Transcript of 3 January 2007 hearing in US District Court in which attorney Ted Chabasinski represented MindFreedom in dispute with Eli Lilly over suppression of their files about Zyprexa. The result was an extended Temporary Restraining Order (TRO) for a few days… but Eli Lilly changed the wording to include not just posting copies but “information” facilitating disseminating their files.
1
1 UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
2
3 – – – – – – – – – – – – – X
4 In re: ZYPREXA PRODUCTS
LIABILITY LITIGATION
5 – – – – – – – – – – – – – X
MDL No. 1596
6
United States Courthouse
7 Brooklyn, New York
8 January 3, 2007
11:00 o’clock a.m.
9
10
11 TRANSCRIPT OF PROCEEDINGS
BEFORE THE HONORABLE JACK B. WEINSTEIN
12 UNITED STATES DISTRICT JUDGE
13
APPEARANCES:
14
15 For the Plaintiff: LANIER LAW FIRM
BY: RICHARD D. MEADOW, ESQ.
16 EVAN M. JANUSH, ESQ.
17
18 For the Eli Lilly: PEPPER HAMILTON LLP
BY: SEAN P. FAHEY, ESQ.
19
20 Court Reporter: Burton H. Sulzer
225 Cadman Plaza East
21 Brooklyn, New York
(718) 613-2481
22
Proceedings recorded by mechanical stenography, transcript
23 hproduced by computer-aided transcription.
24
25
BHS OCR CM CSR CRR
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1 (Open court-telephone call placed.)
2 A VOICE: David Cohen.
3 MR. COHEN: Yes. I’m here in Philadelphia,
4 Pennsylvania.
5 A VOICE: Mr. Chabasinski.
6 MR. CHABASINSKI: Ted Chabasinski. I’m here in
7 Berkeley, California.
8 A VOICE: John McKay.
9 MR. McKAY: John McKay in Anchorage, Alaska.
10 A VOICE: George Lehner.
11 MR. LEANER: George Lehner in Washington, D.C.
12 A VOICE: Peter Woodin.
13 MR. WOODIN: Peter Woodin in New York.
14 A VOICE: Judge, can you hear all the voices
15 clearly?
16 THE COURT: I can hear you.
17 Call the case, please.
18 (Case called-appearances noted.)
19 THE CLERK: Civil cause for motion, in re Zyprexa
20 Products Liability Litigation.
21 THE COURT: Can you hear, gentlemen?
22 (Parties answer in the affirmative.)
23 THE COURT: There was an order signed by Judge Cogan
24 on December 29, 2006. Have you all received copies of it?
25 Anybody on the line who has not?
BHS OCR CM CSR CRR
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1 (No response.)
2 THE COURT: It indicated that the injunction signed
3 by Judge Cogan would remain in full force and effect until
4 January 3rd, at which time the Honorable Jack B. Weinstein
5 will hear further argument from any interested parties.
6 The interested parties named were Lilly, of course,
7 Terri Gottstein, Jerry Winchester, Dr. Peter Breggin, Dr.
8 Grace Jackson, Dr. David Cohen, Bruce Whittington, Dr. Stephen
9 Kruszewski, Laura Ziegler, Judi Chamberlin, Vera Sherav,
10 Robert Whittaker, and Will Hall
11 Yesterday, when I was informed of this order for a
12 temporary mandatory injunction, I issued an order of my own
13 setting this hearing at 11 o’clock a.m. today.
14 I take it all of you present by telephone or
15 otherwise have received that order; is that correct?
16 MR. CHABASINSKI: No. I didn’t receive the actual
17 order, but I was made aware of it by one of your staff.
18 THE COURT: Sorry you didn’t receive a copy.
19 MR. CHABASINSKI: No, I didn’t.
20 THE COURT: Who is this talking?
21 MR. CHABASINSKI: This is Ted Chabasinski in
22 California, representing Judi Chamberlin.
23 I was made aware of it by your staff. Unless there
24 was some information other than the fact that you set the
25 actual hearing, I have no problem with it. If there was
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1 something on that document indicating more information, I
2 would appreciate knowing what it is now.
3 THE COURT: No, it merely, as I recall, set the
4 hearing for today.
5 MR. CHABASINSKI: That was it, your Honor?
6 THE COURT: Yes.
7 MR. CHABASINSKI: Okay.
8 THE COURT: I think my staff was asked to try to
9 contact everyone that might be involved.
10 MR. FAHEY: For the record, we did serve the order
11 on Mr. Chabasinski’s client via e-mail, which was the method
12 that we had been given by Mr. Gottstein in terms of contacting
13 him.
14 MR. CHABASINSKI: I can barely hear what is being
15 said.
