NEWS MEDIA UPDATE · SECOND CIRCUIT · Prior Restraints · Feb. 22, 2007
Wiki Web site no longer enjoined in Eli Lilly case
Feb. 22, 2007 · An anonymous Web poster who challenged a judge’s order enjoining a wiki – a Web site that allows users to edit the content of a site – from posting a link to confidential documents about Eli Lilly’s controversial drug Zyprexa has won his court battle.
A federal judge in New York ruled Feb. 13 that a previously issued preliminary injunction will no longer apply to the enjoined Web site.
However, U.S. District Judge Jack B. Weinstein ruled that the injunction still holds to some other parties, who must return and refrain from disseminating the documents.
Eli Lilly is being sued over Zyprexa in both federal and state courts by patients who say the pharmaceutical company deliberately downplayed the side effects of the drug, which is used to treat schizophrenia and bipolar disorder. The documents at the center of the controversy are materials about Zyprexa that Lilly submitted under seal during the discovery process.
Plaintiff’s expert David Egilman had the documents, but was subject to a protective order to keep the documents confidential.
In his opinion, the judge accused New York Times reporter Alex Berenson of conspiring with Egilman and another attorney, James Gottstein, to obtain the documents. Gottstein got involved in a separate case in which he subpoenaed information about Zyprexa from Egilman, then sent copies to Berenson and more than a dozen others, including congressional staffers and mental health activists.
Times attorney George Freeman said in a statement that Weinstein’s opinion “vastly overstates Alex’s role in the release of the documents.”
The Times published articles using the information contained in the confidential documents. Others posted the documents online and e-mailed the link to others. In response, Lilly asked the court for an injunction.
The court issued a preliminary injunction ordering most of the people who had received the documents directly from Gottstein to refrain from disseminating them, remove posted documents, and tell others to whom they had given the documents to do the same.
Lilly did not pursue an injunction against the Times or Berenson.
Web sites that posted or linked to the documents but did not receive them directly from Gottstein were also enjoined. In a Jan. 4 injunction, Weinstein wrote, “This temporary mandatory injunction further requires the removal of any such documents posted at any website.”
The court specifically mentioned the wiki Web site zyprexa.pbwiki.com. An anonymous poster who uses the Web site, known in court papers as “John Doe,” challenged the judge’s order.
In the Feb. 13 permanent injunction, the judge lifted the injunction on the site zyprexa.pbwiki.com as well as other Web sites.
“Mindful of the role of the internet as a major modern tool of free speech, in the exercise of discretion the court refrains from permanently enjoining websites based on the insubstantial evidence of risk of irreparable harm,” the judge wrote. “Restrictions on speech, even in the context of content neutrality, should be avoided if not essential to promoting an important government interest.”
Fred von Lohmann, an attorney from the Electronic Frontier Foundation who represented John Doe, said in a press release, “This ruling makes it clear that Eli Lilly cannot invoke any court orders in its futile efforts to censor these documents off the Internet.”
However, other parties are still enjoined in the permanent injunction. The judge ordered them to return all copies they have of the documents and prohibited further distribution of the documents. This means that they will not be able to post the documents to Web sites.
Most of the parties enjoined in the permanent injunction received the information firsthand from Gottstein. But at least one of them, David Oaks, received the information third hand.
The judge reasoned that the injunction was not a violation of the First Amendment, arguing that the documents were acquired unlawfully through the discovery process.
The judge distinguished the Zyprexa case from the noteworthy 1996 case Procter & Gamble v. Bankers Trust.
In Procter & Gamble, the Sixth Circuit held that an injunction prohibiting Business Week from publishing litigation filings that had been improperly sealed was unconstitutional.
The Zyprexa case is different, the judge opined, because the documents were discovery documents rather than litigation filings; the documents were never unsealed, unlike those in the Procter & Gamble case; and the enjoined parties are not members of the media.
Von Lohmann disagreed with the judge’s interpretation of Procter & Gamble, arguing that the final injunction constituted an unconstitutional prior restraint.
“This is the first occasion to my knowledge where the court has granted a prior restraint against truthful information on a matter of public concern where the enjoined individuals were not involved in misappropriating the material in question,” von Lohmann said.
(Zyprexa Litigation, Doe’s Counsel: Fred von Lohmann, Electronic Frontier Foundation, San Francisco) — CS