In February 2007, The New York Times declined an invitation offering their reporter Alex Berenson an opportunity to explain his role in what Senior District Court Judge Jack B. Weinstein described as a “conspiracy” to defy a protective order in a recently-settled class action lawsuit that was, at the time of the alleged conspiracy, pending before United States District Court for Eastern New York.
In an opinion filed on Feb. 13, 2007, Weinstein wrote that the court wanted to “allow [the reporter] to appear and confront the evidence of conspiracy offered against him” at a hearing held by District Judge Brian M. Cogan on Dec. 19, 2006. At the initial hearing, Cogan was presented with evidence that Berenson and two other individuals plotted to disseminate internal documents from Eli Lilly & Co. that were sealed by court order on Aug. 9, 2004 as part of ongoing discovery in litigation against the pharmaceutical manufacturer. In re Zyprexa Prods. Liab. Litg., No. 04-MD-1596, 2006 WL 3877528 (E.D.N.Y. Dec. 19, 2006). In order to consider whether to issue a permanent injunction, Weinstein wrote, the court wanted to afford the reporter an opportunity to present evidence that the allegations of conspiracy were unfounded.
The Times responded by letter on Feb. 5, 2007, thanking the court for the opportunity but stating that it would be “inappropriate for any of [the newspaper’s] journalists voluntarily to testify about news gathering at The Times.”
“We guard quite zealously our role as a member of a free and independent press and believe quite passionately that, consistent with the principles embodied in the First Amendment, it is not the role of the newspaper or its reporters to submit to cross-examination about such matters even where it may otherwise serve our particular interests in a particular case to do so,” The Times’ Assistant General Counsel George Freeman wrote to the court.
On Feb. 13, 2007 Weinstein ordered the return of any remaining documents that individuals, government officials, and others had received and to refrain from further disseminating the materials. Berenson, The New York Times and five Web sites that were originally bound by Cogan’s temporary order were not a party to the injunction.
However, Weinstein scolded Berenson for his role in the series of events that led to the widespread publication of the sealed documents, conduct that the judge claimed ran afoul of even The Times’ own code of ethical conduct. “Staff members must obey the law in pursuit of news. They may not break into buildings, homes, apartments, or offices. They may not purloin data, documents or other property. … In short, they may not commit illegal acts of any sort,” Weinsten wrote, quoting The Times’ editorial policy.
According to Weinstein’s opinion, Berenson, a medical expert and an Alaska attorney devised a plan to circumvent the court’s original decision to seal the documents that Eli Lilly disclosed to the Lanier Law Firm during discovery.
Lanier, which represented individuals in a lawsuit against Eli Lilly for failing to disclose health risks associated with the antipsychotic Zyprexa, retained David Egilman as a medical expert in October 2006. On Nov. 10, 2006, Egilman agreed to the terms of the protective order issued in 2004 and gained access to internal documents that had been turned over to the Lanier Law Firm by Eli Lilly during discovery.
According to the court, at about that time, Egilman began discussing publicizing the Zyprexa documents with Berenson. The men later discovered that the terms of the protective order allowed an individual in possession of the sealed documents to be subpoenaed by any court or administrative agency so long as Eli Lilly or the opposing parties were notified in writing of a subpoena seeking confidential information. “In no event shall confidential documents be produced prior to receipt of written notice by the designating party and a reasonable opportunity to object,” the order read.
Unaware of any pending cases that offered an opportunity to subpoena the documents, Berenson suggested that Egilman contact Alaska attorney James Gottstein, director of the Law Project for Psychiatric Rights. Gottstein agreed to subpoena the documents and assist Egilman in distributing the sealed documents to government officials, a number of Web sites, and the media. Although he was not involved in any litigation that would require Gottstein to issue a subpoena, Gottstein persuaded an Alaska superior court to issue a deposition subpoena in a challenge to a state guardianship proceeding. The guardianship, according to Weinstein, involved the public guardian’s power to approve administration of psychotropic medication to the individual, although the administration of Zyprexa was not at issue.
The Alaska court issued a subpoena to Egilman on Dec. 5, 2006, ordering the expert to participate in deposition over the phone. Egilman forwarded the subpoena to Eli Lilly’s general counsel. However, after Gottstein amended the subpoena to require that Egilman deliver documents to Gottstein prior to the telephone conversation on Dec. 11, 2006, Egilman failed to alert Eli Lilly of the change. Attorneys at Lanier were not notified of either subpoena.
On Dec. 13, 2006, Eli Lilly contacted Lanier to discuss the subpoena issued by the Alaska court. After discovering that Eli Lily planned to file a motion in the Alaska court to quash the first subpoena, attorneys at Lanier instructed Egilman to delay answering the subpoena. Although Egilman agreed to delay his response, he had already begun transferring the files on Dec. 12, 2006.
Learning that Egilman had transferred the documents to Gottstein, Eli Lilly contacted the attorney, demanding that he identify the protected material or individuals to whom he sent the documents, return the documents and refrain from disseminating the documents further.
Lanier later discharged Egilman as an expert and requested the return of any sealed documents still in his possession. However, Gottstein had already distributed the documents to Berenson, The Times, government officials, and a number of Web sites. At Berenson’s request, Gottstein had not distributed the documents to other media organizations, allowing The Times to scoop the story. The newspaper began publishing front page articles about information contained in the confidential Lilly documents on Dec. 17, 2006.
On December 19, Cogan issued the temporary injunction, requiring some of the individuals to whom Gottstein had provided the documents return them. On December 29, Lilly learned that some of the recipients refused to comply with the order and continued their attempts to distribute the documents.
When the matter later came before Weinstein, the judge defended the importance of protective orders issued during complex litigation. Protective orders sealing certain documents during discovery under Federal Rule of Civil Procedure 26, Weinstein wrote, are “not the kind of classic prior restraint that require exacting First Amendment scrutiny,” as the parties against which the injunction was being sought argued. Under Seattle Times Co. v. Rhinehart, 467 U.S. 20, 25 (1984), a litigant does not necessarily have the right to disseminate information that is obtained by discovery because it falls within a class of speech that is typically not protected under the First Amendment. In a unanimous decision, the Supreme Court decided in Seattle Times Co. that information obtained by a litigant through discovery was made available only for purposes of trying the litigant’s suit. A litigant has no First Amendment right of access to information made available only for these purposes, Weinstein wrote. A right of public access did not attach to the documents once produced by Eli Lilly in discovery.
Because the court order sealing the documents provided procedures for parties and non-parties to submit motions to amend the order and provided a practicable means of restricting access during discovery, the court held that the protective orders imposed only a “minimal burden on speech.” By restricting access to the documents through the discovery process, the court is able to protect the “privacy and property rights of litigants appearing before it.”
In balancing the harm to the public, Eli Lilly and others involved, the court held that the documents should be returned and the protective order upheld against individuals and organizations possessing the documents. The Times, Snighdha Prakash of National Public Radio, and others, including Berenson, were not included in the injunction. The five Web sites listed in Cogan’s temporary injunction and against which a permanent injunction was sought were also not included in Weinstein’s order.
“Prohibiting five of the Internet’s millions of websites from posting the documents will not substantially lower the risk of harm posed to Lilly,” Weinstein wrote. “Websites are primarily fora for speech. Limiting the fora available to would-be disseminators by such an infinitesimal percentage [of the millions of Web sites on the World Wide Web] would be a fruitless exercise of the court’s equitable power.”
– Christopher Gorman, Silha Research Assistant