The present appeal arises from the flouting of a protective order entered in high-stakes litigation concerning Eli Lilly Co.’s anti-psychotic drug, Zyprexa. David S. Egilman, a plaintiffs expert witness and signatory to the protective order, received confidential documents produced by Eli Lilly. Finding much to dislike in the content of those documents, Egilman wished to distribute them to the media. Not wanting to release the documents to the public in a manner brazenly in disregard of the protective order, he needed a suitably minded individual to act as his partner and to subpoena those documents. Egilman contacted New York Times reporter Alex Berenson, who put him in touch with Alaska attorney and mental-health advocate James B. Gottstein, who readily agreed to help. Gottstein, who was not a signatory to the protective order, intervened in an unrelated Alaskan guardianship case, which he used to generate subpoenas purporting to require Egilman to produce all documents in his possession pertaining to Zyprexa. Failing to abide by the terms of the protective order, Egilman distributed a large volume of documents to Gottstein, who in turn copied and forwarded them to a variety of other interested parties. The next day, the Times began a series of front-page articles based on the information contained in those documents.
Understandably alarmed, Eli Lilly applied for and received a series of orders culminating in an injunction, which barred Gottstein from disseminating the documents and required their return.
In re Zyprexa Injunction,
BACKGROUND
Approximately twenty-million schizophrenia patients have taken the anti-psychotic drug Zyprexa, which some allege has produced negative side effects purportedly known to, but not disclosed by, the drug’s manufacturer, Eli Lilly Co. Some 30,000 lawsuits ensued, whiсh were consolidated pursuant to 28 U.S.C. § 1407 and assigned to the Honorable Jack B. Weinstein of the United States District Court for the Eastern District of New York.
In re Zyprexa Prods. Liab. Litig.,
At some point during the litigation, one of the plaintiffs’ firms, The Lanier Law Firm, retained Dr. David Egilman as a potential expert witness. Having first attempted to modify it, Egilman signed the Endorsement of Protective Order. 1 The firm sent myriad documents produced by Eli Lilly to Egilman so that he cоuld begin preparing his expert testimony. Egilman ultimately received some half-a-million documents and became quite determined to share their contents with the media. He contacted New York Times reporter Alex Berenson and explained his interest. Egilman understood that he was subject to CMO-3, however, and thus required an accomplice to subpoena the documents. Berenson put Egilman in touch with James B. Gottstein for that very purpose.
Gottstein is an Alaskan attorney and an advocate for patients’ rights. After talking to Egilman about Eli Lilly’s confidential documеnts and their mutual desire to see those materials disseminated to the public, Gottstein intervened in an unrelated case in which the Alaskan Office of Public Advocacy had been granted guardianship and the right to make treatment decisions for a patient, William Bigley. At that time, Gottstein had no idea if the patient had taken Zyprexa or if the state would use Zyprexa in its treatment of the patient. Yet within hours of intervening, he issued a subpoena that purported to compel Egilman to produce all documents in his possession relating to that partiсular drug. Despite being addressed to Egilman in Massachusetts, however, the subpoena issued from the Superior Court for the State of Alaska. Gottstein placed the request for documents pertaining to Zyprexa in the middle of requests for documents relating to 14 other drugs, none of which he expected Egilman to possess. The subpoena, issued on December 6, 2006, called for production of the material by December 20.
In an effort to comply, however perfunctorily, with CMO-3, Egilman faxed a note and copy of the subpoena to Eli Lilly’s corpоrate general counsel. He did not, however, inform the firm that retained him of the subpoena; nor did he apprise Eli Lilly’s litigation counsel. Nevertheless, the fax was routed internally and, on December 13, the Lanier Law Firm told Egilman not to produce any documents until Eli Lilly’s planned motion to quash the subpoena had been ruled upon in the Alaskan court. Unbeknownst to Lanier and Eli Lilly, however, Egilman had already begun to distribute a plethora of documents to Gottstein the day before.
This clandestine production of Eli Lilly’s documents resulted from Gottstein’s having served an amended subpoena on December 11, which called for the production of the documents prior to the date and time set for the deposition. This subpoe
Realizing the magnitude of the information breach, Eli Lilly took the matter to the Special Master for Discovery, Peter H. Woodin, who ordered Gottstein and Egilman to return all material immediately. Gottstein refused to acknowledge the Special Master’s authority over him, so Eli Lilly took the matter up with Magistrate Judge Roanne L. Mann, who determined that Gottstein had aided and abetted a breach of CMO-3. Eli Lilly then took the matter to District Judge Brian M. Cogan, who was sitting as a miscellaneous-duty judge and who issued a temporary injunction. The MDL court extended Judge Cogan’s injunction pending a full hearing on thе matter, which it conducted on January 16 and 17, 2007. The MDL court issued an injunction on February 13, from which Gottstein now appeals.
DISCUSSION
1. The district court did not abuse its discretion when it characterized the Alaskan subpoenas as a “sham” and found that Gottstein aided and abetted Egiiman’s violation of the protective order
Gottstein challenges the district court’s factual determination that the subpoenas he caused to be served on Egilman were a “pretense.” He also contests the district court’s closely related finding that he aided and abetted the viоlation of CMO-3.
2
We review such factual conclusions for abuse of discretion, “which may be found where the Court, in issuing the injunction, relied on clearly erroneous findings of fact or an error of law.”