16 THE COURT: Give your name.
17 MR. FAHEY: This is Sean Fahey. I just said that
18 the order the court had asked us to provide, the court order
19 to the individual recipients — we used the e-mail provided to
20 us by Mr. Gottstein to communicate that order. It was the
21 same method of communication of the December 29th order of
22 temporary mandatory injunction.
23 THE COURT: I think that the business for the moment
24 is to determine whether the order signed by Judge Cogan on
25 December 29, 2006 at 4:00 p.m. should be extended, modified,
Burton H. Sulzer – OCR, CM, CRR
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1 or limited in any way.
2 I think probably — unless there is an objection —
3 the best way to proceed is to have Lilly speak and then have
4 the others present — the plaintiff present — and then the
5 people listed in the order, in the order that they are listed,
6 I’ll call their roll.
7 MR. FAHEY: Thank you, your Honor. This motion, the
8 emergency motion, was brought on Friday before New Year’s Eve,
9 was brought on behalf of both Eli Lilly & Company and their
10 law firms as members of the PSC.
11 We brought the motion based on some developments
12 which occurred since Judge Cogan issued his first order in
13 this matter of December 18th.
14 In that order, Judge Cogan, after hearing from
15 Mr. Gottstein and his attorney, found Mr. Gottstein had
16 deliberately and knowingly aided and abetted Dr. Egilman’s
17 breach of the CMO, the CMO in this case.
18 The order further required Mr. Gottstein to take
19 immediately take steps to retrieve any documents that he
20 disseminated after receiving them from Dr. Egilman and return
21 them to Special Master Woodin.
22 The people that are listed in the temporary
23 mandatory injunction are the recipients that Mr. Gottstein
24 identified in his certification to Mr. Woodin as recipients of
25 the documents.
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1 Mr. Gottstein, on December 22nd, informed the
2 parties that he had spoken with all the recipients of the
3 documents and that no one had refused to return them.
4 Unfortunately, at this point only two individuals
5 have returned them, and what we learned, which led to the need
6 for the temporary mandatory injunction, was that a number of
7 the recipients were taking active steps to disseminate this
8 information via the Internet.
9 There has been discussion about whether these have
10 been widely disseminated or not. The Internet is a very large
11 place, your Honor, but we can tell you that we see no evidence
12 of widespread dissemination. The fact is that as soon as we
13 learned of Websites that attempted to disseminate this
14 information, we have had them shut down.
15 One of the parties on the phone is representing an
16 individual from the MindFreedom.org organization, and I just
17 want to read to you one of the statements that they have
18 posted on a list serve on December 30th, which is after the
19 date of your Honor’s order — I’m sorry, of Judge Cogan’s
20 order — requiring the parties to not disseminate the
21 information and to remove them from Websites.
22 It says, as follows: Someone said — I’m quoting —
23 someone said that they thought the tore down load link on the
24 Wiki, W-I-K-I, which is a Website that facilitates
25 information, downloads information, was working. It is not as
Burton H. Sulzer – OCR, CM, CRR
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1 of now. It goes nowhere. So it’s apparently conclusive: I
2 no of no source for anyone to download these documents at this
3 time.
4 Now, despite these statements that there is no place
5 for anyone to download on the Internet, at least a number of
6 the individuals that are listed in this mandatory injunction
7 were taking active steps to continue to try to facilitate the
8 downloading of the information by providing information about
9 where these documents may be found.
10 The current information on these Websites all link
11 to Websites that do not provide access anymore because they
12 have been shut down. What we are simply asking the court is
13 to provide relief of enforcing the original order of December
14 18th, which required the return of the documents in the
15 possession of these recipients to Special Master Woodin and to
16 avoid further dissemination of them via any means, including
17 the Internet.
18 THE COURT: Do the plaintiffs wish to be separately
19 heard?
20 MR. MEADOW: Yes, your Honor. Richard Meadow from
21 the Lanier law firm. As a member of PSC, and on behalf of the
22 Lanier law firm, we join in the application made by Lilly.
23 THE COURT: Terri Gottstein, do you wish to be
24 heard?
25 MR. McKAY: Thank you, your Honor. This is John
Burton H. Sulzer – OCR, CM, CRR
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1 McKay appearing on behalf of Terri Gottstein. Miss Gottstein
2 is the wife of James Gottstein, who is the party referred to
3 in Mr. Fahey’s remarks.
4 I would ask, since you are just coming into this
5 case after being gone while this came up, I would ask your
6 indulgence. I understand from a letter that I received, sent
7 by Mr. Fahey after 8 o’clock last night, that he’s made an
8 application to you which we may want to address further
9 concerning an order to show cause.
