TortsProf Blog

Editor: Christopher J. Robinette
Southwestern Law School

Thursday, January 25, 2007

Updated: Highlights from the Zyprexa Hearings

Updated: I've added day 2 highlights below day 1.

(By the way, if you don't know the background of the Zyprexa documents issue, use the Technorati search over on the right to search for my past posts on it.)

We'll see if I get all the way through both days in one post, but here's a good start.  I've omitted some less interesting parts and also bolded some parts I found particularly notable.

A good ways into the first day, James Gottstein testified about his early interactions with Egilman (identified as "Eagleman" in the transcript), after first reading out loud a submission of his describing those same interactions:

10   Q    On page 4 of your letter you told Special Master Woodin
11   that Dr. Eagleman called you in your words out of the blue on
12   November 29, correct?
13   A    I think I said on or about or something like that.  Going
14   back to my records, it looks like it was November 28th.
15   Q    And those are records that you have in your possession?
16   A    Yes.
17   Q    That you haven't submitted at this point?
18   A    No.
19   Q    What type of evidence are you suggesting confirms that
20   there was a communication on November 28?
* * *
2   Q    So help me understand the phone call.  He calls you out
3   of the blue and is looking for some documents that you have
4   posted on your website.  How does he tell you that he has
5   access to secret documents?
6   A    He says that he is a plaintiffs' expert in this
7   litigation.
8   Q    And why was he telling you that in your view?
9   A    Well, I mean I can kind of give my sense of that.  Maybe
10   I have a pretty good sense of that.  But anyway, basically he
11   -- he wanted -- he was interested in getting these documents
12   out as well
.  That was my sense of it.
* * *
19   Q    You both had an interest in publicizing the documents,
20   correct?
21   A    Yes, I have my interest.  I really hesitate to speak for
22   Dr. Eagleman.
* * *
21   Q    Mr. Gottstein, your understanding based on the
22   conversation with Dr. Eagleman, your state of mind at the time
23   was that you understood that the -- that Dr. Eagleman was
24   calling you so that you would assist him in disseminating
25   documents that were subject to a protective order, right?
1   A    I think that is probably correct.  I was pretty focused
2   on my objectives not his objectives but it's hard for me to
3   say that is not accurate.
* * *
12   Q    And you are familiar with protective orders generally,
13   sir, aren't you?
14   A    Somewhat.  Actually, I haven't litigated that much in my
15   career.
16   Q    But you understand what a protective order means in
17   litigation, right?
18   A    Yes.

They then turned to a discussion of Gottstein's knowledge of the protective order, and some interesting advice from Egilman:

3   Q    And you are aware that -- and Dr. Eagleman as you
4   testified told you that there were certain restrictions that
5   he was operating under with respect to the Zyprexa documents,
6   correct?
7   A    Yes, and I told him he had to comply with those.
8   Q    And you never asked for a copy of the protective order,
9   did you?
10   A    Actually I did ask for it.
11   Q    When?
12   A    Probably the first telephone call.  It was pretty early
13   on in the telephone conversations.
* * *
21   Q    And you didn't get it, right?
22   A    He said I didn't want it and I didn't push it.
23   Q    Why did he say you didn't want it?
24   A    Again, we're calling for his state of mind.
  My kind of
25   sense of it was that if I didn't have it, then I wouldn't be

