Editor's note: This story was originally published February 12, 2007
A federal judge in New York on Tuesday ruled that Anchorage attorney Jim Gottstein, a New York Times reporter and a doctor conspired to steal documents about the controversial drug Zyprexa and then publicize what the papers said.
Senior U.S. District Judge Jack Weinstein ordered eight individuals, including Gottstein and Dr. David Egilman of Massachusetts, to return any documents they still have and not to distribute them further. The order did not cover New York Times reporter Alex Berenson because the drug's manufacturer, Eli Lilly, chose not to challenge him. The judge also conceded he could not call back material that had already gone up on Web sites.
"We feel absolutely vindicated," said Lilly spokeswoman Marni Lemons about the ruling.
Both sides said they may appeal. Lilly wanted the judge permanently to bar several specific Web sites from publishing the documents. Gottstein said he vigorously disputes the findings in the 78-page order.
"The Internet, with its almost infinitely complex worldwide web of strands and nodes, is a major modern tool of free speech and freedom both here and abroad," Weinstein wrote. The government should be hesitant to try to control it, he wrote.
Enforcement of the order is on hold for 10 days.
The drug company records were sealed in a massive court case over Zyprexa. Gottstein got copies by subpoenaing them from Egilman, an expert in that case. He then provided the documents to the Times. The paper reported the records showed a decade-long effort to downplay the drug's health risks to protect sales.
Zyprexa, approved for treatment of schizophrenia and bipolar disorder, is Eli Lilly's top-selling drug. It's linked to weight gain in significant numbers of patients, and there are allegations that it also increases the risk of diabetes. Lilly says that's not proven and calls the drug a lifesaver for many.
The judge concluded that Berenson, Egilman and Gottstein "conspired to obtain and publish documents in knowing violation of a court order not to do so, and that they executed the conspiracy using other people as their agents in crime," the order said.
Gottstein on Tuesday maintained that he lawfully obtained the documents for an Alaska case he is involved in by serving a subpoena on Egilman.
"His conclusion that there is a conspiracy makes no sense because if anybody wanted to violate the order, there was no reason to go this subpoena route," Gottstein said. If the trio didn't care about following the rules, he said, the records could have simply been slipped to the reporter.
The judge says the trio should have asked him first.
The documents include "a substantial number whose publication would be annoying, embarrassing, oppressive, and burdensome to Lilly; they reveal trade secrets, confidential preliminary research, development ideas, commercial information, product planning and employee training techniques," the judge found.
Egilman, board certified in internal medicine, was hired by plaintiffs suing Eli Lilly.
The judge's order describes how Egilman and Berenson enlisted Gottstein to get the records out through an unrelated court case. Editor's note: This story was originally published February 14, 2007
Gottstein, representing an Alaska Psychiatric Institute patient, sent Egilman two subpoenas. Egilman began transferring files electronically on Dec. 12, and Gottstein started making copies right away.
"I had my laptop burning DVDs and my main computer burning DVDs, another laptop ... ," according to testimony by Gottstein quoted in the order. Gottstein then gave access to the files to The New York Times.
He estimated there were a few thousand pages of records. Overall, there are about 15 million documents in the New York case.
"We've said all along documents were intentionally cherry picked by these people who are our adversaries ... ," Lemons said.
Within days, The New York Times began publishing a string of Zyprexa stories alleging Lilly hid the truth about a harmful medicine.
The records also went to a National Public Radio reporter, congressional aides, a book author and others, including leaders of mental health advocacy organizations.
Lilly still intends to file a motion seeking sanctions against Gottstein, Lemons said.
The International Center for the Study of Psychiatry and Psychology -- of which Gottstein is a board member -- has established a legal defense fund for him.
Daily News reporter Lisa Demer can be reached at firstname.lastname@example.org and 257-4390.