10 I would simply ask at this point that you entertain
11 the possibility that there may be two sides to the story and
12 that the facts as portrayed in the letter may not be the final
13 word — at least there may be, at there often is, another side
14 to the story when there is a chance to be heard on this.
15 With respect to the order that Judge Cogan entered,
16 Mr. Gottstein has concerns and reservations about a number of
17 things related to securing the order, including questions of
18 due process.
19 As Mr. Fahey indicates, Mr. Gottstein was on the
20 phone during that hearing, as was I. At the same time I
21 indicated that I was on the phone, having just been contacted
22 by Mr. Gottstein as the hearing was beginning. He did not
23 have an opportunity to consult with counsel or to review this
24 matter in advance or have any notice.
25 I’m not trying in this hearing to raise those
Burton H. Sulzer – OCR, CM, CRR
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1 questions, your Honor, other than to say that this is a
2 serious matter. Mr. Gottstein has taken this seriously.
3 When Eli Lilly’s attorney, Mr. Jameson, sent him a
4 letter advising him of Lilly’s objections, no further
5 distribution was made by him, he voluntarily complied with the
6 order to.
7 He complied with the order — began complying with
8 the order before it was signed, issued a certificate of
9 compliance outlining in great detail the steps that he has
10 taken.
11 There was a hearing before Judge Cogan, which
12 addressed in detail the steps that he has taken. My
13 understanding is a daily transcript had been ordered somewhat
14 routinely in this case.
15 I don’t believe there is a transcript that is in the
16 record of that hearing, the most recent hearing of Judge
17 Cogan, but if you do have access to that, you will see that
18 Mr. Gottstein has been diligently complying.
19 So in terms of this request, your Honor,
20 Mr. Gottstein’s believes — and we can take this up at a
21 further time, I assume — that he acted appropriately, did not
22 act inappropriately. We understand that there is room for
23 disagreement there, but the point is that once the order was
24 issued, he has fully complied.
25 He has contacted the individuals to whom he gave it.
Burton H. Sulzer – OCR, CM, CRR
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1 I believe that more than two people have returned the
2 document. I know that Mrs. Gottstein represented that, in
3 responding to the order immediately provided her copy back to
4 him, as did another individual. Those are both listed as
5 distributed, and I believe at least one or more of the other
6 parties have done so to Master Woodin. He could respond on
7 that.
8 In any event, Mr. Gottstein does not object to the
9 provision. He believes that the documents — that the public
10 interest is served by disclosure of these documents, but that
11 in complying with the court’s order, he has taken appropriate
12 steps to comply, so that I don’t know if Mr. Fahey is
13 requesting a continuation of the December 29th order — it
14 sounds like he is — but we understand the desirability of the
15 parties to the case to continue the order and preserve that
16 status quo while issues are being resolved.
17 We’re not asking for that, but we understand that,
18 and it’s completely consistent with what Mr. Gottstein has
19 done to date since the order was issued and before.
20 THE COURT: By Mr. Gottstein, you mean James
21 Gottstein?
22 MR. McKAY: Yes, your Honor. James Gottstein is the
23 attorney in the Alaska case who subpoenaed the documents from
24 Dr. Egilman, which kicked off this controversy, your Honor.
25 There is something that I assume will be taken up at
Burton H. Sulzer – OCR, CM, CRR
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1 an appropriate time, but Dr. Egilman was subject to a
2 protective order issued by this court, which required that he
3 give notice to Lilly, and a reasonable opportunity for Lilly’s
4 counsel to object.
5 He did give notice to Lilly the day that he received
6 the subpoena from Mr. Gottstein and then, after some days had
7 passed, released the documents and he has not received an
8 objection from Lilly’s counsel. Lilly believes, I’m
9 confident, that he did not wait a reasonable time. He
10 believes that he did. That’s a factual question. In the
11 meantime, Lilly obtained these orders.
12 On behalf of Terri Gottstein, the spouse, who
13 received a copy and is subject to this order, I can tell that
14 you she is fully compliant with the court’s order. In terms
15 of James Gottstein, if there’s going to be some discussion
16 about continuing an order, I guess I would ask your Honor that
17 if any further order is continued that there be some
18 opportunity to revisit the issue of findings that were made
19 without any adequate notice or opportunity to respond or
20 address those, including findings that Mr. Fahey has commented
21 about willful violations.
22 Mr. Gottstein has not had an opportunity to address
23 that, and the allegation that he willfully aided and abetted
24 the violation by Dr. Egilman in part seems premature when
25 there has been no finding that Dr. Egilman, who, to my
Burton H. Sulzer – OCR, CM, CRR
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1 knowledge, has not been deposed or been the subject of any
2 evidentiary hearing, that Dr. Egilman himself violated this
3 order.
