Law Firms
Did Lawyer’s E-Mail Goof Land $1B Settlement on NYT’s Front Page?
Posted Feb 6, 2008 5:55 AM CST
By Debra Cassens Weiss
Updated: An outside lawyer for Eli Lilly & Co. apparently has two people named “Berenson” in her e-mail address book. One is a reporter for the New York Times and the other is her co-counsel assisting in confidential negotiations on a possible $1 billion settlement between the pharmaceutical company and the government.
The question is whether her e-mail to the wrong Berenson spurred last week’s front-page New York Times story revealing talks to resolve criminal and civil investigations into the company’s marketing of the anti-psychotic drug Zyprexa, as Portfolio.com reports.
The unidentified lawyer who wrote the e-mail works at Pepper Hamilton in Philadelphia, the story says. She was trying to e-mail Bradford Berenson of Sidley Austin rather than Times reporter Alex Berenson.
The Drug and Device Law blog contacted Berenson, the reporter, who said he did receive an e-mail, but it did not contain a detailed description of the status of the settlement talks. Berenson told the blog he got his information from other sources.
Berenson said in a later interview with WNYC Radio that the e-mail, sent by a "high-powered" Pepper Hamilton lawyer, was not a "really big blunder." The e-mail mentioned the name of the U.S. attorney overseeing settlement talks, but didn't refer to Eli Lilly, its case or settlement numbers. It read in part: "They're in the stratosphere on number and Meehan wants a deal.”
Eli Lilly had initially believed that federal officials leaked the information. “As the company's lawyers began turning over rocks closer to home, however, they discovered what could be called A Nightmare on E-mail Street,” the Portfolio story says.
A Lilly spokeswoman told Portfiolio.com that the company will continue to retain Pepper Hamilton. A search for the words "Eli Lilly" on the firm's Web site shows that two of the firm's lawyers are scheduled to speak on the subject of "Resolving Ethical Concerns and Preserving Attorney-Client Privilege When Faced With Fraud and Abuse Charges” at an April conference.
Updated at 2:55 p.m. to include information from the Drug and Device Law blog that the New York Times reporter got his information from sources other than the e-mail. Language in the post was also changed to correct the impression that the e-mail was the source of the Times story. Updated on 2-11-2008 at 12:40 p.m. to include Berenson's claim from a later interview that the e-mail mistake was not a big blunder.
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Comments
George Lenard
Feb 6, 2008 11:34 AM CST
Shame on the Times! Surely they knew it was a mistake and intended to be a lawyer-client confidential email. That is NOT news to report, front page or elsewhere.
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Barbara Kinzel
Feb 6, 2008 1:33 PM CST
The least The New York Times should have done was to call the attorney, give her notice of what she had done, an opportunity to comment, and time to get an injunction against the story running. Although it is the best newspaper in the world and the only one millions still choose to read in this day of bits and bytes, I really am quite ashamed of how the reporter and editors acted in this matter.
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Kenneth DucDuong
Feb 6, 2008 1:45 PM CST
Apparently NY Times has put its own financial interests in running the story—front-page, knowing that it was not the intended recipient.
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Thomas Westgard
Feb 6, 2008 2:02 PM CST
Why all the sympathy for the lawyer? It’s not like this is the first time an email went to an unintended recipient. There are a thousand ways to make email more secure, and this firm chose short-term economic efficiency over all of the security options. The law firm chose to put their clients’ secrets into an insecure communications system, and this is the price of “efficiency.” If law firms or their clients want a different level of privacy, they can choose to pay for it. The NYT is only the messenger here - don’t shoot the messenger.
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Douglas Laird
Feb 6, 2008 3:16 PM CST
Just as recent ABA ethics opinions put the onus on lawyers mistakenly sending metadata to an opponent, so should the “blame” for this disclosure be focused on the negligent e-mail sender. The newspaper revealed negotiations with a government entity in a matter with obvious important public impact. This was no strictly private affair revealed for non-public reasons. We can’t cry foul when the paper publishes information about a public issue that was obtained without the reporter breaking any law. The lesson here is that lawyering is all about details and the constant attention to them. But I am sure we all see this event and can’t help but think “but for the grace of God go I . . .”
