NEWS MEDIA UPDATE · SECOND CIRCUIT · Confidentiality/Privilege · Feb. 7, 2007
Times reporter refuses judge’s ‘invitation’ to testify
Feb. 7, 2007 · New York Times reporter Alex Berenson has declined a federal judge’s “invitation” to voluntarily appear in court and explain how he obtained information he used in his reporting about Eli Lilly and the health risks of the company’s anti-psychotic drug Zyprexa.
In his Jan. 25 invitation to Berenson, U.S. District Judge Jack Weinstein in Brooklyn implied that Berenson had been part of “a conspiracy to obtain and publish documents” that allegedly describe health risks associated with Zyprexa. The judge placed the documents in question under a protective order because of several ongoing lawsuits involving Eli Lilly.
Weinstein’s invitation also noted that if Berenson chose to appear, he would be “subject to cross examination.”
Times attorney George Freeman wrote Weinstein a reply letter dated this week in which he thanked the judge “for offering Mr. Berenson the opportunity voluntarily to appear before the Court” but declined the invitation on Berenson’s behalf.
The invitation to Berenson was unusual because it was not compulsory — that is, Berenson will not face any legal consequences at this point for declining to testify. Normally, court officials use mandatory subpoenas when they want a person to give testimony.
“As a matter of long-held principle,” Freeman wrote, “we believe that it would be inappropriate for any of our journalists to voluntarily testify about news gathering methods at the Times . . . just as we would vigorously resist any effort by any party to compel such testimony.”
Berenson penned several articles for the Times last year about how Eli Lilly allegedly marketed Zyprexa for improper and unapproved and downplayed the drug’s health risks.
Although Eli Lilly alleges that the documents in question are still under seal, they have been posted online by third parties with no direct interest in the case, according to a court filing.
(In re Zyprexa Products Liability Litigation, Media Counsel: George Freeman, The New York Times, New York) — ES