The Zyprexa Chronicles: Judge Issues "Invitation" to Times Reporter

On Monday, US District Court Judge Jack Weinstein issued an "invitation and order" calling on New York Times reporter Alex Berenson to appear in court and explain how he obtained various Eli Lilly documents that were under a court seal. The documents relate to a class action lawsuit against Lilly for injuries--diabetes among them--allegedly suffered by numerous patients who took Zyprexa. Weinstein is the judge handling the case, which was actually settled in 2005 for about $700 million. The monies have yet to be paid out to patients since several states are trying to get in on the award because various state medical systems paid for some of the patients' drugs.

In his invitation, Weinstein states:

"This invitation is intended to permit Alex Berenson to confront testimony received at a hearing in this court on January 16-17, 2007 implicating him in a conspiracy to obtain and publish confidential documents sealed by this court." (Emphasis mine.)

Having read the transcript in this matter, it appears to me that Berenson did nothing illegal and his only conspiratorial act was to report the news. That's precisely the kind of conspiracy that the authors of the Bill of Rights had in mind when they crafted the First Amendment. Also, it is highly unusual for a court to ask a reporter to show up and explain how he or she obtained documents in a civil case. Courts generally respect the firewall between government and the press, so I am confused as to why Weinstein even needs Berenson's testimony in order to rule upon the alleged violation of the court's seal on these documents by David Egilman and James Gottstein.

Based upon my own ongoing reading of the documents, I find very little in them that merited a court seal in the first place. Generally, court seals are ordered in product liability cases in order to preserve trade secrets, and I see little in the documents I have reviewed that could be construed as trade secrets. Courts in this country have recently become far too casual in slapping court seals on documents of every stripe. Last year, the Seattle Times did an excellent series on how courts in Washington State will seal almost anything a defendant asks to have sealed and how that violates the public interest. (Side note: if the Seattle Times isn't a finalist for the public service Pulitzer for the series, then I will be surprised.)

The Times has not issued a formal statement on the matter yet. In an email, Diane McNulty, a spokeswoman for the paper, wrote:

"We just received all the papers in this matter, including the invitation, and we're studying them and will respond to the judge in due course.

We believe our reporting in this matter was very newsworthy and was derived from routine newsgathering procedures."

I agree. The Zyprexa documents are indeed "very newsworthy" and there is nothing in the testimony about how Berenson obtained the documents that strikes me as out-of-the-ordinary. Berenson ended up writing several articles, based upon the documents, concerning Lilly's attempts to downplay the side effects of Zyprexa and to market the drug for off-label uses.

For those not familiar with how reporters--especially investigative reporters--work, here are a few principles that we have tattooed on our forebrains: If there is a document pertaining to government actions or corporate misbehavior, we want it; if the facts check out and rise to the level of news (ie, something the public needs to know), then it must be reported because that is our job and our role as a check on governments, corporations and other parties who would prefer to keep certain matters hidden from public view; we will do anything short of breaking the law to obtain documents and report them to the public; we don't have to answer to any of the three branches of government (executive, legislative, judicial) for our behavior, except in highly unusual circumstances; the Framers want us to report the news, regardless of how uneasy it might make certain governments, corporations and individuals; be first to break the news; have fun. Well, that's part of what's in the playbook, at any rate.

Eli Lilly has said it had no role in prompting Weinstein's invitation.

I think the Times behaved in line with the best traditions in the news business and should politely decline Judge Weinstein's voluntary order. I bet they do.

This whole matter relates to an injunction sought by lawyers for Lilly who would like the judge to reseal the leaked documents, which represent a portion of the approximately 11 million pages of documents in the case, and enjoin certain individuals from making them publicly available. But the documents have been available through various online sources for the last five weeks and have been downloaded by hundreds of individuals and several news organizations, so an injunction in this case strikes me as useless.

"The documents are easily available," says Fred von Lohmann, a senior staff attorney with the Electronic Frontier Foundation in San Francisco. "Courts are not supposed to be in business of issuing futile injunctions."

Or as one legal commentator recently described Lilly's attempt to get the documents resealed: "Judge Tries to Unring Bell Hanging Around Neck of Horse Already Out of Barn Being Carried on Ship That Has Sailed."

Posted by Philip Dawdy at February 2, 2007 12:05 AM
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