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rick kuykendall
Feb 7, 2008 7:43 AM CST
What sort of “jornalist” does this? Doesn’t call the source? Even hit the “respond” button and make an inquiry? Ignores the caveats that all lawyers email carry about “intendented use,privacy and atty/client privileges”? Makes up-the “source”-clear evidence that the reporter knew he/she was doing something wrong? Not the kind I have always trusted worked for the NYTs.the real question is w/n this was vetted with the Times Counsel who would have known the consequences and impact of such an error. If it wasn’t thenm the Times needs to revise its internal policies and if it was and was cleared then the lawyers should be held accountable. They knew or should of known the possible/probable consequences of this on the lawyers,their firm but more important the clients. The NYT- my favorite newspaper needs to take a hard look at this and use some common sense. Rule one- check the source and verify the story.
For goodness sakes the paper makes daily corrections on dates- names and prices of products. They should correct this by making certain it doesn’t happen again.
As a litigator. I know what its like to try and meet the non-ending demands of modern real time practice. Emails fly from trains-planes and cabs and I suppose we should all learn from this. But mistakes happen and its not keeping with the finest traditions of good journalism or the Times to take obvious advantage.
Rick Kuykendall
Trial lawyer
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Richard Head
Feb 8, 2008 5:49 AM CST
It seems to me BOTH parties are at fault. The dopey lawyer for sendng the e-mail, and the NY Times, if it used this information without first getting clearance for doing so. Shame, shame, shame, shame on both of you! I read the article and wondered how Eli Lilly could do such dumb things.
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John Graubard
Feb 8, 2008 6:24 AM CST
Back in the “stone age,” a secretary at a law firm was told to fax a copy of the proposed merger agreement (secret) to tax counsel for their review. The fax machine had speed dial buttons, and the secretary sent the merger papers to—- The Wall Street Journal. The Journal ran the story under the headline “Honestly, We Don’t Get Most of Our Stories This Way.”
If an attorney go the missent e-mail, of course he or she should have notified the sender, and deleted it. But what if it contained information concerning, for example, ongoing government corruption at the highest level?
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Robert Scott
Feb 8, 2008 7:37 AM CST
The reporter, Alex Berenson, is the same NYT reporter that Judge Jack Weinstein found (along with plaintiffs’ expert David Egilman and a lawyer from Alaska) “conspired to obtain and publish documents in knowing
violation of a court order not to do so” and “executed the conspiracy using other people as their agents in crime.” (See Judge Weinstein’s February 13, 2007 Memorandum, Final Judgment, Order and Injunction in Zyprexa Litigation, et al, Cause No. 07-CV-0504 (MDL No. 1596) in USDC EDNY.
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Boston Yankee
Feb 8, 2008 7:51 AM CST
Yeah, why shoot the messanger? The New York Times is just another big business out to make a buck. Why should they be concerned practicing the ethics they so often preach?
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NY Post Reader
Feb 8, 2008 8:13 AM CST
I do blame both of them: the lawyer for keeping company with a writer for the NY Times and the NY Times for continuing their shameless gutter tactics.
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WV Lady
Feb 8, 2008 8:26 AM CST
Not the first time this has happened, nor will it be the last. A decade ago my then-employer - a major DoD contractor - four weeks prior to a planned massive layoff a secretary emailed the draft dismissal letter along with the list of everyone on the chopping block to everyone in the global address list. She was supposed to only send it to another secretary (first name Gloria), and the entries for GLObal Address List and GLOria were next to each other in her address book. Oopsie!
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pgb
Feb 8, 2008 8:34 AM CST
The tenor of these comments indicate that some in the legal profession think that we are immune from public scrutiny because we want to be - Is anything the Times published inaccurate? Was there was any breach of journalism ethics? It’s hard to imagine The Times rejecting this story because it didn’t come in the form of a press release.
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Marc
Feb 8, 2008 8:51 AM CST
This is a problem with Outlook’s autofill function. This is not the first time something like this has happened. I have gotten several emails that were not intended for me but the writer did not pay attention to what Outlook was doing.
Remember, it’s not a bug, it’s a feature.
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Cathy
Feb 8, 2008 9:13 AM CST
Is anyone else curious why the attorney had the NYT’s reporter’s contact information in her Outlook? I certainly don’t have any reporters’ information stored in my Outlook.
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Bryan
Feb 8, 2008 9:58 AM CST
I’m sorry for the attorney who did this, but we praised the NYTimes for running classified info because it was deemed newsworthy. How is this different?