1   charged with the knowledge of it but.
2   Q    And you wouldn't be here in a proceeding like this?
3   A    No, I don't think that is correct because he did read the
4   relevant portions to me and I felt -- first off, I felt and do
5   feel that we followed the procedure set out in the protective
6   order; and second of all, I feel that it was Dr. Eagleman's
7   obligation to comply.
8             Now, subsequent to all of this coming out, I realize
9   that I probably should have been more insistent on getting the
10   protective order but I felt pretty confident that all I needed
11   to do was comply with my part of the process.
* * *
24   Q    So he read to you paragraph 14 of the protective order
25   which is actually in your letter, isn't it?
1   A    Yes.
* * *
4   Q    One of the things that paragraph 14 requires is to
5   provide the producing party, in this case Eli Lilly, and
6   Section 3 under paragraph 14 is the location -- I'm sorry,
7   number 2 is the date on which compliance with the subpoena is
8   requested?
9   A    Yes, and actually I don't know if I misheard or what and
10   I recall thinking of it as required rather than requested but
11   from my perspective, that doesn't really make any difference.
* * *
24   Q    Sure.
25             You understood when you spoke to Dr. Eagleman that
1   this Court had issued an order, a protective order relating to
2   the dissemination of the documents produced in this
3   litigation, correct?
4   A    Yes.
5   Q    And you further understood that the procedures in place
6   under that protective order required the producing party, in
7   this case it would be Dr. Eagleman who wanted to share the
8   documents with you, that he had to give notice to Lilly if
9   they were Lilly's documents prior to production, correct?
10   A    Yes.
* * *
2   Q    ...
3             On December 6 you sent a subpoena to Dr. Eagleman?
4   A    Yes.
5   Q    It was an Alaska State Court subpoena?
6   A    Yes.
* * *
15   Q    Why don't you turn to the page on -- the attachment to
16   your letter where the original subpoena is attached.
17   A    Yes.
18   Q    Now, before we get to the content of that subpoena, one
19   of the things that -- you and Dr. Eagleman had a problem on
20   November 29, didn't you, you didn't have a case that you could
21   use the subpoena the documents, right?
22   A    Did you say November 28, I guess it would be.
23   Q    November 28.  But on November 28 when you knew that you
24   wanted the Zyprexa documents so that you could publicize them,
25   you had a problem because you didn't have a case that you
1   could issue a subpoena from that would allow you to subpoena
2   the documents?
3   A    I don't know if I would characterize it as a problem but
4   it was necessary to have an appropriate case in order to do
5   that.
6   Q    Right, because you can't just send out subpoenas without
7   a case, right?
8   A    Correct.
9   Q    And you are supposed to use a subpoena for the purposes
10   of the case, right?
11   A    You know, actually, I researched this before I did it
12   because I wasn't really concerned about the protective order
13   because -- for reasons why I said and probably that will come
14   out that I considered that Dr. Eagleman's responsibility.  I
15   advised him to comply with it and in fact to maybe foreshorten
16   it, I told him repeatedly that he should give Eli Lilly the
17   amended subpoena.  But what I was concerned --
18   Q    Let's just stop there.
19   A    Can I answer your question?
20             THE COURT:  Finish your answer.
21   A    But I was concerned about this issue of whether it would
22   be proper to issue a subpoena in a case that had dual
23   purposes, one in the case, and the other for this
24   dissemination.  And I satisfied myself through that research
25   that it was proper.
1   Q    There is no evidence that DB [his client in the forced medication case] was ever taking Zyprexa?
2   A    There is no evidence, you mean in the record here?
3   Q    You haven't offered any evidence that DB was taking
4   Zyprexa on December 6 when you issued the subpoena or at any
5   time since December 6, is that correct?
6   A    That's correct.
7   Q    And so you found a case to issue a subpoena calling for
8   Zyprexa documents and there is no evidence that the person
9   involved in that case ever was taking Zyprexa, correct?
10   A    Well, again, it hasn't been produced in this proceeding
11   yet.  I'm not sure that he has never been.  At this time I'm
12   not sure that he has ever been.  He certainly was potentially
13   subject to it and Eli Lilly's apparently illegal marketing
14   activity was certainly relevant to the question of whether of
15   not he should be ordered to take this drug against his will.

We then get to learn first about the fact that there was no discussion of seeking dedesignation of the documents through the process set forth in the protective order (this is what makes me crankiest about the whole thing), and then more about the intention to have the documents distributed widely, including that Egilman had a media list in mind:

14   Q    Did you ever ask Dr. Eagleman whether there was a way to,
15   within the court procedure to seek to dedesignate documents
16   that you wanted to publicize?
17   A    I don't really recall that I did.
18   Q    Did Dr. Eagleman ever tell you that there was a way that
19   the documents could be -- apply to the Court and ask for the
20   documents to be made public?
21   A    No, I don't believe that he did.
* * *
25   Q    Dr. Eagleman understood that once they were subpoenaed,
1   that you were going to disseminate them to the individuals
2   that you later certified as having disseminated them to?
3   A    Yes, I think I already said that.
4   Q    Did he share with you anybody that he would like to have
5   them disseminated with?
6   A    Yes.
7   Q    One was Alex Berenson from the New York Times?
8   A    Yes.  Yes.
9   Q    Who else did Dr. Eagleman ask you to send the documents
10   to after he had given them to you?
11   A    For sure Steve Cha.
12   Q    He is with the Senate Finance Committee?
13   A    He was with at the time the House Committee On Government
14   Reform minority office which is now the majority office.
15   Q    Who else?
16   A    Amelia Desanto.  Yes.
17   Q    Who is Amelio Desanto?
18   A    She I think is the chief investigator for Senator
19   Waxman's committee and that may be the finance committee.  I'm
20   not sure what committee it is.
21   Q    Who else?
22   A    I spelled her name wrong.  Snigdha Prakash.
* * *
1   Q    And Ms. Prakash is with NPR?
2   A    Yes, National Public Radio.  I believe that is true,
3   that's what he indicated.

He then identifies the various folks he distributed the documents to on his own, which includes various advocates and journalists.

Then they start discussing the amended subpoena.  (After the original subpoena, which called for production at the deposition, he issued an amended subpoena requesting production "as soon as you can."  That second subpoena was never given to Lilly, which contends that it did not receive appropriate notice because the date of production was moved up significantly.)

