According to MindFreedom's director, David Oaks, "This appears to be about Eli Lilly using its billions of dollars to try to intimidate grassroots critics."
The January 3, 2007, hearing was held based on a request by Lilly to extend the temporary injunction issued on December 29, and to force Jim Gottstein to appear in New York City for a deposition within 5 days.
Attorney Sean Fahey of the Pepper Hamilton LLP law firm argued the case for Lilly. Attorney, Ted Chabasinski, appeared on behalf of Judi Chamberline, and Attorney, John McKay, represented Jim and Terrie Gottstein.
In reviewing the transcript of the hearing, as far widening the scope of the injunction process by adding the names of more people who somehow obtained the documents, Judge Weinstein himself recognized the futility of issuing more injunctions in attempt to stop the dissemination of the documents stating:
"The court takes no position on whether and how they can be used by others who received them from other sources. After all, the New York Times has disseminated them. This court is not going to issue an order telling the New York Times to return the documents. So everybody has access to them. It takes no position on whether and how they can be used by others who may have them from other sources or from any sources, and on whether and how Lilly can protect itself against such use. But I don't want to be put in a position, as representative of the court, of issuing futile injunctions. So I'm going to limit the order to those who I've mentioned."
During the hearing, Judge Weinstein granted Mr Chabsinski's and Mr McKay's request for more time to respond to the motions and a new hearing date was set for January 16, 2007.
The injunction that was extended to January 16, now includes the name Eric Whalen and his web site at www.joysoup.net; the MindFreedom web site at www.mindfreedom.org, and the Alliance for Human Research Protection sites at www.ahrp.org and www.ahrp.blogspot.com, and specifically states:
"This temporary mandatory injunction further requires the removal of any such documents posted at any website; requires communication of this Order to anyone to whom these documents have already been disseminated, informing them of the terms of this Order; and enjoins the named individual, organization and entities from posting information to websites to facilitate dissemination of these documents."
According to Mr Chabasinski, the extended injunction was supposed to simply restate the content of the first two injunctions; but he says Lilly added new wording apparently without the judge's full knowledge or consent.
"Eli Lilly appears to be trying to chill free speech itself," says Mr Oaks, "and is slipping in wording to squash even general discussion of this controversy by its critics on the web."
In a January 4, 2007, letter to Judge Weinstein, Mr Chabasinski states, "At no time was there any discussion of changing the terms of the injunction."
"Nor did you indicate in any way that you intended to change the terms of the injunction," he wrote.
According to Mr Chabasinski, Lilly added provisions which in his view are a serious violation of his clients' First Amendment rights. "One could read these provisions," he told the court, "to forbid even the discussion of the issue of the suppressed documents."
Due process, he points out, requires notice and an opportunity to be heard on the matter.
"As you know," Mr Chabasinski wrote in the letter, "my position is that the documents under protective order are not trade secrets, but criminal evidence, since they show nothing but the attempts of the defendants to hide the lethal, toxic effects of Zyprexa."
He points out that Judge Weinstein has been presiding over the Zyprexa lawsuits and has access to an enormous amount of evidence about the culpability of Lilly and the injuries and deaths caused by the suppression of information about Zyprexa's toxicity.
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