(CN) – The 2nd Circuit blocked an attorney from releasing more than 500,000 pages of confidential information about Eli Lilly & Co.’s antipsychotic drug Zyprexa. The lawyer and mental-health advocate had obtained the records by issuing subpoenas to help an expert witness side-step a protective order, the court explained.
The federal appeals court in Manhattan upheld a federal judge’s order barring Alaska attorney and mental-health advocate James B. Gottstein from releasing more than 500,000 pages of discovery in a federal product-liability action, some of which he already leaked to the media.
The documents reportedly “reveal trade secrets, confidential preliminary research, development ideas, commercial information, product planning, and employee training techniques” related to the drug used by some 20 million schizophrenia patients.
Eli Lilly faces thousands of lawsuits accusing it of hiding some of the drug’s potentially dangerous side effects from consumers.
Although not a party to the litigation, Gottstein agreed in 2006 to help an expert witness for the plaintiffs circumvent a protective order and disseminate the documents to The New York Times and others.
Gottstein then intervened in an unrelated case in the Alaskan Office of Public Advocacy and issued two subpoenas for the documents, although his client did not take Zyprexa.
A short time later, the Times ran a series of articles on Zyprexa based on the information contained in those documents.
Eli Lilly convinced a judge to issue a temporary injunction to stop further distribution of the documents, alleging that Gottstein had helped the expert witness violate the protective order through “sham subpoenas.”
Gottstein appealed, arguing that his motive for obtaining the documents — to reveal Eli Lilly’s alleged “illegal marketing” of the drug — justified his actions. He also claimed that the court had no authority to issue the injunction, and that the documents should not have been confidential in the first place.
The three-judge panel rejected each of Gottstein’s arguments.
“Causing a subpoena to be served, with notice that compliance with it by the complicit recipient would violate a court’s lawful order, cannot be characterized as ‘legitimate,’ even if the improperly obtained documents might otherwise be useful had they been obtained appropriately,” Judge Richard Cudahy wrote.
“Ultimately, Gottstein’s nebulous assertion that the subpoenas were somehow ‘grounded in law and fact’ does not legitimize the manner in which they were employed to facilitate the violation of a court’s order; nor does it take away from their being part of a sham proceeding.”
The circuit ruled that Gottstein had clearly aided and abetted the violation of the protective order, and that the “resulting injunction is a perfectly appropriate device to foreclose further dissemination of the confidential documents produced under the protective order.”