22   Q    Let's take a step back and we've already talked about the
23   December 6th subpoena and that called for the production of
24   documents on December 20th, correct?
25   A    Correct.
1   Q    And you then issued an amended subpoena, correct?
2   A    Correct.
3   Q    And told Dr. Eagleman to start producing documents in
4   your words and I quote "as soon as possible", correct?
5   A    No, it's as soon as you can and I realized since then
6   that can is ambiguous but what I meant was as soon as -- you
7   know, as soon as.
8   Q    As soon as you can?
9             THE COURT:  Don't interrupt him.
10   A    As soon as he could under the protective order is what I
11   meant by it.
12   Q    Did you say that?
13   A    Well, I thought that -- that's what I intended when I
14   said that in the E-mail to him.  I don't -- I don't know that
15   I communicated that separately to him.
16   Q    Why did you move the date up from December 20 to as soon
17   as you can?
18   A    I didn't really move the date of the deposition up.
19   Q    You moved the date of the production of documents up,
20   correct?
21   A    Well, I mean, what it said was -- it's like I put in the
22   E-mail, it didn't make any sense for him to bring the
23   documents with him in Attelboro, Massachusetts for me to try
24   to examine them in Anchorage, Alaska.  So I had an amended one
25   that said to give it to me prior to the deposition and o give
1   it to me as soon as he could so that I would have a chance to
2   review them before the deposition.
3   Q    And the E-mail that you sent to Dr. Eagleman said produce
4   the documents "as soon as you can", correct?
5   A    I believe that's true.
* * *
11   Q    Then the [electronic] production of documents started the next day on
12   December 12, correct?
13   A    Yes.
14   Q    And it continued until in your words you received the
15   December 14th fax from Lilly's counsel on the morning of
16   December 15th, correct?
17   A    If that's what I said, yes.
18   Q    And earlier you said you had told Dr. Eagleman repeatedly
19   that he should send the second subpoena to Lilly, correct?
20   A    Yes.
21   Q    And you knew he planned not to send it to Lilly, correct?
22   A    Yeah, I think -- he told me he didn't see that it made
23   any difference.

24   Q    And you decided that it was not important for you to send
25   the subpoena to Lilly either, correct?
1   A    My -- my position is that it was his responsibility under
2   the CMO and not mine.
3   Q    As an officer of the Court, I'm just asking you, you made
4   the decision not to send the amended subpoena which called for
5   production of documents prior to December 20th to Eli Lilly,
6   correct?
7   A    Correct.
8   Q    And you knew at that time that Lilly had been provided
9   information that the document production would occur on
10   December 20th, correct?
11   A    Yes, well, I mean that's what the subpoena says but
12   that's not -- I think it's not uncommon for documents to be
13   produced prior to the actual date.
* * *
8   Q    You already told us that you told Dr. Eagleman repeatedly
9   to notify?
10   A    Eli Lilly, yes.
11   Q    So that --
12   A    I knew that Eli Lilly had an interest in this and so I
13   really -- I suggested that Eli Lilly should be notified but
14   the other parties in the Alaska case; A, they weren't -- I
15   didn't see why they would have an interest in knowing that.
16   The deposition date hadn't changed.
17   Q    When you issued the subpoena, you reason you said you
18   needed the subpoena was so that you could review the documents
19   in advance of Dr. Eagleman's deposition, correct?
20   A    Yes.
21   Q    And instead of reviewing the documents you start making
22   copies of them as soon as you received them, correct?
23   A    Yes.
* * *
6   Q    This is the question I want to make clear.  You were so
7   busy making copies of these documents that you never got to
8   review them, did you?
9   A    I looked at some of them.  The deposition was quite -- a
10   few days off which is, I think, your complaint.  So I would
11   pull up some of them and look at them and I -- and it wasn't
12   that I was so busy make copies.  I had my laptop burning DVDs
13   and my main computer burning DVDs, another laptop making sure
14   that they were -- I would make them and then I would put them
15   in this other one to make sure that they came up and I don't
16   know, I don't think it took me an hour to do it each time.
17   Probably less.
18   Q    And you were anxious to get them out as quickly as you
19   could, right?
20   A    Anxious, yes, I thought it would be good to get them out.
21   Q    Before the Court could enter an order telling you you
22   shouldn't?
23   A    Well, I don't know.  I mean I guess -- I don't know that
24   -- you know, I knew that Eli Lilly would want to try to stop
25   it.

1   Q    Right, and you wanted to get them out as quickly as you
2   could to make that harder?
3   A    Well, I would say yeah, I wanted to get them out of the
4   way that would make it impossible to get them back.

