Some More on the Zyprexa Order

Some overall reactions to Judge Weinstein's order (linked to below):

The basic takeaway is that Judge Weinstein is completely convinced that Dr. Egilman, James Gottstein, and Alex Berenson conspired (a term he uses, along with "conspiracy," thirty-eight times in the order) to avoid the protective order, and he wants to do what is practical to mitigate the effects of that conspiracy.  But he recognizes the futility of really preventing the documents' distribution (something I've noted before too).  The bottom line result -- enjoining the people who received the documents from Gottstein and have not returned them, refusing to enjoin websites, and presumably scaring the hell out of the "conspiracy" trio -- tracks those conclusions precisely.  The actual impact on the availability of the documents will be approximately zero.

I'm a little skeptical of the Court's First Amendment conclusions, but I'm not a con law guy either, so my view is relatively uneducated.  And the breadth with which he sees his powers to enjoin seems perhaps enthusiastic, but it's not something I've looked at carefully.

The order points up what is a real problem (one I'm writing about in long form, hopefully to get submitted this spring) -- that past treatment of leaking documents in disregard of protective orders -- hasn't put in place the right kind of incentives to ensure that orders are enforced.  When litigants and courts perhaps once could hope to unring the bell, today it's impossible with internet distribution.  Judge Weinstein certainly hints in this order that he's going to make at least two of the three involved very uncomfortable, but to my knowledge courts have been if not blase, not particularly enthusiastic about tracking down or punishing those who violate their orders.  He expressly acknowledges the need to set up proper incentives:

Conspirators in the instant case who deliberately thwarted a federal court’s power to effectively conduct civil litigation under the rule of law, as well as those in concert with them, should be enjoined to deter further violations of this and other courts’ orders.

* * *

It is not necessary now to decide whether in the long run the public was better served by this conspiracy to flout CMO-3 than by seeking direct and open revelation through amendment of the court’s protective order.  Even if one believes, as apparently did the conspirators, that their ends justified their means, courts may not ignore such illegal conduct without dangerously attenuating their power to conduct necessary litigation effectively on behalf of all the people.  Such unprincipled revelation of sealed documents seriously compromises the ability of litigants  to speak and reveal information candidly to each other; these illegalities impede private and peaceful resolution of disputes.

There's another effect of electronic communication that I don't think I've mentioned before (and that I'll also address in the article), and that's the exponential growth of the number of pages in play.  I don't know how many pages have been produced by Lilly; the Order references "millions" of documents.  One case I was involved in had, if memory serves, something approaching tens of millions of pages produced, with individual witnesses sometimes having hundreds of thousands of pages of documents on a server.  Colleagues who had been involved in pre-e-mail litigation suggested that it would have been uncommon to see even a million pages in one case; perhaps someone else can confirm. 

It boggles the imagination to think that a litigant can do a particularly good job of designating documents accurately as to confidentiality, and no doubt it frustrates people like Dr. Egilman to see documents he believes are inaccurately designated as confidential (especially since he is, I think, unlikely to conclude that Lilly's commercial concerns are a reasonable basis for keeping many thinigs confidential).  And that frustration -- that view that there is massive overdesignation -- may well make experts, attorneys, litigants, and others more prone to want to disregard protective orders.  (It's worth observing that Judge Weinstein concludes that in fact the bulk of the documents were appropriately designated as confidential.)

Of course, neither Gottstein, Egilman, Berenson, nor indeed anyone else (besides apparently some third-party payors) made any effort to follow the mechanism set forth in the protective order to de-designate the documents.  As I've mentioned before, if you're looking for a judge who is likely to be friendly to such an effort, Judge Weinstein is a good one.  But there was no effort at all.

And of course, the plaintiffs' signing on to keeping the documents confidential may reflect a recognition that keeping the documents secret gives the plaintiffs greater leverage in further settlement discussions (recall that tens of thousands of cases have already settled).

In any event, some money quotes:

A New York Times reporter, Alex Berenson, was aware of the protective order.  He discussed with a plaintiffs’ expert, Dr. David Egilman, means of escaping the order’s restrictions and obtaining protected documents in the expert’s possession . . . even though Egilman had agreed in writing to be bound by the order. . . .

