TortsProf Blog

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Southwestern Law School

Monday, January 15, 2007

So what do you do when the bell has rung, anyway?

The Info/Law blog has a useful post by William McGeveran (Minnesota) describing the basic lay of the land on the Zyprexa case, and concludes with this:

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.

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Is it clear that the expert is at fault here? That is, given that his expertise is in medicine not law, how culpable is he for responding to a subpoena for documents covered by a protective order? Granting that the prudent thing would have been for him to obtain legal advice before acting, it seems to me that he is arguably much less culpable than someone who gratuitously or carelessly released the documents. Furthermore, he presumably thought that they were going only to another lawyer, not out onto the net. Should he be expected to have forseen that?

Posted by: Bill Poser | Jan 15, 2007 1:09:44 PM

The documents thus far suggest that the expert was at least aware that the approach being taken was sketchy. He is also a multiple-time repeat player in mass torts (including at least one in which I was defense counsel, in case that matters) and is far from naive about protective orders.

Gottstein indicated in a hearing (see that Egilman contacted him "out of the blue" to inform Gottstein that Egilman had secret Lilly documents. The chronology suggests, though perhaps not conclusively, that Egilman and Gottstein intentionally avoided the ordinary application of the protective order in order to get the documents produced.

That said, I haven't seen a very thorough articulation from Egilman of his view of what happened. I'm pretty comfortable in predicting that Egilman will be found to be at fault and to have known that widespread disclosure was likely, but who knows?

Posted by: Bill Childs | Jan 15, 2007 2:10:08 PM

The Law is an interesting beast. No wonder folk out there feel obligated to ignore it.

Sure, yes:

"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"

That is why we have ended up with the situation that vast swathes of adverse science about drugs has been hidden from doctors and patients who depend on that science to make rational decisons.

That is why the law will, and should be broken - until it is changed. It's called democracy.


Posted by: Aubrey Blumsohn | Jan 16, 2007 8:30:42 AM

Well, it's called civil disobedience, and it's certainly an important aspect of democracy. But generally I'm inclined to think that in any particular situation where such an action is being considered, one tries the legal approach first.

In many mass torts, documents do get dedesignated and widely disseminated through legal methods, whether through applications to the court or through their disclosure in open court (where they can be tested and testified to). There wasn't even an effort at that here (if the facts as alleged are to be believed). You don't get a judge much more sympathetic to such arguments than Judge Weinstein, and so there was even a pretty good chance of setting up useful precedent.

Posted by: Bill Childs | Jan 16, 2007 10:29:43 AM

It's great that a law professor is talking about this. But its disconcerting that the main thing worth discussing is who is going to get it in the neck.

What I'd really like to see discussed is why the current USA law is an ass, and does nothing to protect the consumer of these drugs, and why the USA is a land still NOT of the free, let alone free discourse. This is a fantastic blog, but even "you" have to talk in a circuitous manner.

When Sweden passes a law in 2001, and puts big money into secreting out USA officials so that they can live in freedom and say things they couldn't under the present administration, ... you have to know there is something serious rotten at the core, not just of USA LAW, but of the wheels that turn it: the administration and corporations who "jury-rig" (pardon the pun) the system to suit themselves. (It is notable that I've not seen any of these dissident's comments in the USA press, though the rest of the world is pretty well informed. And the USA government bemoans the fact that it is becoming a global butt of jokes?)

The question is, how are the ordinary decent Americans going to reinforce the basic core of your supposed constitution? By sitting here wondering who is going to get it in the neck? How can the American people get out there and re-establish the values that underpinned the US constitution in the first place? Or are they all (including you) being cooked like frogs into a George Orwell's 1984 situation?

Posted by: Hilary Butler | Jan 16, 2007 12:02:13 PM

Well, I don't feel warm, but I guess that's the nature of the frogs being boiled, isn't it? (Also the nature of Massachusetts in January, even this January, which is crazy warm.)

My focus on this blog is on the litigation side of things. While fully recognizing that the leak of documents may (probably does) serve some legitimate uses, it bothers me, quite a bit, that there was evidently no effort to follow the procedures in the CMO to get the documents legitimately released before following another approach. (I should note that Gottstein and others contend that he did follow the applicable rules, and if that turns out to be the case, great. The evidence to date suggests otherwise.) Perhaps it's naive of me to hope that the procedures would work (whatever "work" means), but documents do get dedesignated in products and other litigation all the time, and Judge Weinstein is the sort of judge who would listen to those arguments carefully.

So I think there are two interesting aspects - one is the front end (was the CMO complied with?) and the other, and probably more interesting, is the the back end - implications of blogs, wikis, Tor, and all the rest on efforts to keep documents secret, whether legitimately or not.

That's not to dismiss your concerns, and at least some of them are concerns I share. The scope of the blog is limited, though, in terms of what I post...most of the time, anyway. But I welcome, and encourage, bigger issue discussions. So thanks.

Posted by: Bill Childs | Jan 16, 2007 12:25:07 PM

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