Back in November 2006, plaintiffs’ laywers retaining Dr. David Egilman as an expert witness in a massive lawsuit against the makers of anti-psychotic drug Zyprexa gave him a half-million confidential company documents to review.  After reviewing them, Dr. Egilman seemingly decided the documents needed to be made public.  But there was a problem – the documents were covered by a protective order imposed by multi-district litigation (MDL) Judge Jack B. Weinstein, and the order applied to Dr. Egilman.  So the crusading expert phoned New York Times reporter Alex Berenson, who in turn suggested he call an Alaska lawyer, James Gottstein.

The resulting call to Gottstein set in motion a conspiracy to circumvent the Zyprexa document protective order.  Yesterday, in a forceful opinion, the U.S. Court of Appeals for the Second Circuit upheld a February 13, 2007 order by Judge Weinstein enjoining dissemination of the documents and requiring their return to defendant Eli Lilly.  The opinion’s concise recounting of the conspiracy shows how far some activists will go to advance their agendas and manipulate the legal process through leaks and other PR stunts.

After receiving Dr. Egilman’s call, attorney Gottstein, who is also a self-described “mental health advocate,” trolled the Alaska courts and intervened in an entirely unrelated case where the state had taken guardianship of a mentally impaired individual.  Not even knowing whether the patient had taken Zyprexa, Gottstein drafted a subpoena which, buried among scores of irrelevant requests, included a paragraph demanding that Dr. Egilman provide the Zyprexa MDL documents.  An Alaska court issued the subpoena, with which Dr. Egilman immediately complied, producing the documents without, as required by law, informing the plaintiffs’ firm that retained him or defendant Eli Lilly.

What happened next should surprise no one: the very day after Dr. Engilman got the documents, The New York Times began a series of front-page articles, authored by Alex Berensen, which quoted the documents extensively.  As the Second Circuit wrote, “Understandably alarmed, Eli Lilly applied for and received a series of orders culminating in an injunction.” 

The Second Circuit’s decision clarifies that district court judges’ protective orders apply not only to those who sign them, but also prevent active efforts by third parties to assist in violation of the orders.  The opinion pointedly explains why this is important:

If courts cannot bind third parties who aid and abet the violation of their protective orders, then any party, agent, attorney or expert who comes into possession of material he wanted to use against the producing party could simply disseminate the information quickly, then deal with the damages issue after the fact.

The federal courts must take their job of policing lawsuit abuse – which occurs in high-stakes litigation like the Zyprexa case and in low-profile suits against America’s small businesses all too often – very seriously.  WLF consistently advances this point through its publications, litigation filings, and educational programs, and we are pleased to have a precedent such as the Second Circuit’s to cite as required reading for other judges.

Note: For more on Judge Weinstein’s initial injunction, read this WLF Legal Backgrounder by Hollingsworth LLP partners Martin Calhoun and Rebecca Womeldorf.