A New York Times Reporter's First Amendment Civil Disobedience Claim: The Case of the Secret Eli Lilly Zyprexa Documents

Last month, Judge Jack Weinstein of the U.S. District Court for the Eastern District of New York issued a decision in litigation that, as he noted in his opinion, "raises intriguing questions of when it is appropriate to conduct civil litigation in secrecy, and of what are appropriate limits on civil disobedience by newspaper reporters, forensic experts, and attorneys."

The litigation involved top-selling anti-psychotic drug Zyprexa. The plaintiffs claim that the drug's maker, Eli Lilly, gave inadequate warnings regarding the risk of obesity and diabetes in Zyprexa users.

During the litigation, a reporter, an expert, and an attorney who was not otherwise involved in the case decided to defy the court-imposed protective order that was issued to maintain the confidentiality of certain documents.

Their motivation was both urgent and understandable: They were concerned for the health and safety of those taking Zyprexa. But their tactics were questionable:

In order to circumvent the protective order, they concocted a deceptive ruse to ensure that the content of documents produced in the ongoing Zyprexa litigation became public.

Moreover, they failed to try legal means before they resorted to illegal ones, ignoring a specific procedure that would have allowed them to challenge the documents' secrecy vis-à-vis the public in court. As I will explain, this error complicated what would have otherwise been a simple case of justified civil disobedience.

The Judge Should Not Have Imposed the Protective Order In the First Place

Initially, the parties in the Zyprexa litigation agreed that the documents they produced to each other in civil discovery should be sealed and thus inaccessible to the public. Accordingly, Judge Weinstein imposed a protective order ensuring that no one other than the judge, the parties to the litigation, and those working for them or acting on their behalf would have access to the documents. Among the sensitive documents that were sealed were a number produced by Eli Lilly relating to Zyprexa's side effects.

Judge Weinstein explains in his opinion that he imposed the protective order "so that discovery could be expedited and the individual cases promptly settled or otherwise disposed of on their merits." Let's focus briefly on each of these rationales for imposing the order:

First, how would discovery be "expedited" by the protective order? That would happen because, without a protective order, Eli Lilly would fight against having to produce some of its documents, on the ground that they contained trade secrets or other legally-protected information. Then the court would have had to make specific determinations as to which documents Eli Lilly would have to show the plaintiffs and the public, and which it could legitimately keep to itself.

What's so bad about that? It's time-consuming, but so is virtually all litigation. Rulings could have been made on categories of documents; they need not have been made document-by-document. Also, Judge Weinstein could easily have sent specific issues to the Magistrate Judge assigned to the case (who did deal with some of the issues relating to the document ruse), or the parties could have attempted mediation on these issues.

In addition, it was probably well worth spending the time to go through the documents more specifically, for there was a strong public interest in what they contained. The filing of the lawsuit alone demonstrated that a significant number of people were at least alleging that Zyprexa had side effects that were not fully disclosed. Moreover, conditions such as obesity and diabetes can hardly be faked (though their cause can always be disputed). Also, medical weight records will typically show when a person became obese, and medical records will also show when a person was diagnosed with diabetes; thus, the timing, too, would be very difficult to fake.

These are not subjective, self-reported symptoms, after all. Thus, the simple filing of the suit showed that there was at least some correlation here between Zyprexa use and obesity and diabetes; the question was whether there was causation, too.

In light of these facts, it seemed very likely, even at the outset of the case, that the public had an interest in the release of the Eli Lilly Zyprexa documents. This is especially true since Zyprexa users are a vulnerable population; Zyprexa is prescribed for schizophrenia and bipolar disorder. (Ultimately, the public interest in the documents was clear: The New York Times eventually considered them to be significant enough to merit a series of lead stories.)

Second, how would the protective order encourage the cases to be "promptly settled or otherwise disposed of on their merits"?

Once again, some time would be saved during discovery. But more to the point, thanks to the protective order, with a settlement Eli Lilly would be able, in effect, to buy secrecy for even those documents it produced that were not trade-secret protected, and that the public did have an interest in seeing: Indeed, these determinations might never even be made given the veil of secrecy the protective order cast over the proceedings.

Thus, with the protective order, Eli Lilly now was induced by both a "stick" and a "carrot": If it agreed to a settlement, it could avoid the "stick" of potentially whopping damages, and enjoy the "carrot" of keeping even those documents that did not contain trade secrets, and were of legitimate interest to the public, a secret. The secrecy could be enforced by a term of the settlement agreement under which the parties would promise to continue to keep the documents confidential, and never to speak of their contents.

Predictably, the settlement amount would be higher than the actual value of the plaintiffs' injuries due to the alleged side effects, for it would take into account the benefit of maintaining secrecy for the Lilly documents. That secrecy cost the plaintiffs nothing to give to Lilly, yet Lilly doubtless would have paid for it. (This dynamic is why plaintiffs tend to get a partial windfall when settlement occurs under a protective order, or even prior to the filing of a complaint.)