4 I understand Lilly’s position that he did. I
5 understand Mr. Gottstein — Mr. Egilman — Dr. Egilman’s
6 position that he did not.
7 I understand the desire to maintain the status quo
8 and prevent further dissemination of the documents while these
9 issues are sorted out, but I would ask that there be some
10 opportunity to address, really for the first time in any
11 meaningful fashion, whether there was in fact a violation.
12 THE COURT: There will be full opportunity, should
13 it be necessary.
14 The reason I asked about James and Terri is that I’m
15 interested in who you represent, James Gottstein, or Terri
16 Gottstein, or both.
17 MR. McKAY: Your Honor, to date I have represented
18 James Gottstein, who is the attorney in the Alaska case that
19 we just discussed.
20 This hearing, as I understand it, was to discuss the
21 December 29th order of Judge Cogan that was to expire today.
22 James Gottstein is not a party, a respondent to that order.
23 The way it was framed, it was addressed to the recipients of
24 the document, to people who received documents from him.
25 In the course of responding fully to that
Burton H. Sulzer – OCR, CM, CRR
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1 injunction, one of the people that was disclosed as a
2 recipient of those documents was his wife.
3 She simply got a copy of a DVD. She never looked at
4 it. As soon as she was asked for it, she returned it, but
5 because she is a respondent, I have entered — I have appeared
6 on her behalf today. But I generally represent James
7 Gottstein.
8 THE COURT: All right. You will explain to your
9 clients the possible conflict, but I see no reason why you
10 should not be permitted today to appear on behalf of James
11 Gottstein and Terri Gottstein, and your appearance is noted on
12 behalf of both of them.
13 MR. McKAY: Thank you, your Honor.
14 THE COURT: Jerry Winchester. Not present.
15 Dr. Peter Breggin. Not present.
16 Dr. Grace Jackson. Not present.
17 Dr. David Cohen. Not present.
18 Bruce Whittington. Not present.
19 Dr. Stephen Kruszewski. Not present.
20 Laura Ziegler. Not present.
21 Judi Chamberlin.
22 MR. CHABASINSKI: Ted Chabasinski representing Miss
23 Chamberlin. I would like to point out to the court that I in
24 fact probably had more notice than anyone else of this
25 hearing, which is perhaps three-quarters of the day, and I
Burton H. Sulzer – OCR, CM, CRR
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1 come to this hearing in a state which I have never been in
2 before; that is, I’m not very prepared because this is very
3 short notice and I don’t think I’ve really received — right
4 now I know that there is a temporary injunction in effect,
5 which was obtained ex parte, as it’s supposed to be, and if
6 you extend that, I assume it has a — there is a date beyond
7 which it can’t be extended without more of a hearing, am I
8 correct?
9 THE COURT: Normally, if it’s considered a temporary
10 restraining order, it would be, as I recall, a ten-day limit.
11 Do you want a hearing on it?
12 MR. CHABASINSKI: I don’t want a hearing on this
13 restraining order because I don’t think that I can give any
14 good arguments today and, clearly, you have to make a decision
15 today because it expires on to its face today.
16 THE COURT: Excuse me. I am prepared to hear
17 argument why it should not be extended.
18 MR. CHABASINSKI: I don’t feel that I’m really
19 prepared to give a coherent argument, your Honor. I need to
20 have more time to prepare some arguments.
21 It has been brought to my attention that there is a
22 Rule 65 that might very well cover this situation, but I don’t
23 have access to a law library, it was closed yesterday, and in
24 order to — I don’t think, obviously, there is anything much
25 we can do about this TRO, but I think if you’re going to give
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1 them something — give the defendant something more than a
2 temporary injunction — there has to be more of a hearing than
3 there is today, which I appreciate to have any hearing at all
4 of course, you’re not required to. But I do ask —
5 THE COURT: Excuse me. I’m perfectly willing to set
6 a hearing date. I will extend it until that hearing date.
7 What date do you want?
8 MR. CHABASINSKI: A date as far in advance as
9 possible so I can prepare better arguments than I’m prepared
10 to do today.
11 I’d like to have to as much notice as possible so I
12 can be heard in a fashion where I’ll actually have something
13 relevant to say.
14 THE COURT: What date do you want?
15 MR. CHABASINSKI: What is the maximum date that the
16 TRO can be extended to?
17 THE COURT: It can be extended by consent
18 indefinitely.
19 MR. CHABASINSKI: It doesn’t have my consent to do
20 that.
21 THE COURT: Well then it will be extended for ten
22 days from the date it was issued.
