Civil disobedience and public health

Over at FindLaw, Julie Hilden details the process by which a New York Times reporter defied a court order to ferret out health problems linked to the widely used anti-psychotic drug Zyprexa. Zyprexa, produced by Eli Lilly and Co., has been linked to serious weight gain and diabetes among patients who take the drug to control ailments including schizophrenia and bipolar disorder -- a fact the public might not have learned had reporter Alex Berenson stayed on the "right' side of the law.

As befits an officer of the court, Hilden, more in sorrow than in anger, criticizes reporter Alex Berenson and his allies for their tactics in evading the court order -- after she takes Judge Jack Weinstein to task for issuing the order to begin with. Her position is that Berenson should have gone through official channels to obtain the documents instead of setting up a clever ruse to bypass the court.

Well, official channels and a buck will get you a cup of coffee.

It's the information about the ruse, though, that's so interesting.

Here's how the ruse worked: Berenson - with the help of one of the experts in the case, who was bound by the protective order -- convinced an Alaskan attorney to subpoena the documents by intervening in a separate case. (In a civil case, attorneys can typically serve subpoenas themselves, without court approval; if the recipient believes the subpoena is improper, she can legally fight it in court, and not comply until she gets a ruling.) Since the protective order contained an exception for the production of information sought pursuant to a valid subpoena, the documents were produced.

Not only did the ruse participants hide their real identities with the subpoena gambit, using the Alaska attorney as a "beard," they also "gamed" Lilly regarding the timing of the matter - so that Lilly believed it had more time to challenge the documents' production, than it actually did. Ultimately, the documents ended up all over the Times, then all over the Web.

It's a peek inside the complicated and sometimes fascinating world of court procedures -- and the even more fascinating ways those procedures can be gamed by people who know what they're doing.

Just as important, the story is an important lesson, pace Hilden, in why it's important to not take official decrees too seriously. If Berenson had sought these documents the "proper" way, they may, eventually, have been revealed in whole or in part. On the other hand, a little creative guerrilla action definitely brought to light in a timely manner all of the relevant information about important health issues involving a popular drug.

Is defiance of court orders always justified? No -- no more so than is obedience. But a little well-exercised judgment is preferable to blind allegiance to "proper" procedures.