The judge issuing injunctions in the Eli Lilly-Zyprexa-Documents case has decided that reporters at the New York Times enjoy the full protection of the First Amendment but that other reporters and media outlets do not.
The secret documents at the center of this hailstorm were provided to the New York Times, and several other journalists, by the same source. The Times took the lead and ran a series of articles quoting the documents, and an editorial calling for a Congressional investigation of Eli Lilly.
On December 29, 2006, Lilly obtained a temporary injunction ordering a list of people, including many authors and journalists, to return the documents and not disseminate them further which included Terrie Gottstein, Jerry Winchester, Dr Peter Breggin, Dr Grace Jackson, Dr David Cohen, Bruce Whittington, Dr Stefan Kruszewski, Laura Ziegler, Judi Chamberlin, Vera Sherav, Robert Whitaker, and Will Hall.
At a January 3, 2007, hearing, even though he was not asked to, Judge Jack Weinstein announced that he was not going to issue an injunction against the Times and specifically stated:
"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."
However, following a few weak arguments by Lilly attorneys during the hearing, the court extended the injunction, not to cover the Times, but to include the Wiki internet web site, Eric Whalen's web site, the Alliance for Human Research Protection web sites, and the MindFreedom web site.
The Times still has the documents which are now off-limits to all the other journalists, and notably, Lilly has not even bothered to ask the court to order the Times to return them or not disseminate them further.
For its part, when the Times first broke the story, and Lilly started publicly mouthing off about obtaining injunctions to get the documents back, the Times basically said that it would not return them. "Our customary practice is to retain documents which we legitimately required during our news gathering process and which are likely to be relevant to future reporting," said Times attorney, George Freeman, in a Times article on December 20, 2006.
There are certainly no gripes against the Times itself because the information in the documents probably would have remained hidden forever had it not been for the Times. But a judge and a corporate giant can not decide that a reporter at the Times will be afforded more freedoms than any other reporter in this county.
The decision to allow one newspaper to publish important information and not others, should have all journalists enraged. Lilly's ability to get a court to issue an injunction against any journalist at the drop of a hat should be troubling to all members of the media.
Freedom of the press can not be based on the size of a publication or its readership, or in the case of the Times in this instance, the recognition of the power and availability of funds of a newspaper to rise up and fight against a violation of that right.
Last month, the Times reported that the documents show Lilly concealed the side effects of Zyprexa, specifically weight gain and diabetes, because the company knew the information would have a negative effect on sales, and also that Lilly directed its sales representatives to encourage doctors to prescribe Zyprexa off-label to patients who were not schizophrenic or bipolar.
The documents quoted by the Times were designated as confidential pursuant to Case Management Order 3, a Protective Order entered on August 9, 2004, which gave Lilly the right to designate documents confidential, so long as Lilly in good faith believed that they were. Legal experts now contend that the information quoted by the Times was never entitled to protection.
Several persons listed in the injunction have obtained attorneys to fight for the public's right to know what's in the documents. Attorneys representing interested parties include, Lilly attorney, Sean Fahey, of Pepper Hamilton LLP; Ted Chabasinski, on behalf of Judi Chamberlin and MindFreedom; John McKay, represents Jim and Terrie Gottstein; and Alan Milstein appears on behalf of Ms Sharav, the AHRP, and Dr Cohen.
On January 9, 2007, attorney, Fred von Lohmann, of the Electronic Frontier Foundation, jumped in the ring by filing a motion on behalf of John Doe, a citizen-journalist who contributes to the Wiki web site, to object to the injunction that names Wiki.
A January 8, 2007, brief filed by Lilly states: "The materials at issue here are subject to a valid protective order under Rule 26(c)(7) for trade secrets and other confidential information, and thus irreparable harm will result in the absence of an injunction."
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