Tracing the Release of Eli Lilly Zyprexa Documents

An article in the New York Times -- Documents Borne by Winds of Free Speech, by Tom Zeller, Jr. -- details the release of the controversial Eli Lilly Zyprexa documents.  (On the controversial documents, see our prior posts on December 16, December 18, December 19, and December 21; and see this post with links to Eli Lilly's responses.)  Here's an excerpt from the article:

It all began with Dr. David Egilman of Massachusetts, who was a consulting witness in ongoing litigation against Lilly. Dr. Egilman had in his possession a trove of internal Lilly documents — not all of them flattering to the company — sealed by the court as part of that litigation.

Comes James B. Gottstein, a lawyer from Alaska, who was pursuing unrelated litigation for mentally ill patients in his state. He somehow got wind (and precisely how is the subject of separate legal jujitsu) that Dr. Egilman had some interesting documents.

Mr. Gottstein sends Dr. Egilman a subpoena for copies. Hell begins breaking loose.

In a letter dated Dec. 6, Dr. Egilman informed Lilly’s lawyers, as was required by the order sealing the documents, that he had been subpoenaed. Lilly’s lawyers expressed their deep displeasure in a Dec. 14 letter to Mr. Gottstein, and politely told him to back off. In a response a day later, Mr. Gottstein informed them, among other things, that it was too late, and that some of the material had already been produced.

It seems Mr. Gottstein was also apparently in a sharing mood, which is how hundreds of pages ended up with a Times reporter, Alex Berenson — and about a dozen or so other individuals and organizations.

This is also how copies of the documents ended up on various Web servers — and when that happened, things changed. While surely painful for Lilly, the online proliferation began flirting with some bedrock principles of free speech and press, as well as some practical realities that looked a fair bit like toothpaste out of its tube.

Nonetheless, last month, United States District Judge Jack B. Weinstein ordered Mr. Gottstein to provide a list of recipients to whom he had distributed the contraband pages, and to collect each copy back.

The New York Times article also quotes William Childs, editor of the TortsProf Blog, which is affiliated with this blog through the Law Professor Blogs Network:

On his TortsProf blog (snipurl.com/Torts), William G. Childs, an assistant professor at Western New England School of Law in Springfield, Mass., put it this way in a headline: “Judge Tries to Unring Bell Hanging Around Neck of Horse Already Out of Barn Being Carried on Ship That Has Sailed.”

A similar problem occurred in the tobacco litigation in late 1990s, when, if I recollect correctly, the judge in the Minnesota Attorney General case ruled that whole categories of types of documents were not privileged, based on a review by the special master of only a sample of the documents in each category.  Disagreeing with the judge's approach to examining privilege (there is much to disagree with in such a privilege-review-by-sample approach),the tobacco defendants then continued to keep trying to claim privilege on the other documents across the country.  Ultimately, I believe Congress subpoenaed the documents and put them on the internet, and plaintiffs argued against defendants' privilege assertions by saying the cat was out of the bag (add that to William Childs' animal metaphors).  While at some point documents may become newsworthy and unable to be recovered (especially in the internet age), any such inappropriate and contested release of documents to the public should not be deemed to affect how courts treat the documents for litigation and trial purposes, e.g., finding implied waiver of privilege.

BGS