5   Q    Right.  And I just want to confirm that you, sir, as an
6   officer of the Court and an attorney in the State of Alaska,
7   relied on a physician to determine the legal implications of a
8   protective order, correct?
9   A    No, that is not precisely true.  I advised him to get
10   counsel repeatedly and I looked at it in terms of what my
11   obligations were and that I didn't have any obligations under
12   what is called CMO-3 here, I think, the protective order, that
13   I had to follow the rules.  I felt that the protective order
14   essentially provided a road map of how to do it and that I
15   followed that road map.
16   Q    Based on Dr. Eagleman's description of that road map,
17   right?
18   A    His -- well, he read that paragraph [of the protective order] to me.
19   Q    And let me just -- and the reason why I'm asking the
20   question, you submitted a declaration to the Court this
21   morning?
22   A    Yes.
23   Q    In paragraph 6 of that declaration, you wrote, and these
24   are your words:  Dr. Eagleman indicated that three business
25   days could be construed as sufficient notice to comply?
1   A    Yes.
2   Q    And you relied on Dr. Eagleman's interpretation of the
3   case management order and the procedures under which you were
4   supposed to be operating as an officer of the Court and you
5   never asked for the protective order and you never had a copy
6   of the protective order before you pursued your course of
7   action with Dr. Eagleman?
8   A    There is a lot there and I'm kind of tired from
9   everything, flying all night and stuff but you said as an
10   officer of the Court.  I was certainly an officer of the
11   Alaska Court and followed those rules.
12             I never did and I don't believe now that I am
13   subject to -- a party to that case management order.  Now, I
14   think really the guts of the question is what was reasonable
15   notice.  We discussed that and how -- actually, we discussed
16   and I know more about the law now but how ambiguous that order
17   was and so he said that he felt it could be construed that
18   way.  One of the things, for example, that we discussed was,
19   and I mentioned it, that initially I assumed that I was going
20   to get one of those AS 47.30.839 proceedings where the usual
21   practice, which I think is an absolute outrage, is for the
22   hospital to file a petition sometimes only an hour before the
23   hearing and then go through and get a forced drugging order
24   then the hearing that starts an hour from when the respondent
25   was served.  And that what is reasonable notice under those
1   circumstances?  And what I said, and I think I put it in my
2   draft response, is that well, I'm not going to do a hearing
3   under those conditions, and I always get a continuance.  And
4   so we talked about that and what it meant to be reasonable
5   notice and we talked about that but I made it clear I was not
6   his attorney and he needed to consult his own attorney and
7   that it was his obligation to comply with the order.

That's most of what I found interesting in the first day.  I'll try to look at the second day of testimony and argument later this evening.

The second day started out with some logistical discussion about documents that had been produced the evening prior.  Then the examination of Gottstein by Lilly's lawyer (Sean Fahey) resumed, seemingly focusing more on Egilman than Gottstein (sensible enough, since Egilman has been an effective expert for plaintiffs in many cases):

22   Q    Could you tell me what Dr. Egilman told you about the
23   Zyprexa documents that were produced in the Zyprexa
24   litigation?

25   A    He said that he had some documents and they -- he really
1   didn't describe them that much but that -- you know, that they
2   contained some alarming things in them.  I don't really
3   remember the specifics of it or that he really told me very
4   much about them but I got the impression that they were what I
5   would consider hot or very -- they would be of great interest
6   to me.
* * *
10   Q    Did you ask him to send you the documents immediately?
11   A    No.
12   Q    Why not?
13   A    Because I understood they were under a protective order.
14   Q    So what did he tell you about the documents to cause you
15   to understand that they were subject to a protective order?
16   A    What did he tell me?  He told me that there are a lot of
17   documents, that things like newspaper articles and press
18   releases were under this protective order.  He told me -- I
19   think he probably told me about -- I don't know.  Basically,
20   he suggested that I subpoena them, basically.
21   Q    Why was that?
22   A    I think because he thought they should become public.
* * *
7   Q    He was not free to disclose them to you unless he
8   complied with the protective order at issue in the Zyprexa
9   litigation, correct?
10   A    Yes.

Further suggesting the focus is on Egilman, the questioning focuses on Egilman's statements about production:

11   Q    Now, after you sent the second subpoena that we talked
12   about yesterday, the subpoena that you issued on December 11th
13   that called for the production of documents quote as soon as
14   you can, close quote, did Dr. Egilman tell you that his
15   lawyers for the Lanier law firm had told him not to produce
16   documents?
17   A    Absolutely not.
18   Q    Did Dr. Egilman tell you that Lilly's lawyers had told
19   him not to produce documents?
20   A    Absolutely not.

...and Egilman's very strong focus on getting widespread media attention from the documents:

19             Did you ever have any communications with Dr.
20   Egilman between the time that you received the documents and
21   December 17 when the New York Times published a portion?
22   A    Did I have communications with Dr. Egilman?
23   Q    Yes.
* * *
5   Q    What did you talk about?
6   A    I think most of it was around the New York Times story
7   and their desire to have -- to break it.
* * *
18   [T]here were other news
19   outlets that I was going to send them to.  And I ended up not
20   doing that.
21   Q    Why?
22   A    To accommodate the New York Times's desire to break the
23   story.
24   Q    Who communicated that desire?
25   A    Well, Alex Berenson called me about that.
1   Q    What did he say?
2   A    He said basically that if anybody else breaks it, they
3   are not going to run the story.
4   Q    So what?  Why was that important to you?
5   A    Well, because I think the New York Times is maybe the
6   best place to have had this happen from my perspective.
7   Q    And from Dr. Egilman's perspective also?
* * *
15   A    I think he wanted the New York Times to be the first to
16   publish it.
17   Q    Why do you think that?
18   A    Because he wanted me to not send it to other news
19   outlets.

