January 24, 2007
I will try to read them after kids are in bed, but James Gottstein has posted the transcripts from the hearings a few days ago, along with (among other things) a memo seeking to unseal the documents in question.
Just one quick note -- the expert in question, Egilman, indicates on the record that if deposed, he would assert his right against self-incrimination. Being civil litigation, that can, of course, be construed against him. The relevant chunk of testimony (from day two):
16 MS. GUSSACK: Your Honor is aware, I believe, that
17 the deposition of Dr. Egilman has been postponed as a result
18 of the need to obtain E-mails that have been deleted from his
19 control. We are hoping to conduct that deposition next week
20 so that we would have that in advance.
21 THE COURT: When is that deposition going to be
23 MS. GUSSACK: I think next Monday or at a time
24 agreed on next week.
25 MR. HAYES: I have told counsel for Lilly that
1 unless they are willing to commit themselves that they are not
2 going to proceed to seek criminal contempt, that my client may
3 take the Fifth Amendment at such a deposition.
4 MS. GUSSACK: Counsel for Lilly has shared with Dr.
5 Egilman's counsel the view that we are seeking to obtain a
6 factual record on which all sanctions that are appropriate can
7 be sought.
8 THE COURT: Are you going to proceed to seek
9 criminal contempt or civil contempt?
10 MS. GUSSACK: Your Honor, if the factual record
11 supports both civil and criminal sanctions, we will be
12 pursuing both.
13 THE COURT: Well, you are free to brief the point
14 and it is a very complex point, because all counsel know that
15 contempt is a quagmire in the federal courts as well as the
16 state courts; criminal, civil and all other kinds of
18 You don't have to do very much reading to determine
19 how difficult the procedures are.
20 Now, with respect to the question of whether your
21 client wishes to be deposed, he is going to be deposed or not
22 be deposed. I don't want a conditional order. You are aware,
23 of course, that in a civil litigation, the fact that he pleads
24 this privilege may be used against him.
25 MR. HAYES: I am, your Honor.
1 THE COURT: In connection with at least credibility,
3 MR. HAYES: That's correct, judge.
4 THE COURT: So you have to decide what you want to
5 do but I can't help you at this stage.
6 MR. HAYES: I understand, judge.
More to come.
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