Zyprexa Lilly nytimes: Documents Borne by Winds of Free Speech

[Guest guest]

Yahoo has been acting strangely again, so apology in advance if this has

already been posted. Frist is probably weeping on behalf of his

patrons who own Eli Lilly. Furthermore, if a King can do no wrong, when

the King does wrong, those errors do not exist and should not be reported.

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January 15, 2007

Link by Link

Documents Borne by Winds of Free Speech

By TOM ZELLER Jr.

http://www.nytimes.com/2007/01/15/technology/15link.html?_r=1 & ex=1326517200 & en=d\

1 & oref=slogin

A showdown is scheduled for a federal courtroom in Brooklyn tomorrow

afternoon, where words like “First Amendment” and “freedom of speech” and

“prior restraint” are likely to mix seamlessly with references to

“BitTorrent” and “Wiki.”

It is a messy plot that pits Eli Lilly, the pharmaceutical giant at the

center of several articles in The New York Times suggesting that the

company tried to hide or play down the health risks of its leading

antipsychotic drug, Zyprexa, and lawyers representing various individuals,

organizations and Web sites — all arguing that their online speech has

been gagged.

The case has attracted the attention of the Electronic Frontier

Foundation, the venerable digital rights group based in San Francisco, and

one of its lawyers, Fred von Lohmann, who is now representing an anonymous

Internet user caught up in the legal fracas.

“One of the core missions of the foundation’s 16-year history has been to

establish that when you go online, you take with you all the same civil

rights with you had with you in prior media,” said Mr. von Lohmann. “But

of course, you need to fight for that principle.”

•

The quick background:

It all began with Dr. Egilman of Massachusetts, who was a consulting

witness in ongoing litigation against Lilly. Dr. Egilman had in his

possession a trove of internal Lilly documents — not all of them

flattering to the company — sealed by the court as part of that

litigation.

Comes B. Gottstein, a lawyer from Alaska, who was pursuing unrelated

litigation for mentally ill patients in his state. He somehow got wind

(and precisely how is the subject of separate legal jujitsu) that Dr.

Egilman had some interesting documents.

Mr. Gottstein sends Dr. Egilman a subpoena for copies. Hell begins

breaking loose.

In a letter dated Dec. 6, Dr. Egilman informed Lilly’s lawyers, as was

required by the order sealing the documents, that he had been subpoenaed.

Lilly’s lawyers expressed their deep displeasure in a Dec. 14 letter to

Mr. Gottstein, and politely told him to back off. In a response a day

later, Mr. Gottstein informed them, among other things, that it was too

late, and that some of the material had already been produced.

It seems Mr. Gottstein was also apparently in a sharing mood, which is how

hundreds of pages ended up with a Times reporter, Berenson — and

about a dozen or so other individuals and organizations.

This is also how copies of the documents ended up on various Web servers —

and when that happened, things changed. While surely painful for Lilly,

the online proliferation began flirting with some bedrock principles of

free speech and press, as well as some practical realities that looked a

fair bit like toothpaste out of its tube.

Nonetheless, last month, United States District Judge Jack B. Weinstein

ordered Mr. Gottstein to provide a list of recipients to whom he had

distributed the contraband pages, and to collect each copy back.

The Times, which politely declined to oblige, has since been left out of

the legal wrangling, but on Dec. 29, the court temporarily enjoined an

expansive list — 14 named individuals, two health advocacy groups

(MindFreedom International and the Alliance for Human Research

Protection), their Web sites, and a site devoted to the Zyprexa issue —

not just from “further disseminating these documents.” They were

specifically ordered to communicate the injunction to anyone else who had

copies, and enjoined from “posting information to Web sites to facilitate

dissemination of these documents.”

That’s right — it appeared that even writing on their Web sites something

like, “Hey, there’s a site in Brazil where you can get those Zyprexa

documents,” would run afoul of the injunction.

The order was extended by Judge Weinstein on Jan. 4, and tomorrow the

court will revisit the issue at length.

As Mr. von Lohmann and the Electronic Frontier Foundation see it, the

injunction is simply untenable. Whatever the legal merits of Lilly’s

claims against Mr. Gottstein and Dr. Egilman for violating the seal, the

court’s power to stifle the ever-growing chain of unrelated individuals

and Web sites who, after one or two degrees of remove, had nothing to do

with the Lilly litigation, cannot extend to infinity. Very quickly, Mr.

von Lohmann argues, you are dealing with ordinary citizens who are merely

trading in and discussing documents of interest to public health.

“Judges have a natural inclination that if documents have been stolen

under their watch, they want to get them back,” said Mr. von Lohmann,

whose Doe client was a contributor to the site

http://zyprexa.pbwiki.com — a wiki where a hive of users compiled and

contributed links and information relating to the Zyprexa case. “But there

are some limits to how many degrees of separation the court can reach.”

There is also a traditionally high bar set for placing prior restraint on

the press — which, whether Judge Weinstein recognizes it or not, very much

includes a colony of citizen journalists feeding a wiki.

Of course, the other, slightly more absurd side to all this is that

attempting to stop the documents from spreading is, by now, a Sisyphean

task.

“The court is trying to get the genie back into the bottle until it can

sort out what’s going on through the course of litigation, which takes

place at non-Internet speed,” said Zittrain, a professor of

Internet governance and regulation at Oxford and a founder of the Berkman

Center for Internet & Society at Harvard Law School.

“Perhaps the court thinks that whoever is adding to the wiki is among the

parties to the original case,” Professor Zittrain said. “That’s

understandable, but it puts the court in a no-win situation. It’s left

issuing an order that sounds like no one in the world is allowed to post

the documents.”

For its part, even The Times, which often posts original documents for its

readers, tried to put the things online when Mr. Berenson wrote his first

article, but the raw pages — more than 350 individual image files weighing

in at over 500 megabytes — proved unwieldy.

H. Freeman, vice president and general counsel for The Times, said,

“The Times fulfilled its role by doing a lot of research and then

highlighting and including the most important issues and documents in a

series of well-placed news articles.”

•

For now, copies of the Lilly documents sit defiantly on servers in Sweden,

and under a domain registered at Christmas Island, the Australian dot in

the ocean 224 miles off the coast of Java. “Proudly served from outside

the United States,” the site declares. There are surely others.

On his TortsProf blog http://www.snipurl.com/Torts, G. Childs, an

assistant professor at Western New England School of Law in Springfield,

Mass., put it this way in a headline: “Judge Tries to Unring Bell Hanging

Around Neck of Horse Already Out of Barn Being d on Ship That Has

Sailed.”

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