...and some discussion of whether the people involved knew prior to the NYT story that Lilly and, maybe, the plaintiffs' lawyers, believed that the documents had been improperly produced, along with some interesting hints that Egilman had perhaps told someone at the Lanier firm that he was not going to produce the documents:

5   Q    Let's ask it that way.
6             You were told by the Lilly lawyers that they
7   believed prior to the publication of the December 17th New
8   York Times article that you had obtained those documents in
9   violation of a protective order in this case, correct?
10   A    I got two threatening letters from Eli Lilly on the 15th.
11   So I think that's probably right but I would want to look at
12   them again to see what it was that they put in those letters.
* * *
4   Q    Did you understand the Lanier firm to disagree with that
5   position?
6   A    You know, how can I comment -- they didn't say they
7   disagreed.  They didn't say they agreed.
8   Q    Did Dr. Egilman tell you that he had spoken with Rick
9   Meadow on December 13 and that Rick Meadow had told him not to
10   produce documents pursuant to the subpoena?
11   A    I don't remember him saying that.
12   Q    Did Dr. Egilman tell you that on December 13 he told Rick
13   Meadow that he would not produce documents pursuant to the
14   subpoena?
15   A    He did not tell me that.

(I believe Mr. Meadow submitted a declaration, but I don't think I have a copy of it.)

Gottstein also testified that he expected that a majority of the people to whom he sent the documents would further distribute them.

Now here's a pretty interesting part that I hadn't noticed the first time through: the whole process was evidently started by Alex Berenson of the Times.  Speaking of Gottstein's conversation with Berenson:

9   Q    Why did he call you?  What did he tell you when he called
10   you?
11   A    He told me that he had given Dr. Egilman my name.
12   Q    Alex Berenson had given Dr. Egilman your name?
13   A    Yes.
14   Q    Is that how Dr. Egilman came to contact you on
15   November 28.
16   A    I think so.
17   Q    And you said that he had told you that he had given Dr.
18   Egilman your name.
19             Help me understand that.
20             What did he say?
21   A    He said that Dr. Egilman had some documents that he
22   wanted to get to the New York Times and that he had, you know,
23   thought that I might be someone who would subpoena them.

I may well be wrong, but I don't remember ever being aware of a reporter connecting sources with lawyers in an effort to get documents that are otherwise under a protective order.

Some information about the timing of his compliance with the special master's order to return documents (which predated the order from the magistrate judge):

25   Q    Now, once you received the order from Special Master
1   Woodin on December 15th, what action did you take to comply
2   with that order?
3   A    Well, what I did was I didn't believe that I was subject
4   to Special Master Woodin's directives, that I wasn't a party
5   or anything like that, so I tried to clarify that immediately
6   with Special Master Woodin and I sent them an initial E-mail
7   kind of indicating that and that I would send something
8   further later, which I did.
9   Q    But you took no further action to actually comply with
10   the order after you received it on December 15th, you sought
11   to clarify but did you take any steps to comply with the order
12   in the midst of your attempting to clarify?
13   A    By complying, you mean get them back?  No.
14   Q    For example, did you call Alex Berenson and say I just
15   got an order that says these documents were improperly
16   disseminated, I think that might be something you might want
17   to know?
18   A    I think I probably did communicate the order -- I may
19   have communicated the order to him, yes.
20   Q    Did you try to get the documents back?
21   A    No.
* * *
6   Q    Between December 15 when you received Special Master
7   Woodin's order and December 18th when you got on a phone call
8   with Magistrate Judge Mann to discuss your compliance with
9   that order, aside from your attempts to clarify what the order
10   meant, did you take any steps to comply with it?
11   A    Well, I didn't further disseminate them for sure and I
12   had actually ceased doing that even before the order -- before
13   the special master's order.  I did not try and get them back
14   at that point.
15   Q    From anyone, right?
16   A    I think so.  I mean it's possible I would have gotten
17   them back from my wife but I don't think so.

After Lilly's lawyer finished up, Egilman's attorney, Edward Hayes, spent a fair amount of time exploring Gottstein's interest in Zyprexa and establishing that he has an actual and legitimate litigation-related interest in the safety of psychiatric drugs.  He also establishes that Egilman's contact with Gottstein was at least in part for reasons related to Egilman's work as an expert witness:

3   Q    So that in fact when he called you up, he told you that
4   he was being an expert witness for the plaintiffs' lawyers in
5   a lawsuit, a large lawsuit against Eli Lilly involving
6   Zyprexa?
7   A    Yes.
8   Q    And one of the things he was doing was doing research,
9   right, as is his job as an expert witness?
10   A    Yes.
11   Q    And he told you that he had certain documents that were
12   covered by a sealing order in a discovery process from Eli
13   Lilly?
14   A    Yes.
15   Q    Which you didn't have?
16   A    Correct.
17   Q    And that you had had on your website certain documents
18   from the FDA approval process that he didn't have?
19   A    Yes.

He also establishes that Egilman showed at least some concern for compliance with the protective order:

3   Q    From the first conversation, he wouldn't tell you the
4   substance of the documents and he said he wouldn't give them
5   to you unless you subpoenaed them, is that right?
6   A    He didn't tell me about the substance of them and yes, he
7   wouldn't give them.
8   Q    So then at some point before you got the documents you
9   asked him to and he did read you the provisions of the sealing
10   order in regard to notice, is that right?
11   A    Yes.
12   Q    The sealing order doesn't say that you never ever get to
13   look at these documents, it just says that you have to give
14   somebody notice, is that right?
15   A    Yes.