23 MR. CHABASINSKI: That’s the 29th — that’s only the
24 8th.
25 I would not object to an extension beyond, I think
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1 it would be the 8th, would make it ten days, am I correct, or
2 the 7th —
3 THE COURT: Yes.
4 MR. CHABASINSKI: And I would prefer to have more
5 time, so I would not object to an extension perhaps to the
6 15th of January.
7 THE COURT: January 15th?
8 MR. CHABASINSKI: Yes.
9 THE COURT: That is a Monday. It’s a holiday. How
10 about the 16th?
11 MR. CHABASINSKI: Fine. The more notice the better,
12 your Honor.
13 THE COURT: All right. So you consent to an
14 extension of Judge Cogan’s order to January 16th at 2 o’clock
15 p.m. to take care of — I take it, you would prefer the
16 afternoon, 2:00 p.m. Eastern?
17 MR. CHABASINSKI: 2:00 p.m. would be an excellent
18 time for me.
19 THE COURT: 2:00 p.m. on January 16th. I will issue
20 an order — that’s subject to hearing from others, of course.
21 MR. CHABASINSKI: I assume that your aide will
22 provide us with a different number for us to call in I assume?
23 Or I’ll take care of that —
24 THE COURT: Yes. Miss Lowe will handle that. We
25 want your fax number, Mr. Chabasinski, what is it?
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1 MR. CHABASINSKI: My fax number? Unfortunately my
2 fax is out of order. I can provide that to your staff later.
3 You can fax me things at the MindFreedom office and I’ll be
4 able to retrieve them.
5 THE COURT: What is the fax number?
6 MR. CHABASINSKI: Wait a second. Perhaps I can find
7 it. I’m sorry, your Honor. I’m going to have to provide it
8 to your staff. I promise that I will do that.
9 THE COURT: Call Miss Lowe, please, at your earliest
10 convenience.
11 MR. CHABASINSKI: What would the number be for that
12 other aide you’re mentioning?
13 THE COURT: (718) 613-2523.
14 MR. CHABASINSKI: It’s the same. I will call them
15 just as quickly as I can after the hearing today.
16 THE COURT: All right.
17 Vera Sherav. Not present.
18 Robert Whittaker. Not present.
19 Will Hall? Not present.
20 All right, Lilly will provide an order extending
21 Judge Cogan’s order of December 29th, on consent, to
22 January 16th, at which time a hearing will be held at 2 p.m.
23 in-person in this court by anyone who wishes to appear, or by
24 telephone conferencing by whoever wishes to appear in that
25 way.
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1 Lilly will, upon receipt of the signed order, make
2 sure that all interested parties, including those who aren’t
3 present here today, are notified.
4 MR. FAHEY: Can I just ask for one clarification?
5 Two of the Websites that are associated with people that are
6 linked in this order, the MindFreedom.org —
7 MR. McKAY: Could you speak a little louder, please.
8 MR. FAHEY: WWW.MindFreedom.org and WWW.AHRP blog
9 spot dot-com are currently, as we speak, still providing,
10 despite the order on the 29th, still providing information,
11 links and such, to what they believe to be the documents, and
12 I would ask that at least until the parties can be heard on
13 January 16th that that information be removed.
14 MR. CHABASINSKI: I don’t think that’s true, your
15 Honor. MindFreedom does not have any way to disseminate this
16 document.
17 THE COURT: Then there is no objection to expanding
18 the order to that extent. Provide that and we’ll expand the
19 order and you’ll have to give notice to those organizations.
20 MR. FAHEY: Thank you, your Honor.
21 THE COURT: That takes care of the temporary
22 mandatory injunction issue, which will be extended until we
23 can have a hearing at the earliest possible date, which is
24 January 16th. I think that complies with Rule 65, no
25 objection having been heard.
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1 I also have here an order to show cause, which was
2 provided by Lilly, issued to Mr. Gottstein. Did
3 Mr. Gottstein’s attorney get a copy of this?
4 MR. McKAY: I did, your Honor. Mr. Fahey sent one
5 by e-mail at 8 o’clock time last night. I have reviewed it.
6 I would like to speak to it, if I might.
7 THE COURT: Yes, I would like to hear you. Although
8 I’ve signed the order, I have some reservations about it. It
9 calls, for example, for the appearance, as I read it, at a
10 deposition within five days in New York City. I don’t
11 understand that my authority under Rule 45 extends beyond 100
12 miles from New York.
13 MR. McKAY: I’m surprised that you signed the order.
14 I would appreciate it if there’s an opportunity to address
15 things without the assumption this order is in place.
16 THE COURT: The order is in place because an order
17 to show cause is merely a device for placing a motion before
18 the court at an early date. It’s not an order for you to
19 appear or to do anything.
