Cover stories in both yesterday's and today's New York Times criticize Eli Lilly's marketing of Zyprexa based on internal documents provided by a plaintiff's lawyer. The lawyer appears to have a clear conscience -- his name and photograph appear in Sunday's article, so no court would have any trouble tracking him down. Lilly, on the other hand, appears to be outraged. The documents were originally provided to plaintiffs' lawyers under seal, and Lilly insists that the release of the documents is "illegal." As to this particular release of documents, we (or at least the one of us typing these words) have no idea whether the documents were released lawfully or not. But it seems as though, in general, we've seen this film before.
Doesn't this happen in virtually all of the mass torts? Courts enter protective orders; defendants produce documents subject to the protective orders; documents are leaked to the press; night follows day.
What surprises us is how infrequently courts seem to care about this. Although documents are often leaked in violation of mass tort protective orders, courts rarely conduct full-scale investigations to find and punish the person who violated the court's order. Why not?
We'd like to see an academic (who might have the time to pursue this) research the mass tort cases (since about 1985 or so, when modern mass torts sprung into being) to determine the percentage of cases in which protective orders have been violated and the number of times courts have tracked down and punished the violator. If, as we suspect, protective orders are routinely ignored, but violators are rarely punished, that fact should influence how courts conduct future cases. If courts can't honestly tell defendants that protective orders will be enforced, what should follow from that? Should particularly sensitive documents not be produced at all? Should document depositories be protected more carefully? Are there other implications for future cases?
We understand that some lawyers who leak confidential documents may believe that they're serving the public good. But other leakers are unfairly trying their cases in the court of public opinion, with the aim of either pressuring a defendant to settle or poisoning the minds of potential jurors. If a lawyer wants to give documents to a newspaper to serve the public good, then the lawyer should do so lawfully. If documents should be unsealed, file a motion to unseal them. Don't simply leak them illegally to the press.
Again, we don't know anything at all about the propriety of the leak in the Zyprexa case. But we've seen and read about leaks in an awful lot of mass tort cases in the past. It's time for the judicial system to decide how it will respond in cases where leaks in fact violate court orders.