Goldberg v. Amgen, Inc.
123 F. Supp. 3d 9
D.D.C.2015Background
- Paul B. Goldberg, editor/publisher of The Cancer Letter, published a February 16, 2007 article reporting early termination of the DAHANCA 10 trial of Amgen’s drug Aranesp and quoting several physicians and unnamed Wall Street sources.
- Amgen, defending a securities-class action alleging investors lost money after Goldberg’s article (a purported corrective disclosure), subpoenaed Goldberg to depose him about how and when he learned of the study and his contacts.
- Amgen stated it sought only non‑confidential, author-level information (timing, who he spoke to, basis for quotes), not identities of confidential sources.
- Goldberg moved to quash under the qualified reporter’s privilege; the court applied the lesser burden for non‑confidential information but considered the Zerilli factors (need and exhaustion of alternatives).
- The court found Amgen’s information about Wall Street analysts and physicians was relevant to its truth‑on‑the‑market and loss‑causation defenses but concluded Amgen had not reasonably exhausted alternative sources (e.g., depositions of ~25 analysts, subpoenas/depositions of the doctors, Hague efforts for foreign doctor).
- The court granted the motion to quash and denied Goldberg’s request for attorney’s fees under Rule 45(d)(1), finding Amgen did not act in bad faith and made some, though insufficient, alternative efforts.
Issues
| Issue | Goldberg's Argument | Amgen's Argument | Held |
|---|---|---|---|
| Whether reporter's privilege covers non‑confidential, author-level information | Privilege covers both confidential and nonconfidential work product of journalists | Nonconfidential information is not protected and is easier to obtain | Privilege applies to nonconfidential information, but lower standard to overcome it is used |
| Whether Goldberg must testify about Wall Street sources who told him of the study pre‑publication | Testimony is protected and Amgen failed to exhaust alternatives to identify those analysts | Testimony is critical to loss‑causation and truth‑on‑the‑market defenses; Goldberg is uniquely positioned to identify timing and contacts | Testimony would be important, but Amgen failed to show sufficient diligence in pursuing analyst discovery; privilege not abrogated |
| Whether Goldberg must verify quoted physicians’ pre‑publication knowledge | Reporter need not be compelled when party could (and did not) seek testimony directly from the quoted doctors | Verification is necessary to show the study was known before the Article | Court refused compulsion because Amgen did not pursue the doctors as alternative sources; physicians’ knowledge alone insufficient to show market awareness |
| Whether Amgen must pay Goldberg’s attorney fees under Rule 45(d)(1) | Fees warranted because Amgen subpoenaed Goldberg before exhausting alternatives | No sanctions: subpoenaing party made reasonable, though inadequate, efforts and acted in good faith | Fees denied; no bad faith or improper purpose shown, and failure to overcome privilege alone is not sanctionable |
Key Cases Cited
- Carey v. Hume, 492 F.2d 631 (D.C. Cir.) (recognizes qualified reporter's privilege in civil cases)
- Zerilli v. Smith, 656 F.2d 705 (D.C. Cir.) (sets balancing test: need for information and exhaustion of alternatives)
- Lee v. Dep’t of Justice, 413 F.3d 53 (D.C. Cir.) (exhaustion requires reasonable efforts when a defined set of alternative sources exists)
- In re Slack, 768 F. Supp. 2d 189 (D.D.C.) (privilege covers nonconfidential materials; less demanding showing to abrogate)
- Mount Hope Church v. Bash Back!, 705 F.3d 418 (9th Cir.) (Rule 45 sanctions not warranted where subpoenaing party reasonably relied on its view of privilege law)