Monday, January 15, 2007
And what does a judge do when the cat/bell/horse/ship is already out/rung/free/sailed? Hold a hearing. Punish the initial leakers if they acted in bad faith. And throw up his hands. I predict that is what will occur in Brooklyn tomorrow.
I've been corresponding this morning with a friend about the Zyprexa case and what it represents in the ongoing story of law and technology. Historically, if documents subject to a protective order were improperly disclosed, a court would have at least a fighting chance of getting most of them back. The point of this current adventure is that -- at least in cases like this, with a high-profile product and tech-savvy (or even just tech-competent) activists involved -- that chance is now zero.
And so I'm inclined to think that McGeveran is right that punishment of the initial leakers is the only recourse. But it further seems to me that, especially when the massive and speedy distribution that occurred here is in play, those punishments should probably be pretty significant. (I'm setting aside the question of whether the lawyer receiving the documents is within the court's reach, and mostly focusing on the expert who gave up the documents.) If the back-end "fix" is no longer feasible, shouldn't we increase our focus on the front-end prevention?
On the argument that the documents' disclosure is in the public interest, well, sure, maybe they are. But the protective order [PDF], as it must, provides for a way to make that argument to the court, and I think it's fair to say that Judge Weinstein would be at least as open to those arguments as any judge I can think of. In most mass torts, the bad documents eventually come out in open court, though certainly it might be nice for them to come out sooner -- and that's why Gottstein could have made the request for declassification via Judge Weinstein.
When the initial step seems very likely to have been in violation of the protective order (an order which exists for undeniably good reasons), the term "ton of bricks" leaps to mind as an appropriate approach by the court.