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NYT Reporter Says Lawyer’s E-Mail Goof Not a Big Blunder

Posted Feb 11, 2008 1:31 PM CDT
By Debra Cassens Weiss

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New York Times reporter Alex Berenson says an e-mail that was sent to him in error by a lawyer from Pepper Hamilton was not a “really big blunder.”

The e-mail was intended for Berenson’s second cousin, Bradford Berenson, a lawyer at Sidley Austin. It was sent by a “high-powered” Pepper Hamilton lawyer, reporter Alex Berenson told On the Media.

The e-mail apparently referred to confidential settlement talks between Eli Lilly and the government regarding the company’s marketing of the anti-psychotic drug Zyprexa. Berenson made some additional calls and learned a possible $1 billion settlement was under discussion, as he detailed in a New York Times story.

The e-mail is cryptic, but Berenson was able to figure out its meaning. He said he was already aware of the confidential talks, but he didn’t “have the sourcing locked down.”

The e-mail read: “Tom and I were racing to other meetings when we left the EDPA and I am just back, looking for Tom so we can have a call. We'll call you as soon as I have him. Preview: They're in the stratosphere on number and Meehan wants a deal.”

EDPA meant the Eastern District of Pennsylvania and Meehan was Patrick Meehan, the U.S. attorney for the district overseeing the negotiations.

Berenson told ABAJournal.com in an e-mail exchange that he knew there had been settlement talks in the fall, but those were on hold, so he didn't have anything to write about. Plus, all his sources had been off-the-record.

"In its two lines, the e-mail indicated that the talks had been restarted. It was valuable to me both because it provided that information and because it wasn't protected by the off-the-record ground rules I had set up with my sources," Berenson wrote. "The email contained no details, and it probably would have been of marginal use at best to someone who didn't already know about the talks and have other sources."

Berenson said during the NPR On the Media segment that he ignored the confidentiality notice at the bottom of the e-mail, but he did agree in a conversation with the Pepper Hamilton lawyer that he would not disclose that he had received the misdirected message in the story. “I didn't see any need to shove Pepper Hamilton’s nose in it,” he said.

Portfolio.com was the first to disclose the mistake.

“And in the echo chamber of the retelling of the story, the e-mail wasn't just, you know, a quick slipup but a really big blunder,” Berenson said. “That’s not the truth, and that’s one of the reasons I think, you know, I'm talking to you today, because I do want to set the record straight.”

Updated 3:15 p.m. Tuesday to include more comments from Alex Berenson.

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