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                    UNITED STATES DISTRICT COURT
                               EASTERN DISTRICT OF NEW YORK

          3   – – – – – – – – – – – – –   X

          4   In re: ZYPREXA PRODUCTS
          5   – – – – – – – – – – – – –   X
                                                 MDL No. 1596
                                                 United States Courthouse
          7                                      Brooklyn, New York

          8                                      January 3, 2007
                                                 11:00 o’clock a.m.


         11                       TRANSCRIPT OF PROCEEDINGS
                             BEFORE THE HONORABLE JACK B. WEINSTEIN
         12                      UNITED STATES DISTRICT JUDGE


         15   For the Plaintiff:              LANIER LAW FIRM
                                              BY:  RICHARD D. MEADOW, ESQ.
         16                                        EVAN M. JANUSH, ESQ.


         18   For the Eli Lilly:              PEPPER HAMILTON LLP
                                              BY:  SEAN P. FAHEY, ESQ.

         20   Court Reporter:                 Burton H. Sulzer
                                              225 Cadman Plaza East
         21                                   Brooklyn, New York
                                              (718) 613-2481
              Proceedings recorded by mechanical stenography, transcript
         23   hproduced by computer-aided transcription.



                                    BHS OCR CM CSR CRR


          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


          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

                           Burton H. Sulzer – OCR, CM, CRR


          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


          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.

                           Burton H. Sulzer – OCR, CM, CRR


          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 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


          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


          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


          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


          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


          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


          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


          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


          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

                           Burton H. Sulzer – OCR, CM, CRR


          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

                           Burton H. Sulzer – OCR, CM, CRR


          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?

                           Burton H. Sulzer – OCR, CM, CRR


          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.

                           Burton H. Sulzer – OCR, CM, CRR


          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 —

          7             MR. McKAY:  Could you speak a little louder, please.

          8             MR. FAHEY: 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.

                           Burton H. Sulzer – OCR, CM, CRR


          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


          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


          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


          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

                           Burton H. Sulzer – OCR, CM, CRR


          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

                           Burton H. Sulzer – OCR, CM, CRR


          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


          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

                           Burton H. Sulzer – OCR, CM, CRR


          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

                           Burton H. Sulzer – OCR, CM, CRR


          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

                           Burton H. Sulzer – OCR, CM, CRR


          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, 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

                           Burton H. Sulzer – OCR, CM, CRR


          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                  *********

















                           Burton H. Sulzer – OCR, CM, CRR

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