20 MR. McKAY: I understand the difference, your Honor,
21 but I assumed there would be some opportunity to respond to
22 the request for an order to show cause.
23 THE COURT: Yes, I’m giving you an opportunity now.
24 I’m prepared to modify the order to show cause based upon our
25 discussion this morning.
Burton H. Sulzer – OCR, CM, CRR
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1 You may proceed.
2 MR. McKAY: Thank you. Your Honor, I do apologize
3 for being less familiar with the procedures in your court.
4 I had assumed when they sent you a letter stating
5 that they intended to seek an order to show cause that I would
6 have an opportunity to respond in writing with something more
7 than a couple of hours notice.
8 In fact, your Honor, what I was going to ask, before
9 I understood just now that you are taking this up now, is that
10 I have an opportunity to address this later in the month.
11 I realize this is a lengthy extension I’m
12 requesting. Mr. Gottstein is on a long scheduled family
13 vacation. He’s not in the state. He’s not available for me
14 to either meaningfully discuss this with him or, for that
15 matter, certainly to prepare for anything in terms of — even
16 if the deposition were to be held in Anchorage, it would still
17 take an opportunity to prepare, to go through documents,
18 addressing privilege questions and so on.
19 I think Lilly is aware that Mr. Gottstein is on
20 vacation, not in the state. Lilly has, in the Alaska case
21 that gave rise to this issue, Lilly has agreed that, as I
22 understand it, that further response from Mr. Gottstein will
23 not be required, until I believe, it’s February 2nd, which
24 would be about a week and a half or two weeks after
25 Mr. Gottstein returns to the state.
Burton H. Sulzer – OCR, CM, CRR
21
1 I would ask that the same opportunity be given here
2 to file a response to the order to show — the request for an
3 order to show cause, and we could address those specific
4 issues about where and when a deposition would be taken.
5 I believe that, under the circumstances, that I
6 understand Lilly’s desire to inquire of Mr. Gottstein on some
7 of these issues. Many of them are covered already by the
8 certificate of compliance that has been filed with this court.
9 Some of them are clearly overreaching, you know,
10 having him send his office computer to Philadelphia, having
11 him show up in New York for a deposition when they have
12 counsel in Anchorage and so on oh, but I would like a chance
13 to address those matters.
14 There is no emergency at this point, your Honor.
15 Mr. Gottstein has fully and diligently and in good faith
16 complied with both the orders of Judge Cogan, the letter
17 request of Lilly — he’s done so without waiting for orders to
18 be entered in many respects, so there is no need for any undue
19 haste or emergency treatment at this point, and I would to ask
20 that he be allowed to respond in this case at the same
21 timetable that Lilly is agreeing that he can respond in the
22 underlying Alaska case.
23 THE COURT: What date do you want?
24 MR. McKAY: I believe the — well, I would suggest
25 February 2nd, I believe that is the date. It gives us a week
Burton H. Sulzer – OCR, CM, CRR
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1 and a half or two weeks after he returns, and I’m able to sit
2 down and talk with him and go through documents and respond.
3 I believe that is the date that Lilly has agreed to
4 in the Alaska litigation. I would agree to the same date in
5 this case, and I’d be happy to work with Mr. Fahey in the
6 meantime if there is something we can do after he comes back
7 to address some of the questions that are raised by this so
8 that we can present to you only issues that might be in actual
9 dispute.
10 MR. FAHEY: This is Sean Fahey. We were told
11 Mr. Gottstein went on vacation. He was supposed to have gone
12 on vacation on September 22nd. Since then he has been sending
13 letters, he has been appearing in the press, he has been
14 quoted about this, and so our position is that if he has
15 enough time to be doing all those other things, this is a lot
16 different from the case up in Alaska, which has a different
17 time line.
18 There is an emergency reason for needing this
19 information. We will go to wherever Mr. Gottstein is on
20 vacation if that’s what he wants, but we need to have this
21 information. It’s going to be relevant to the hearing we have
22 on January 16th, and it’s relevant to the proceedings that we
23 have with Dr. Egilman, and it’s relevant to the proceedings we
24 have against him.
25 We need to find out the information about where this
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1 information has been disclosed, to whom it’s been disclosed,
2 and what knowledge he has about the efforts of the
3 organization that Psych Rights and he have been working in
4 concert with in connection with the dissemination of these
5 documents.
6 THE COURT: What date would you suggest?
7 MR. FAHEY: I would suggest that if we’re going to
8 have an argument on the order to show cause, we can have that
9 on January 5th with Mr. McKay.
