Documents Borne by Winds of Free Speech

A showdown is scheduled for a federal courtroom in Brooklyn tomorrow afternoon, where words like "First Amendment" and "freedom of speech" and "prior restraint" are likely to mix seamlessly with references to "BitTorrent" and "Wiki."

Lonni Sue Johnson

 

It is a messy plot that pits Eli Lilly, the pharmaceutical giant at the center of several articles in The New York Times suggesting that the company tried to hide or play down the health risks of its leading antipsychotic drug, Zyprexa, and lawyers representing various individuals, organizations and Web sites "” all arguing that their online speech has been gagged.

The case has attracted the attention of the Electronic Frontier Foundation, the venerable digital rights group based in San Francisco, and one of its lawyers, Fred von Lohmann, who is now representing an anonymous Internet user caught up in the legal fracas.

"One of the core missions of the foundation's 16-year history has been to establish that when you go online, you take with you all the same civil rights with you had with you in prior media," said Mr. von Lohmann. "But of course, you need to fight for that principle."

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The quick background:

It all began with Dr. David Egilman of Massachusetts, who was a consulting witness in ongoing litigation against Lilly. Dr. Egilman had in his possession a trove of internal Lilly documents "” not all of them flattering to the company "” sealed by the court as part of that litigation.

Comes James B. Gottstein, a lawyer from Alaska, who was pursuing unrelated litigation for mentally ill patients in his state. He somehow got wind (and precisely how is the subject of separate legal jujitsu) that Dr. Egilman had some interesting documents.

Mr. Gottstein sends Dr. Egilman a subpoena for copies. Hell begins breaking loose.

In a letter dated Dec. 6, Dr. Egilman informed Lilly's lawyers, as was required by the order sealing the documents, that he had been subpoenaed. Lilly's lawyers expressed their deep displeasure in a Dec. 14 letter to Mr. Gottstein, and politely told him to back off. In a response a day later, Mr. Gottstein informed them, among other things, that it was too late, and that some of the material had already been produced.

It seems Mr. Gottstein was also apparently in a sharing mood, which is how hundreds of pages ended up with a Times reporter, Alex Berenson "” and about a dozen or so other individuals and organizations.

This is also how copies of the documents ended up on various Web servers "” and when that happened, things changed. While surely painful for Lilly, the online proliferation began flirting with some bedrock principles of free speech and press, as well as some practical realities that looked a fair bit like toothpaste out of its tube.

Nonetheless, last month, United States District Judge Jack B. Weinstein ordered Mr. Gottstein to provide a list of recipients to whom he had distributed the contraband pages, and to collect each copy back.

The Times, which politely declined to oblige, has since been left out of the legal wrangling, but on Dec. 29, the court temporarily enjoined an expansive list "” 14 named individuals, two health advocacy groups (MindFreedom International and the Alliance for Human Research Protection), their Web sites, and a site devoted to the Zyprexa issue "” not just from "further disseminating these documents." They were specifically ordered to communicate the injunction to anyone else who had copies, and enjoined from "posting information to Web sites to facilitate dissemination of these documents."

That's right "” it appeared that even writing on their Web sites something like, "Hey, there's a site in Brazil where you can get those Zyprexa documents," would run afoul of the injunction.

The order was extended by Judge Weinstein on Jan. 4, and tomorrow the court will revisit the issue at length.

As Mr. von Lohmann and the Electronic Frontier Foundation see it, the injunction is simply untenable. Whatever the legal merits of Lilly's claims against Mr. Gottstein and Dr. Egilman for violating the seal, the court's power to stifle the ever-growing chain of unrelated individuals and Web sites who, after one or two degrees of remove, had nothing to do with the Lilly litigation, cannot extend to infinity. Very quickly, Mr. von Lohmann argues, you are dealing with ordinary citizens who are merely trading in and discussing documents of interest to public health.

"Judges have a natural inclination that if documents have been stolen under their watch, they want to get them back," said Mr. von Lohmann, whose John Doe client was a contributor to the site zyprexa.pbwiki.com "” a wiki where a hive of users compiled and contributed links and information relating to the Zyprexa case. "But there are some limits to how many degrees of separation the court can reach."

There is also a traditionally high bar set for placing prior restraint on the press "” which, whether Judge Weinstein recognizes it or not, very much includes a colony of citizen journalists feeding a wiki.

Of course, the other, slightly more absurd side to all this is that attempting to stop the documents from spreading is, by now, a Sisyphean task.

"The court is trying to get the genie back into the bottle until it can sort out what's going on through the course of litigation, which takes place at non-Internet speed," said Jonathan Zittrain, a professor of Internet governance and regulation at Oxford and a founder of the Berkman Center for Internet & Society at Harvard Law School.

"Perhaps the court thinks that whoever is adding to the wiki is among the parties to the original case," Professor Zittrain said. "That's understandable, but it puts the court in a no-win situation. It's left issuing an order that sounds like no one in the world is allowed to post the documents."

For its part, even The Times, which often posts original documents for its readers, tried to put the things online when Mr. Berenson wrote his first article, but the raw pages "” more than 350 individual image files weighing in at over 500 megabytes "” proved unwieldy.

George H. Freeman, vice president and general counsel for The Times, said, "The Times fulfilled its role by doing a lot of research and then highlighting and including the most important issues and documents in a series of well-placed news articles."

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For now, copies of the Lilly documents sit defiantly on servers in Sweden, and under a domain registered at Christmas Island, the Australian dot in the ocean 224 miles off the coast of Java. "Proudly served from outside the United States," the site declares. There are surely others.

On his TortsProf blog (snipurl.com/Torts), William G. Childs, an assistant professor at Western New England School of Law in Springfield, Mass., put it this way in a headline: "Judge Tries to Unring Bell Hanging Around Neck of Horse Already Out of Barn Being Carried on Ship That Has Sailed."