He then elicited testimony about Gottstein's client, who Gottstein asserts could have been subjected to forced medication with, among other drugs, Zyprexa.

There's some discussion of the service of the subpoena on Egilman, and of Egilman's sending the subpoena to the general counsel of Lilly:

23   Q    You then served the subpoena correctly according to the
24   laws of the Court in Alaska on Dr. Egilman, is that correct?
25   A    I think there is some dispute over that.
1   Q    You felt you did?
2   A    Well, yes, I did at the time.
* * *
7   Q    When he got it by fax, the subpoena has the date
8   returnable, who is the lawyer issuing the subpoena, the court,
9   the judge that it's returnable to?
10   A    Yes.
11   Q    He faxed it that day during the ordinary business day to
12   the general counsel of Eli Lilly is that right?
13   A    Yes.
* * *
18   Q    You are aware of the magnitude of the sales of Zyprexa
19   compared to the total sales of Eli Lilly, is that right?
20   A    I believe so.
21   Q    And you are also -- and you've got an opinion in your
22   mind that Zyprexa litigations would be an important matter to
23   the Eli Lilly general counsel, is that right?
24   A    I would think so, yes.

And Hayes sums up his argument in one series of questions:

18   Q    So now Wednesday they get a fax, Dr. Egilman won't give
19   them to you on Thursday, right?
20   A    Right.
21   Q    Won't give them to you on Friday?
22   A    Right.
23   Q    Won't give them to you on Saturday?
24   A    Right.
25   Q    Won't give them to you on Sunday?
1   A    Right.
2   Q    Monday you set up this FTP so you can get these documents
3   more quickly?
4   A    Yes.
5   Q    But he doesn't give them to you quickly?
6   A    Right.
7   Q    The first time he starts transmitting documents to you is
8   after the close of business on Tuesday?
9   A    Right.
* * *
10   Q    In regard to dealing with Dr. Egilman, you never
11   contemplated once asking him to give you these documents or
12   tell you what was in these documents except in response to a
13   subpoena?
14   A    Correct.
15   Q    It was absolutely clear from your talking to Dr. Egilman
16   that he would not give you the documents without a legitimate
17   subpoena?
18   A    Yes.
19   Q    And you in fact you and he discussed what would
20   constitute sufficient notice under the protective order, is
21   that correct, how many days?
22   A    It was discussed.
23   Q    Now, one of the factors that was raised is the protective
24   order says for instance if there is a subpoena from a
25   competitor, that three days notice is sufficient, is that
1   correct?
2   A    Yes.
3   Q    And in this case essentially there were seven days, five
4   working days, is that right?
5   A    I think that is accurate.

Gottstein's own attorney establishes that after Gottstein received the objections from Lilly, he stopped distributing the documents further and in fact declined further requests for the documents.

And then on re-examination, Lilly's lawyer lays out its argument pretty clearly:

11   Q    If you look at the [a]mended subpoena, we agree that Dr.
12   Egilman sent Lilly's general counsel the December 6 subpoena,
13   correct?
14   A    Yes.
15   Q    And that called for the production of documents on
16   December 20th, correct?
17   A    Yes.
18   Q    And then on December 11th you issued an amended subpoena,
19   correct?
20   A    The Court issued.  I requested it, yes.
21   Q    And then Dr. Egilman began producing documents the next
22   business day?
23             MR. HAYES:  Objection, not the next business day.
24   Q    It is the next business day, isn't it, sir?
25   A    I think it was two business days.  It was after the close
1   of the next business day, I believe.
2   Q    Your certification says that Dr. Egilman began producing
3   documents on December 12, correct?
4   A    Yes, but after the business day.
5   Q    You start -- you were shipping documents out to your
6   recipients on December 12, correct?
7   A    Yes, after the business day.
8   Q    Well, regardless of when you sent them out, you had
9   documents from Dr. Egilman on December 12, one business day
10   after your amended subpoena, correct?
11   A    It was after the business day.
12   Q    On December 12th, correct?
13   A    After the end of the business day on December 12th, yes.

So that's really the issue, I think, in terms of evaluating the intention of Gottstein and Egilman: They point out the time that elapsed between the faxing of the subpoena to Lilly's GC, while Lilly focuses on the fact that the subpoena faxed to Lilly's GC at least suggested that the documents would be produced on the identified deposition date, which was more than a week later than when the documents were in fact produced.  The amended subpoena was never sent to Lilly.