Both Berenson and Egilman were cognizant of the fact that paragraph 14 of CMO-3 took account of the possibility that the protected documents could be subpoenaed by courts or executive agencies.  So Berenson provided Egilman with the name of an Alaska attorney, James Gottstein, unconnected to the instant litigation, who might be willing to employ a pretense to subpoena the documents and help disseminate them in violation of the protective order. . . .

To carry out the scheme for obtaining and disseminating the protected documents, Gottstein intervened in a state case in Alaska wholly unrelated to Zyprexa.  In that case, he then subpoenaed from Egilman confidential documents he knew to be under the protective order which bore no relevance to the Alaska litigation.  The subpoenaed documents were sent by Egilman to Gottstein pursuant to an expedited amended subpoena about which Lilly was deliberately kept in the dark so that it would be unable to make a timely objection. . . . Gottstein immediately sent the confidential documents on to Berenson and others. . . . .

None of the three conspirators, Berenson, Egilman, and Gottstein, sought a lifting or modification of the protective order, despite the declassification procedures provided for in paragraph 9 of CMO-3.  See In re Zyprexa, No. 04-MD-1596, 2004 WL at *5.

While the order ends up rejecting some of the arguments (presented by the EFF and others) that the breadth of the injunction sought by Lilly would run into constitutional problems, Judge Weinstein does explicitly recognize the First Amendment relevancy:

A perplexing issue is presented by Lilly’s request for an injunction against websites to which the conspirators sent the documents or which might have been used for further dissemination by those to whom the documents were originally sent. . . .  The internet, with its almost infinitely complex worldwide web of strands and nodes, is a major modern tool of free speech and freedom both here and abroad.  Its reach extends as far as, and perhaps exceeds, that of newspapers and other traditional media.  The law is rightly hesitant about allowing government –– including the courts ––  to inhibit and restrict the use of such modern instruments of communication.  See U.S. Const. amend. I.

I think it was perhaps more significant than was made explicit here that the PSC was on board:

Irresponsible people may exercise their own right and opportunity to speak in a manner abusive and constrictive of the rights of others on the internet, in the press, and in other fora.  Those whose rights have been abused by the conspirators in violation of the court’s protective order include Lilly and tens of thousands of plaintiffs and their attorneys who depended upon CMO-3 and sealing orders of the court to effectively prosecute this important litigation without unnecessary breach of the parties’ privacy.  It is significant that both the PSC and Lilly support the issuance of the injunction now being issued.

On the notion that the Times's situation is analogous to the Pentagon Papers:

Nor is this a case of a newspaper obtaining, with clean hands, documents provided to it by government employees, whistleblowers, or protestors.  See Smith v. Daily Mail Publ’g Co., 443 U.S. 97, 103 (1979) (“[I]f a newspaper lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need . . . of the highest order.”) (emphasis supplied).  It is unlike New York Times Co. v. United States, 403 U.S. 713 (1971) (hereinafter “Pentagon Papers”).  In the Pentagon Papers case, there was no suggestion that the documents were purloined at the New York Times’ or Washington Post’s instigation.  Here, a reporter was deeply involved in the effort to illegally obtain the documents. . . .  Affirmatively inducing the stealing of documents is treated differently from passively accepting stolen documents of public importance for dissemination. . . .  But see Bartnicki v. Vopper, 532 U.S. 514, 528-29 (2001) (noting that the issue has been left open).  The New York Times itself appears to recognize the distinction.  See The New York Times, Ethical Journalism: A Handbook of Values and Practices for the News and Editorial Departments, 9 (Sept. 2004) (“Staff members must obey the law in pursuit of news.  They may not break into buildings, homes, apartments, or offices.  They may not purloin data, documents or other property, including such electronic property as databases and e-mail or voice mail messages.  They may not tap telephones, invade computer files or otherwise eavesdrop electronically on news sources.  In short, they may not commit illegal acts of any sort.”).

On what happened after Gottstein started to distribute the documents:

Individuals to whom Gottstein sent the documents began devising schemes to evade court orders to return the documents even before any such orders had been issued.  In an email dated December 16, 2006, Robert Whitaker wrote to Gottstein: “I would consider building a website that would, ahem, make all the documents available.  What could they do to me?  And how could they know how the documents got to me?  There are several channels apparently that could be the source.  You should proceed now in whatever way makes it easiest for you, and let others worry about getting this information out or making it public.”  Pet’r Findings of Fact, supporting ex. 30.

[Time to make dinner for the kids.  More later.]