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Careful
Feb 8, 2008 10:45 AM CST
Outlook’s autofill can be a real hazard. I never fill in the send or cc names until my email message is in final form, and then I double check what gets filled in by Outlook when I type the recipient names. Two extra seconds of scrutiny before hitting “send” is well worth it.
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Bill
Feb 8, 2008 11:20 AM CST
Say what you will about the Times or the attorney, but I’m in the middle of Berenson’s “The Faithful Spy” and it is not a half bad read for that genre.
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eb
Feb 8, 2008 11:59 AM CST
Heaven forbid someone holds an attorney accountable! I would think that the $100k biglaw bonuses accompany some sense of accountability.
Seriously, as this website details ad nauseam, lawyers are paid quite handsomely to use the utmost care in handling matters for our clients. As much as I sympathize with the attorney here, the legal profession is ultimately about responsibility, folks. The newspaper profession is about news. Who’s not doing their job here?
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Marc W.
Feb 8, 2008 12:24 PM CST
Shame on the prior commenters . There are no facts regarding the content of the e-mail; and the only statement at this point is from the reporter that his source of information was elsewhere. However, everyone is being very quick to convict all the players involved.
Marc
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Giggling after reading The Snark
Feb 8, 2008 1:12 PM CST
Sounds like a parallel to the “fruit of the poisonous tree” cases. The reporter used the info in the unintended email to dig up what was really going on—the email was just a clue, not the substance of the article, unlike the merger agreement accidentally faxed to the WSJ (see blog #8).
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Troy D
Feb 8, 2008 3:15 PM CST
This is perfect example (lesson) for many in the legal field to learn from. Just putting Client-Attorney or Work Priviledge on an email (that by the very nature of how it functions is NOT SECURE over the Internet) is not performing the minimum due care established in countless decisions (e.g. Learned Hand). Claiming priviledge on an uncrypted email, is just as ludicrious as a Judge telling a Jury to ignore a comment/testimony they have already heard in a case…..basically trying to close the barn door after the horses ran away.
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R
Feb 8, 2008 8:52 PM CST
You can’t unring the bell. Even if reporter Berenson studiously avoided relying on the email, he now knew what Eli Lilly was planning and could use that information to ask leading questions of other sources.
PS: Did the email even include the usual “CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION” verbiage? Be sure to use Outlook to create a special “signature” for use on any email that fairly deserves such a label.
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Ken Marcus
Feb 9, 2008 8:39 PM CST
What obligation does the Times have to defer to the ‘confidentiality’ plea, even if it was part of the email message. Those blurbs (often in unreadable capital letters) are simply requests - I don’t know of any legal obligation to honor them. It seems to me that if a story falls into the lap of the newspaper then, absent some other consideration, they have every right to tell us about it if it’s newsworthy.
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davagain
Feb 10, 2008 2:11 AM CST
why should a deal with the government of that size be kept secret in the first place?
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Dan Berger
Feb 11, 2008 3:08 AM CST
The scorn in some posts for the reporter who would have the nerve to report the news is remarkable. The link below gives the details of what actually transpired. When the unidentified partner at Pepper who carelessly sent the e-mail got a heads-up that the reporter was asking informed questions of the US Attorney’s office, she asked him to kill the story. When he naturally declined to do so, the lawyer asked that the e-mail at least not be cited. The reporter agreed to this request so as not to needlessly embarrass her or the firm as he was not relying solely on the e-mail. So not only was the partner at Pepper careless, it appears she was also trying to cover up her carelessness. He went out of his way to do her this favor and as result the lawyer’s name is not attached to this story.
If a reporter negligently left a document in a lawyer’s office that was of value to the lawyer’s client, such as identifying a confidential source, the lawyer would have a duty to disclose the information to the client. So why should anyone question the reporter for doing his job rather than honoring unilateral boilerplate directing him to stick his head in the sand?
http://www.onthemedia.org/transcripts/2008/02/08/04
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Reed Richards
Feb 11, 2008 9:10 AM CST
Berenson the reporter says he did not rely on the email but obtained his information from other sources. As Berenson has blown the cover off of numerous stories relating to Lilly in the past, including Lilly’s off-label marketing practices and several other settlement deals in product liability matters, those sources are likely the source of his information here (and not a one-off email goof). In any event, Berenson is not a lawyer and does not have duties to the profession. He is a journalist and has a duty to the public to report the news, wherever he may find it. He is not obliged to give the persons he reports on an opportunity to silence him through legal maneuvering, nor should any such obligation (ethical or otherwise) be placed upon him.
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