Vera Sharav then testified.  She's part of one of the organizations that received the documents and is challenging the reach of the injunction.  A fair amount of her testimony has to do with the argument that the documents being publicly available is a good thing, and her view that the settlements to date have been in an effort to keep documents secret.  Most of it is not really relevant to the documents dispute, but just to give what I think is a fair excerpt:

24   Q    And what did the documents show with respect to the
25   practices of Eli Lilly?
1             MR. LEHNER:  Objection, your Honor.
2             THE COURT:  I'll allow it.
3   A    In my opinion, this is about the worst that I have seen.
4   It borders on indifference to human life.  Eli Lilly knew that
5   Zyprexa causes hypoglycemia, diabetes, cardiovascular damage
6   and they set about both to market it unlawfully for off label
7   uses to primary care physicians and they even set about to
8   teach these physicians who were not used to prescribing these
9   kind of drugs to, they taught them to interpret adverse
10   effects from their drug Prozac and the other antidepressants
11   which induce mania and that is on the drug's labels.  They
12   taught them that if a patient presented with mania after
13   having been on antidepressants, that that was an indication
14   for prescribing Zyprexa for bipolar which is manic depression.
15   That is absolutely outrageous and that is one of the reasons
16   that I felt that this should involve the Attorney General.

An interesting little exchange followed about whether she should be required to return the documents -- she had not done so:

16             THE COURT:  He is here in court.
17             Paragraph 4 says:  "Mr. Gottstein shall immediately
18   take steps to retrieve any documents subject to this order
19   regardless of their current location and return all such
20   documents to Special Master Woodin. "
21             Come forward, sir.
22             Did you ask the witness to return the documents?
23             MR. GOTTSTEIN:  Are you asking me if I did?
24             THE COURT:  Yes.
25             MR. GOTTSTEIN:  Would you return the documents?
1             THE WITNESS:  I will return them if the Court orders
2   it.
3             THE COURT:  You refuse to turn them over at his
4   request?
5             THE WITNESS:  Yes.
6             THE COURT:  I'm ordering you to turn them over to
7   your attorney to hold them in escrow.
8             MR. MILSTEIN:  I'll do that, your Honor.
9             THE COURT:  Give the envelope to the attorney.
10             Are those all of the documents you have?
11             THE WITNESS:  Yes.
12             THE COURT:  You can seal it.  Sign it.  We'll hold
13   them in escrow subject to -- you'll hold them in escrow
14   subject to the order of the Court.
15             MR. MILSTEIN:  I'll do that, your Honor.

Then Rick Meadow, an attorney with the Lanier firm (who had retained Egilman), was called as a witness.  Meadow is actually on trial in the New Jersey Vioxx trial and joined by phone.

8   Q    You spoke to Dr. Egilman on December 13, correct?
9   A    Without looking at it, I believe so, yes.
10   Q    That was the Wednesday, December 13?
11   A    Yes.
12   Q    And you told him not to produce documents requested in
13   this subpoena that had been issued from the State of Alaska?
14   A    I said don't do anything with the subpoena until you hear
15   from me.
16   Q    And you did that because you knew there was a process
17   that was being followed under the protective order and that
18   Lilly had already started that process, correct?
19   A    I had received a phone call from Andy Rogoff and I told
20   him that I would reach out to Dr. Egilman and tell him not to
21   do anything.
22   Q    And Andy Rogoff was an attorney for Lilly?
23   A    Correct.
24   Q    And he said -- what did Dr. Egilman say to you?
25   A    He just said yes, Rick.
1   Q    And you -- what did you understand that to mean?
2   A    That he understood that I told him don't do anything.  I
3   don't want to read into other than what he said to me.
* * *
15   Q    Did you later learn that Mr. Gottstein -- I'm sorry.
16   Strike that.
17             Did you later learn that Dr. Egilman had already
18   begun transferring documents to Mr. Gottstein?
19   A    Yes.
20   Q    And after you learned what had happened in this case, you
21   terminated Dr. Egilman as a consultant in this matter?
22   A    For Zyprexa, correct.

Egilman's attorney then established that Egilman initially refused to sign the protective order without adding in an exception that would permit his distribution of documents to protect the public health.  The Lanier firm rejected that exception and Egilman ultimately signed one without that exception.  This exchange by Lilly's lawyer seems to summarize it reasonably well:

12   Q    This is Sean Fahey again.
13             Mr. Meadow, there were two protective orders
14   attached to your affidavit, one dated November 10, 2006 and
15   signed by Dr. Egilman on that date, the other signed by Dr.
16   Egilman four days later.
17             I'm going to read you paragraph 7 of your affidavit
18   which talks about that second affidavit and ask that you
19   respond to it when I am finished reading.
20             On November 14, 2004 -- I think that is actually
21   2006 -- November 14, 2006, Dr. Egilman executed another
22   protective order attached as Exhibit C.  On this order Dr.
23   Egilman made one edit to the second paragraph of the form
24   protective order in which he represented that he would abide
25   by the protective order "unless this conflicts with any other
1   sworn statements".  I inquired of Dr. Egilman as to why he
2   made this edit.  Dr. Egilman explained that if he were to be
3   subpoenaed by the FDA or Congress, he wanted to insure that
4   the protective order would not preclude providing testimony
5   concerning Zyprexa.  Since that explanation did not conflict
6   with my understanding of the purposes behind the protective
7   order, nor did it conflict with my understanding of the
8   protective order would not in any event have precluded such
9   testimony by Dr. Egilman, and because Dr. Egilman assured me
10   that he understood the protective order, I accepted this
11   protective order."
12             Is that true, Mr. Meadow?
13   A    Yes.