10 It may take some time for Mr. Gottstein to peruse
11 the documents, but I don’t see any reason to go out into
12 February. I think the middle of January is more than
13 sufficient. He returns, as I understand it, you know, based
14 on his own description of his vacation, on January 15th. If
15 we have a deposition that following week, I think that is
16 appropriate.
17 MR. McKAY: I think we’re talking about the
18 difference in scheduling a deposition, as I understand it, of
19 one week between what Mr. Fahey is suggesting and what I have
20 suggested as time for us to respond.
21 I’d be happy to try and accommodate the concerns by
22 addressing some of these points, but the issue is not — we’d
23 have to address — as I said, I’m not suggesting that
24 Mr. Gottstein would oppose having his deposition taken, I
25 think that Lilly is entitled to do that. There is a question
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24
1 of whether it’s premature in light of the issue of
2 Dr. Egilman, but I think that really is a matter for them to
3 address.
4 If there are any questions about where — I take it
5 from Mr. Fahey’s remarks that he has no objection to doing it
6 in Anchorage.
7 MR. FAHEY: That is not true.
8 MR. McKAY: Apparently he’s willing to go to Hawaii
9 to do it but not Anchorage. They have local counsel up here
10 already. If he’s willing to travel to Hawaii, I assume he
11 could just as well travel to Anchorage, but I think that we
12 can take that up and see if we can come to some sort of
13 agreement on that.
14 Your Honor, I will need some time when Mr. Gottstein
15 returns to be able to go through documents with him and
16 formulate a response.
17 I appreciate Mr. Fahey’s remarks that even though
18 he’s on vacation he ought to, you know — if he chooses to
19 give any thought to this matter, which Lilly has been keeping
20 very active while he’s on vacation — that he should be
21 somehow held accountable and not allowed to conclude his
22 vacation.
23 I think in fairness, this is something that has been
24 planned for a year. If there is no emergency on this, if
25 there is a concern about the January 16th hearing, which I
Burton H. Sulzer – OCR, CM, CRR
25
1 assume there is not, since it was set a week after that, we
2 could agree to extend the TRO for another two weeks, so that
3 isn’t a problem.
4 There is nothing preventing them from taking
5 Dr. Egilman’s deposition, which would help establish whether
6 there is even a violation in the first place, and I would ask,
7 your Honor, that the deposition be scheduled no sooner than
8 the first week of February and that we would address in the
9 meantime, within the week after Mr. Gottstein returns, any
10 questions about documents.
11 THE COURT: For the convenience of the parties, I’m
12 going to amend the order to show cause, as requested, by
13 making it returnable on January 16, 2007 at 2 p.m.
14 MR. McKAY: January 16th, your Honor?
15 THE COURT: Correct.
16 MR. McKAY: That would be the date on which I would
17 file an opposition or response to the order to show cause?
18 THE COURT: Correct.
19 MR. McKAY: So you would expect in that filing to
20 hear our position on whether there should be a deposition,
21 where it should be, what documents should be provided so on?
22 THE COURT: That is correct. The request is that
23 the deposition take place within five days of the 16th, but
24 I’ll hear you on the 16th.
25 MR. McKAY: So I understand what you’re saying, that
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26
1 is the request, but there has been no determination made that
2 it would occur then?
3 THE COURT: That’s right.
4 MR. McKAY: I appreciate your Honor’s consideration
5 on this. I would ask that I be given more than a day.
6 I believe that Mr. Gottstein gets in sometime on the
7 15th — that is my understanding. Assuming that it’s at all
8 during the day, that would give us less than one day — if I
9 could even be given two days after he gets back to address
10 this with him, I would appreciate it. If you’re willing to
11 give me, say, until the 18th, I would appreciate that.
12 THE COURT: We’ll make it January 16th. The court
13 takes judicial notice of the full communication service
14 between the 49th and the 50th States admitted to the Union.
15 On the 16th you will be prepared to argue.
16 Now I’ve just accepted the order to show cause as
17 drafted, but I have not agreed that under Rule 45 of General
18 Practice the court has the power or the desire to bring
19 Mr. Gottstein into New York City for this purpose. I expect
20 the parties to brief it.
21 MR. FAHEY: I will.
22 THE COURT: He’s not a party to any action as it now
23 stands. I would suppose Rule 45 would apply.
24 MR. FAHEY: Judge Cogan found that he had
25 jurisdiction directly over Mr. Gottstein based on his aiding
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27
1 and abetting the breach of the protective order —
2 THE COURT: You better brief it on both sides.
3 There is a question of whether I can bring a nonparty into New
4 York City when he’s up in Alaska.
5 MR. McKAY: Your Honor, I will first attempt to
6 resolve —
7 THE COURT: Excuse me. Don’t interrupt me, please.
8 I haven’t finished.
9 MR. McKAY: I apologize, your Honor.
10 THE COURT: So there’s a problem of where the
11 deposition should take place. Then there’s the problem of
12 whether there is jurisdiction over him in-person, should you
13 want to proceed against him as a party.
