NEWS MEDIA UPDATE · CALIFORNIA · Prior Restraints · Jan. 9, 2006
Judge issues do-not-publish order to newspaper
Jan. 9, 2006 · A San Diego court has ordered The San Diego Reader not to publish information about a synthetic blood substitute it obtained under the California Public Records Act. The paper had reported that the substitute had been tested on patients without their consent.
The Reader must not disclose any confidential information such as scientific formulas or development processes that are trade secrets unless it proves at a later hearing that it is lawfully permitted to do so, San Diego Superior Court Judge Joan M. Lewis ruled last month.
The court’s ruling came after Northfield Laboratories Inc. sought a restraining order to prevent the newspaper from publishing alleged trade secret information about PolyHeme, a synthetic blood substitute that Northfield manufactures. Northfield sought the order on the same day that the parties had met to try to agree to what information The Reader would not publish because it constitutes a trade secret.
The court issued the restraining order without giving the newspaper a chance to respond.
“It was a very unusual procedure, because, while California law says that you can do that under extreme circumstances, I don’t think this case fits that criteria,” said Richard Spirra, an attorney for The Reader. Moreover, “the court’s order is a patently unconstitutional prior restraint on the press,” said Spirra. “It doesn’t meet the requirements of California law that dictate when trade secrets may be protected nor any First Amendment concerns.”
The Reader used the California Public Records Act to obtain the documents that discuss PolyHeme from San Diego County, which has access to the documents through the University of California in San Diego, where clinical trials with the synthetic blood are conducted.
The parties will meet again Tuesday to try to reach an agreement about what information The Reader may not publish because it is a trade secret.
The contested information is already at issue in a separate case involving the California Records Act in which The Reader has asked the University of California in San Diego to produce more information. A hearing regarding USD’s refusal to produce that information is scheduled for February. If the parties reach an agreement about the contested information tomorrow, Spirra expects that there will be no need for the February hearing.
In July, The Reader reported that PolyHeme was being tested only on trauma patients too ill to consent, according to The Associated Press. For its report, the paper relied on all the pages in San Diego County’s possession, the AP reported. The Reader then sued the university in September for further information related to the clinical trials.
(Northfield Laboratories, Inc. v. James Holman; Media counsel: Richard Spirra, Luce, Forward, Hamilton & Scripps, San Diego, Calif.) — SB