2nd Circuit Affirms Injunction Against Lawyer Who Disclosed Zyprexa MDL Documents

2nd Circuit Affirms Injunction Against Lawyer Who Disclosed Zyprexa MDL Documents

NEW YORK - (Mealey's) The Zyprexa multidistrict litigation court properly enjoined an Alaska attorney and mental health advocate from obtaining and disseminating confidential discovery documents produced by Eli Lilly and Co., a panel of the Second Circuit U.S. Court of Appeals ruled Aug. 12 (Eli Lilly & Co. v. James B. Gottstein, No. 07-1107, 2nd Cir.).

According to the panel, Dr. David Egilman was hired by the Lanier Law Firm in Houston as an expert witness in the Zyprexa MDL and the firm supplied him with about a half-million discovery documents from Lilly.  The panel said Egilman wanted to publicize the documents and contacted New York Times reporter Alex Berenson, who put Egilman in touch with James B. Gottstein, an attorney and mental health advocate in Anchorage, Alaska.

The panel said Gottstein intervened in a guardianship case pending in the Third District Superior Court in Anchorage and issued two subpoenas to Egilman for documents involving Zyprexa and 14 other drugs.  Egilman complied, and Gottstein began distributing the documents.  Berenson wrote stories based on the documents.

From December 2006 to February 2007, special masters and judges in the U.S. District Court for the Eastern District of New York, where the Zyprexa MDL is located, issued temporary and permanent injunctions against Egilman, Gottstein and others to whom Gottstein had given the documents.  Gottstein appealed his injunction.

"We agree with the district court that Mr. Gottstein's actions in acquiring and disseminating certain of these documents involved his aiding and abetting a violation of the court's protective order through the use of sham subpoenas," the Second Circuit said.  "The district court had the power to enjoin Mr. Gottstein in these circumstances."

The panel said the District Court did not abuse its discretion when it characterized the Alaska court subpoenas as a "sham" and found that Gottstein aided and abetted Egilman's violation of the MDL court's protective order.  It said that even if it assumed that Gottstein's goals of aiding in the Alaska guardianship case and disclosing Lilly misconduct were legitimate, his aiding and abetting of a violation of the protective order "precludes our finding of a proper purpose."

The panel noted that Gottstein served a subpoena even though he was on notice from Egilman about the protective order, an action that cannot be characterized as legitimate.

[Editor's Note:  Full coverage will be in the Aug. 19 issue of Mealey's Emerging Drugs & Devices.  In the meantime, the opinion is available at www.mealeysonline.com or by calling the Customer Support Department at 1-800-833-9844.  Document #28-100819-020Z.  For all of your legal news needs, please visit www.lexisnexis.com/mealeys.]

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