So the later-signed endorsement to the protective order did not have any exceptions besides when subpoenaed by Congress or the FDA.

Mr. Oaks from MindFreedom then testified about their activities, with the primary message being that they never received the documents from Gottstein, instead having pointed readers to sources online.

And that closed the evidence.  The parties discuss the briefing schedule and then the possible deposition of Dr. Egilman, which, as I noted yesterday, had this tidbit:

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
22   conducted?
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
17   categories.
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,
2   correct?
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.
* * *
16             MR. HAYES:  To make it simple, my client is going to
17   take the Fifth Amendment -- if they are going to say possibly
18   they are going to proceed with criminal contempt, my client is
19   going to take the Fifth Amendment.
20             THE COURT:  I don't see any point in bringing him
21   forward and wasting a lot of time.  I would think a letter to
22   that effect will have the equivalence of his taking the Fifth
23   for purposes of evidence.
24             MR. HAYES:  Yes.
25             THE COURT:  Do you concede that?
1             MR. HAYES:   I do.
2             THE COURT:  That will save us a lot of time if that
3   is the position.
4             When are you going to inform Mr. Hayes?
5             MS. GUSSACK:  Your Honor, I believe the evidence
6   that we heard yesterday and today provide a basis for seeking
7   sanctions against Mr. Gottstein as well as against Dr.
8   Egilman.
9             THE COURT:  He wants to know if you are going to
10   proceed with criminal contempt.
11             Actually, of course, the concept of criminal and
12   civil contempt is so vague and overlapping that it doesn't
13   make any sense from a conceptual point of view with respect to
14   the issue you are raising.  I think anybody who has been in
15   this field knows that but nevertheless, he said that if you
16   don't commit yourself not to proceed with a criminal contempt
17   sanction, his client will plead the Fifth Amendment.
18             So if you don't want to give him that assurance,
19   tell him that immediately, as soon as you can.  He will give
20   you a letter and then that simplifies matters.

Overall, my view is about the same as it was: Egilman has significant potential trouble.  Gottstein has somewhat less.  And the third-party distributors have a real solid argument that they should not be enjoined, since there's minimal evidence other than extremely coincidental timing that the documents they distributed came from the violation of the protective order.

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Investors' reaction to Sarbanes-Oxley, which is supposedly for their protection: costs outweigh benefits. [Kate Litvak @ SSRN; Ribstein] The ten worst state attorneys general. [Hans Bader @ CEI] Being a minor defendant in a mass tort. [Mass Tort Litiga... [Read More]

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Tracked on Jan 29, 2007 7:26:35 PM


You write - "And the third-party distributors have a real solid argument that they should not be enjoined, since there's minimal evidence other than extremely coincidental timing that the documents they distributed came from the violation of the protective order."

So what if the documents original source was the Eigelman leak? The leak spread to dozens of people, who in turn spread it to dozens more people, etc etc. A few degrees out, could you really still call this aiding and abetting, or is it just individual agents acting on their own accord?

Doesn't modern day network theory come into play in this equation? When Learned Hand wrote that the world cannot be enjoined, it is important to recall that we are all only separated by 6 degrees (not just an urban myth - It doesn't take hundreds of extensions to enjoin the world - only a few if they are applied iteratively.

Give Lilly any more injunctions and Kevin Bacon himself won't be able to post these links.

Posted by: Rachel | Jan 30, 2007 9:11:28 PM

The source of the documents certainly makes a difference as to the first set of third-party distributors (the folks to whom Gottstein sent them), and that is the group to whom that quote refers. Those are, mostly, the people in front of Judge Weinstein. If Judge Weinstein concludes that the documents came from Gottstein directly to them (and, perhaps, that they knew the source was iffy), then he's going to be more interested in coming after them.

The people beyond that (i.e., those that the EFF is there in relation to) have an even better argument.

But of course your argument is fairly basic to a lot of what I've written about the case, though not in this post, and I fundamentally agree with what you've said. Be sure to go through some other posts (Technorati search is over on the right).

Posted by: Bill Childs | Jan 31, 2007 3:32:32 AM

I believe the manufacture of this drug should take full responsiblility.
Each an every individual to which dependended upon the chemicals of this drug should be compensated for their losses.
My mothers physician did not detect or know symtoms of the chemicial being prescribedand administered by the nursing home.
The loss of detection was far more than just a monetary value.

Life and limbs of a human body where effected by this use of this drug.
No person can return life after a body is cold and dead.

I feel that the courts should not hide the evidence of the damages.

The population medically depends upon for medical chemical treatment for mental illnesses.
It is the same for all types of drugs .
Education for and of the public and the medical profession is of great value and understanding.
The courts should not hide because of the monitary value of the companies who market the product. The reason a product is developed is to save or aid the people being adminsitered the drug to alter or decrease the symptoms of the mental illness.
A more effective direction of further studies could most like denouce probable causes in court cases of negligence or abuse actions in courts.
I feel liley drug company should be more open to the public. I feel they should be more concerned of publice and less likely to lose the competition for marketing.

Posted by: DK Ginter | Aug 7, 2007 2:09:47 PM

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