14 That will have to be thoroughly briefed. I haven’t
15 had any briefs with respect to the nature of this whole
16 proceeding. It is a rather unusual proceeding.
17 I can give you my preliminary view so you understand
18 how I come to the case having read only the transcripts that
19 have been available to me and the written documents that are
20 available to all who are present here today.
21 There are some precedents and there is some
22 authority on violation of orders of this kind. The matter
23 gets very complex once the information is out. There is the
24 precedent of the Tobacco papers, which were widely available
25 after Congress released them. Congress returned the papers in
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1 the instant case, which was unusual, but, of course, they
2 could subpoena them at any time.
3 The order of Judge Cogan remains in effect against
4 all the named persons, and that includes Terri Gottstein and
5 it also includes James Gottstein.
6 I don’t think it’s necessary to expand it to the
7 expert, but if you want to, you may reframe this order to show
8 cause and expand it to the expert as well so there will be no
9 doubt about it.
10 The order will remain in effect against all of those
11 persons, the persons listed in the draft, plus the expert and
12 Mr. Gottstein, since they may be involved in future contempt
13 procedures. If so, the proceeding should be as simple as
14 possible, and I don’t want them engaged in further expanding
15 the number of people who receive the documents preventing
16 further dissemination by others except for the two that Lilly
17 mentioned.
18 MR. FAHEY: Actually three. The other was
19 WWW.PBWIKI.com, which is affiliated with those two.
20 MR. McKAY: I object to that. I have no idea who
21 these people are. He’s not affiliated with anyone that has
22 been mentioned in this case.
23 THE COURT: I’m not finding that they are
24 affiliated, but I will issue the order as to those three. I
25 do not wish to issue orders as to others besides those three
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29
1 and all I’ve listed in the draft order and the two people we
2 have added to that because it seems impracticable to do that.
3 The court takes no position on whether and how they
4 can be used by others who received them from other sources.
5 After all, the New York Times has disseminated them. This
6 court is not going to issue an order telling the New York
7 Times to return the documents.
8 So everybody has access to them. It takes no
9 position on whether and how they can be used by others who may
10 have them from other sources or from any sources, and on
11 whether and how Lilly can protect itself against such use.
12 But I don’t want to be put in a position, as representative of
13 the court, of issuing futile injunctions. So I’m going to
14 limit the order to those who I’ve mentioned.
15 Is that clear to everyone?
16 I make no findings of fact with respect to whether
17 any violation of any order of this court has ever been made.
18 I have heard no evidence on the point and I’m not prepared to
19 draw any inferences from any of the materials before me.
20 Is there anything further anybody wishes to be heard
21 on?
22 MR. FAHEY: Your Honor, there’s one point of
23 clarification. One of the Websites that had a link to the
24 documents was a member of MindFreedom, and the current
25 injunction would apply to that person. I just want to make
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1 sure —
2 THE COURT: List him personally and add him to the
3 list.
4 MR. FAHEY: Thank you, your Honor.
5 THE COURT: Does everybody understand where we are
6 now?
7 MR. CHABASINSKI: Not completely, your Honor, but
8 there are going to be minutes of this, I assume, and we’ll
9 receive them in a fax?
10 THE COURT: Yes. Lilly will order immediate copy of
11 the minutes and see that they are presented to all who have
12 appeared as well as all who are mentioned.
13 That is the three Websites and one person — the
14 person who is listed in your draft order to show cause — the
15 expert, and Mr. Gottstein.
16 Is that is clear to everyone now?
17 MR. McKAY: Yes, your Honor, this is John McKay.
18 May I ask whether Lilly is going to order or has ordered a
19 transcript of the last hearing before Judge Cogan?
20 THE COURT: Order a copy. See that is disseminated
21 as is this one. Yes, you’re entitled to that.
22 Is there anything else anybody wishes to present? I
23 hope to have the pleasure of having you before me on to
24 January 16th at 2:00 p.m..
25 We would like to have any documents, briefs, and
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1 other material as soon as possible since the problem is a
2 vexing one, and I would like to I would like to consider it
3 with the aid of all eminent counsel now before me.
4 If there is nothing further, the hearing is
5 adjourned and I wish you all a happy new year.
6 Lilly should make sure that the order that they
7 present today will indicate that the order that was signed at
8 10:00 a.m. this morning is withdrawn. Thank you everyone.
9 *********
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