In sum, analyzing the rationales that undergirded the protective order show why its imposition might, on the whole, not have been in the public interest: It might have both given the public short shrift, and given the plaintiffs more money than they deserved based on their injuries.

Fortunately, however, Judge Weinstein wisely included a provision in the protective order setting down the proper procedure to be followed by those - within or outside the litigation - who sought to challenge it.

A Major Mistake on the Part of the New York Times Reporter: Failing to Try Legal Methods First

That's where New York Times reporter Alex Berenson made a crucial mistake: He failed to try to avail himself of the protective order's procedures, before going through with a ruse to circumvent it.

Here's how the ruse worked: Berenson - with the help of one of the experts in the case, who was bound by the protective order -- convinced an Alaskan attorney to subpoena the documents by intervening in a separate case. (In a civil case, attorneys can typically serve subpoenas themselves, without court approval; if the recipient believes the subpoena is improper, she can legally fight it in court, and not comply until she gets a ruling.) Since the protective order contained an exception for the production of information sought pursuant to a valid subpoena, the documents were produced.

Not only did the ruse participants hide their real identities with the subpoena gambit, using the Alaska attorney as a "beard," they also "gamed" Lilly regarding the timing of the matter - so that Lilly believed it had more time to challenge the documents' production, than it actually did. Ultimately, the documents ended up all over the Times, then all over the Web.

Going through with the ruse without first seeking an exception from the protective order was a foolish mistake by Berenson. For one thing, if he had simply asked, the judge might have granted him an exception, at least for some subset of the documents: As Judge Weinstein's opinion shows, he is well-aware of the First Amendment interests involved, and takes them very seriously.

On the other hand, Judge Weinstein's opinion also specifically indicated that he deemed many of the documents protected either by trade-secret law or as confidential commercial information. Thus, in the end, how the judge would have balanced the First Amendment interests against these protections, had Berenson actually asked for a ruling on a protective-order exemption, is not precisely clear.

Nonetheless, it would have been worth Berenson's at least trying to procure the exemption. If he'd done so and failed, he still could have gone through with the ruse (which he could even have initiated simultaneously, if he felt time was of the essence in getting the information out there one way or another). After all, no "red flags" would have gone up for Eli Lilly, since the requester, in the ruse, wasn't Berenson or any other reporter; it was an attorney in Alaska.

Had Berenson taken this path, his actions would have raised only the pure question of civil disobedience I will discuss below: Was this a case where lawbreaking should be punished, or applauded? The gratuitous lawbreaking of trying to "game" the protective order, rather than moving to alter it, makes the moral issue more complicated.

In the end, Berenson lucked out in that Eli Lilly never sought an injunction - or, to my knowledge, sanctions -- against him or the Times. But it might have been very hard to predict, in advance, that this would be the case. So Berenson's mistake not only made his case for civil disobedience weaker, but it also might have had more practical costs as well.

Interestingly, Judge Weinstein not only didn't enjoin Berenson or the Times, he also didn't enjoin the websites - in essence because it would have amounted to closing the barn door after the horses had already escaped. (As I discussed in a prior column, trade secrets violations can be very difficult - both as a matter of law and a matter of practicality - to punish when secrets are released on the Internet, particularly when the first releaser may well be anonymous.)

If Berenson Had Tried and Failed to Get a Protective Order Exception, Would the Ruse Have Been Justified, In Order to Get the Documents Before the Public?

While Berenson's tactics, in my view, were both wrong and foolish, the result of his actions was noble: The public now knows specific information about the dangers of Zyprexa. Eli Lilly should have released this information as soon as it knew it. Berenson's decision to release it as soon as possible was the right one - all the more so, because the patient population here was an especially vulnerable one.

In general, companies' overprotecting drug-related information predictably harms patients - as well as possibly running afoul of the FDA. It also has other bad effects: Research is unnecessarily duplicated at different companies, in a waste of time and effort, and cruel experiments on animals are duplicated, too.

With companies' product formulas protected by patents, is it really necessary, also, to protect research that is of vital interest to the public under the rubric of trade secret law? In this instance, both diabetes and obesity can take years off one's life, as well as potentially affecting the quality of life, and there are other drugs for schizophrenia that patients might have chosen in lieu of Zyprexa, had they been fully informed.

Perhaps the saddest aspect of this case is that no insider at Eli Lilly dared to make these side effects public, even when they were known within the company. According to the Times, the effort to play down Zyprexa's health risks had spanned a decade. How many employees participated? How many knew what was happening?

Doubtless, the employees had signed confidentially agreements (a topic I discussed in another column). However, in the end, the failure to engage in civil disobedience when posed with a clear moral imperative that involves life and safety, is just another version of the Nuremberg defense: "I was just following orders." Whatever one thinks of Berenson's conduct, the true culprits here are all the unnamed employees who knew of genuine health risks, but declined to become whistleblowers to expose them.