is a violation of the ethics codes.

Second, as initially described, the Randy’s Trucking case was about a neuropsychologist who was asked to take on a case. So, the question was not about whether a psychologist should defy a court order, but rather should they agree to take on a case in which they have advance knowledge it would result in improper disclosure of materials and risk to test security. In turning down the case, the psychologist would not be defying a court order, and would be maintaining their ethical obligations.

Although attorneys argue that withholding the raw data compromises the plaintiff's discovery rights, they have alternative courses of action. Rather than a psychologist turning over protected test information to a non-psychologist, the attorney has the right to hire their own expert. In this case, the experts can exchange raw data, and appropriately educate their respective counsel. This course of action satisfies our ethics codes, and ensures that counsel can be appropriately provided the information needed for their case.

In conclusion, researchers recommended disclosure of protected test information should “be exchanged directly and solely” between licensed psychologists (Boone, Sweet et al., 2024, p. 9). Boone, Kaufmann and colleagues (2024) found “no reasonable benefit” to releasing protected test information to attorneys, and highlighted damage to psychological and neuropsychologist tests, public health and safety, and the judicial process itself (p. 15).

Protective Orders

In the previously mentioned case, the court ruled protective orders should ameliorate concerns about test security, including disclosure of test materials to non-experts. Boone et al. (2024) discussed various concerns related to release of sensitive test information under protective orders, including: (a) viability of protective orders for digital materials, given they previously regulated physical materials, (b) attorneys’ conflict of interest to abide by protective orders and inform clients about psychological tests, (c) vulnerability of psychological and neuropsychological tests to damage with protective order breach due to compromised future use, (d) difficulty enforcing protective orders, (e) ability to challenge protective orders after conclusion of a case, (f) exponential increase in likelihood of breach of protected information with increasing number of protective orders, (g) access to protected test information under protective orders extends well beyond attorneys, and (h) violations of protective orders are of low priority for courts.

In July 2023, The California Psychological Association (CPA) published a statement of concern about the release of psychological and neuropsychological information under protective orders (this statement is available to review by contacting the California Psychological Association directly at 916-286-7979 or cpa@cpapsych.org). The CPA noted that while protective orders are important, they are often loosely enforced, so the risk to test materials is not satisfactorily reduced. Once proprietary information is inappropriately disseminated, the damage impacts the field uniquely. For example, if proprietary information were released about computerized tomography (CT) scans, this would not compromise the ability for the CT to be effective. However, if proprietary information about psychological test materials were released, this would greatly compromise the ability for these measures to be used.

Road Map for the Future

The CPA’s statement of concern regarding test security referenced APA and AACN statements on ethical principles and test security, while further addressing the following impacts if test security is compromised:

1. Psychological and neuropsychological tests are often used as part of fitness-for-duty evaluations, and compromised test material may have catastrophic consequences for public health and safety.
2. Compromised accuracy and fairness of educational evaluations due to “excessive practice or studying” (p. 2).
3. Increased possibility individuals may “feign mental disorders” in cases such as social security disability insurance claims or personal injury lawsuits, resulting in misuse of public and private resources (p. 2).
4. Compromised ability to detect genuine cognitive and psychiatric impairment significantly impacting patient care.

In the Randy’s Trucking Case, the court noted if a more thorough canvassing had been completed (i.e., survey of psychologists on the issue) there may have been stronger grounds to protect test information. Psychologists nationally, and at a state level, have been working to protect the security of our tests. A national survey of 628 psychologists concluded that an overwhelming consensus (> 98%) opposed disclosing test materials to attorneys, and would reject protective orders as a sufficient safeguard (94.5%; Merreiro & Purdom, 2025). States are working to gather their own collective surveys. In California, a Collective Statement on the Importance of Protection of Psychological Test Materials was developed by Catherine Marreiro, PhD, ABPP. By the summer of 2025, she obtained signatures from 95% of ABPP board certified neuropsychologists in California, 36 with certifications from other boards, and 109 signatures from psychologists who were not boarded. These statements have been cited in at least 17 favorable trial rulings (Merreiro & Purdom, 2025).

In the fall of 2024, one of the authors of this article (White) constructed a collaborative statement specific to the state of Oregon. The statement was reviewed by a number of local neuropsychologists and several attorneys before the final draft was solidified. Following the process taken in California, she selected an identifiable group (licensed and board-certified neuropsychologists in the state of Oregon). The American Board of Professional Psychology (ABPP) maintains a publicly available directory of all current members. Per the ABPP website, the directory lists all current ABPP board-certified psychologists. Dr. White extracted the names of the neuropsychologists and cross-referenced the list with the Oregon Board of Psychology’s list of current active licenses. She then contacted all board-certified individuals with an active Oregon license, asking for their signatures in support of the collective statement. All (100%) clinicians indicated they agreed with the content of the statement and would not accept a civil case in which test security would be compromised. Dr. White’s next step will be to reach out to other psychologists to obtain their signatures for additional support.

What Can a Clinician Do?

It is pertinent to understand your rights as a clinician. APA ethical guidelines require us to abide by court orders, but does not require us to accept cases in which we know raw data will be released to unqualified persons or if we have concerns for test security. Clinicians who receive subpoenas are encouraged to reference APA Practice Organization’s (2008) How to Deal with a Subpoena: Pointers for Psychologists. Clinicians are also strongly encouraged to consult colleagues or an attorney with questions about test security or when test data is requested. The Oregon Psychological Association (OPA) provides one free legal consultation with Paul Cooney each year for clinicians. Lastly, please feel free to reach out to Dr. Natasha White (nwhite@oregonneuro.com) to add your signature of support to Oregon’s Collective Statement On Test Security. You can also encourage other colleagues to reach out and add their signatures to help ongoing test security efforts.

 
References
American Psychological Association. (2017). Ethical principles of psychologists and code of conduct (2002, amended effective June 1, 2010, and January 1, 2017).
https://www.apa.org/ethics/code

Boone, K. B., Kaufmann, P. M., Sweet, J., Leatherberry, D., Beatty, R. A., Silva, D., Victor, T. L., Boone, R. P., Spector, J., Hebben, N., Hanks, R. A., & James, J. (2024). Attorney demands for protected psychological test information: Is access necessary for cross examination or does it lead to misinformation? An interorganizational position paper. The Clinical Neuropsychologist, 38(4), 889-906.

Boone, K. B., Sweet, J. J., Beattey, R. A., Kaufmann, P. M., Hebben, N., Marreiro, C., James, J., Silva, D., Victor, T., Hamilton, A., Glen, T., Kinsora, T. F., Bender, H. A., & Barisa, M. (2024). Release of protected test information under protective order: Viable solution or illusory safeguard? An interorganizational position paper. Archives of Clinical Neuropsychology, 00, 1-11.

Boone, K. B., Sweet, J. J., Byrd, D. A., Denney, R. L., Hanks, R. A., Kaufmann, P. M., & Suhr, J. A. (2022). Official position on the American Academy of Clinical Neuropsychology on test security. The Clinical Neuropsychologist, 36(3), 523-545.

Merreiro, C., & Purdom, W. M. (2025). The legal battle over test security: What all psychologists need to know. The California Psychologist, 58(3), 20-22.

Randy's Trucking, Inc. v. Superior Court (Buttram), 91 Cal. App. 5th 818 (2023).
https://law.justia.com/cases/california/court-of-appeal/2023/f084849.html