Amgen Subpoena Violates Reporter’s Privilege

     (CN) – Journalism privilege protects the editor-in-chief of The Cancer Letter from having to identify his confidential “Wall Street sources” who blabbed that an Amgen drug failed at a clinical trial, a federal judge ruled.
     It’s been over eight years since the weekly newsletter reported that the Amgen anemia drug Aranesp performed poorly in a study on head and neck cancer patients.
     Roughly a dozen paragraphs into “Danish Researchers Post Long-Awaited Aranesp Results-Ever So Discreetly,” the article said:
     “Several Wall Street sources who monitor Amgen confirmed that they have been awaiting these results and were not aware of them until hearing about the closing of the trial from this reporter.”
     Civil claims by shareholders, alleging that Amgen misled them about Aranesp’s safety, have since been consolidated in Los Angeles federal court.
     Amgen slapped the Cancer Letter’s Paul Goldberg with a subpoena this past May, claiming he had information that could help their case, and Goldberg moved a month later to quash the subpoena.
     U.S. District Judge Amit Mehta in Washington, D.C., agreed Friday that Goldberg’s testimony could cut to the “heart” of Amgen’s legal defenses – namely, that the disclosure of the study did not cause the shareholders’ losses and that the market had been aware of the study.
     The court nevertheless slammed Amgen for trying to force Goldberg to testify about his sources without first trying to seek the information elsewhere.
     “Amgen argues that it cannot reasonably be expected to depose a large quantity of ‘securities analysts covering the biotechnology sector’ in the hope of finding the two with whom Goldberg spoke,” the 21-page opinion states. “Unfortunately for Amgen, that is precisely what the law in this circuit requires.”     
     Steven Lieberman, an attorney for Goldberg, applauded what he called “an important first amendment victory.”
     “Judge Mehta’s excellent opinion explained that companies in litigation cannot simply use journalists as a regular part of the discovery process,” Lieberman said in an email. “They may do so only when they have undertaken the extensive alternative steps that the constitution requires of them.”
     “I would be very surprised to see Amgen again seeking testimony from Mr. Goldberg,” the Rothwell, Figg, Ernst & Manbeck attorney added.
     As precedent, Judge Mehta had cited the case of the former Department of Energy scientist Wen Ho Lee, a Los Alamos scientist accused of passing on nuclear secrets to China.
     When information about this espionage investigation got leaked to the press, Lee set out on a broad hunt for the possible sources within the government before seeking to subpoena a reporter.
     “To unearth the identity of the leaker, Lee deposed no less than 20 government officials from the Department of Justice, the Federal Bureau of Investigation, and the Department of Energy,” the opinion states. “Only after those efforts failed to identify the leaker did Lee seek to compel testimony from members of the media, which the district court granted.”
     Amgen’s case is analogous, Mehta said, since the drug company’s lawyers estimate that “roughly 25 or 26 securities analysts” could have been Goldberg’s sources.
     “Deposing a large number of analysts in the hope of finding the two that spoke to Goldberg might indeed be akin to looking for a needle in a haystack, as Amgen contends,” the opinion states. “But the law requires Amgen to have conducted a thorough search of the hay before deposing Goldberg, which it failed to do.”
     August has been a cruel month for Amgen, which agreed last week to pay $71 million to settle 48 states’ complaints that it used false claims to sell Aranesp and the arthritis drug Enbrel, in similar litigation.
     That deal resolved some issues from a $762 million settlement of criminal and civil claims in 2012 – the largest such fines against a biotech company in history.
     Amgen admitted then that it pushed Aranesp for off-label uses and at unapproved dosages. Doctors can prescribe drugs for off-label uses, but drug companies are not allowed to push them for it.

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