Knox v. Salinas,
The district court’s finding that Gottstein conspired with Egilman to violate CMO-3 is amply supported by the record. Egilman called Gottstein on November 28, 2006, explaining that he possessed secret Zyprexa documents produced through litigation and that they “contained some alarming things in them.” He informed Gottstein that the documents were under a protective order. 3 Understanding that Egilman would not produce the Zyprexa documents except pursuant to a subpoena, Gottstein needed to find an appropriate case as a vehicle with which to generate one. Gottstein obtained Egiiman’s contact information for the subpoena, as well as the latter’s email and phone number. Egilman knew that Gottstein intended to distribute the Zyprexa dоcuments when he obtained them.
Further evidence of the subpoena’s being a sham abounds, and this similarly evidences the fact of concert between Egilman and Gottstein. When introduced to Egilman through Berenson, Gottstein wasted no time in planning an end run around the protective order. He searched for, found and then intervened in a case of state guardianship that was wholly unrelated the Zyprexа litigation. Gottstein admitted that he had no evidence at the time of causing the subpoenas to be served on Egilman that Zyprexa was relevant to the case in which he had intervened. On receipt of the material, Gottstein quickly disseminated it to a list of recipients without even reviewing it or applying it to his Alaskan patient’s case. It bears noting, too, that the subpoenas duces tecum issued through the Alaskan state court were presumably without legal force in Massachusetts, where Egilman resided and was served. 4 This further supports the district court’s determination that thе subpoenas were a sham.
In sum, the record is unequivocal that Gottstein schemed with Egilman to bypass the protective order and, in fact, aided and abetted the latter’s violation of the same. It is equally clear that the subpoenas issued to Egilman were part of a sham proceeding. The district court did not err, let alone clearly err, in so finding.
Gottstein asserts that his “dual purposes” were “to obtain evidence for use in Bigley’s case and other future cases, and [to] make evidence of suppressed hazards or illegal marketing or other evidence of Zyprexa hazards and Lilly [sic] misconduct known to the public.” However, the qualitative nature of a “purpose” cannot be divorced from the mаnner in which it is pursued. Even if we were to assume that either of his proffered goals in subpoenaing Egilman were otherwise legitimate, the fact of his aiding and abetting the violation of a lawful protective order to achieve that end precludes our finding a proper purpose. Gottstein appears to focus on the discrete act of his causing the two subpoenas to issue, essentially asking that we consider those actions divorced from the larger context of which they were a part. Yet we have already determined that the district court was on firm ground in finding that Gottstein’s actions—including his serving Egilman with the two subpoenas— aided and abetted Egilman’s violation of the protective order. Causing a subpoena to be served, with notice that compliance with it by the complicit recipient would violate a court’s lawful order, cannot be characterized as “legitimate,” even if the improperly obtained documents might otherwise be useful had they been obtained appropriately. Ultimately, Gottstein’s nebulous assertion that the subpoenas were somehow “grounded in law and fact” does not legitimize the manner in which they were employed to facilitate the violation of a court’s order; nor does it take away from their being part of a sham proceeding.
Gottstein’s second argument is no more fruitful. He submits that he acted independently as a lawyer in the interests of his client, which, he contends, precludes any finding that he aided and abetted Egilman’s violation of the protective order. To support this conclusion, Gottstein focuses on
Regal Knitwear Co. v. NLRB,
Ultimately, the district court’s finding that Gottstein acted in concert with Egilman to release the confidential material, and related determination that Gottstein aided and abetted Egilman’s violation of CMO-3, seem to us the only reasonable conclusions in light of the facts in the record. The district court certainly did not abuse its discretion in so finding.
II. Gottstein’s challenges to the protective order fail
Gottstein challenges the protective order on a number of grounds, all of which fail. He asserts first that the “district court erred by assuming ‘inherent authority’ to use its power to enforce injunctions under Rule 65(d) to enforce a protective order under Rule 26(c) instead.” We reject this argument by virtue of the obvious fact that the district court did not enforce CMO-3 against Gottstein—an order to which Gottstein was not privy. Gottstein seems to miss the fact that the injunction against which he appeals merely “enjoined him from further disseminating” the “documents produced by Eli Lilly and Company subject to CMO-3” and required him “forthwith [to] return any such documents and copies still in his ... possession....”
In re Zyprexa Injunction,
Gottstein next argues that the substantive provisions of the protective order were insufficiently detailed, since they did not delineate the acts sought to be restrained and failed “to provide nonparties with a specific and detailed description of the acts required or prohibited.” These contentions are unavailing. First, it is unclear why a protective order would seek to dictate the boundaries of рermissible behavior by non-signatories. Such individuals can only be enjoined when their actions amount to aiding and abetting a violation of the order by a person who is privy to it. In that sense, Gottstein’s objection to the order’s supposed lack of specificity as to appropriate third-party conduct collapses into his argument that the order’s existing provisions are impermissibly vague. He argues on this latter ground that the order’s requirement that parties be given a “reasonable opportunity” to object before any disclosure is effected is “too vague to be enforced.” Gottstein’s contention is border-line disingenuous, however, in light of his election not to read the protective order before aiding and abetting its violation. In any event, the challenged phrasing, familiar from other contexts,
see, e.g.,
Fed.R.Civ.P. 12(d); Fed.R.Crim.P. 5(d)(2), 6(e)(3)(G), 32.1(c)(2)(C), hardly constitutes abuse of what the district court accurately described as its “broad discretion to tailor protective orders to the circumstances of a particular litigation.”
In re Zyprexa Injunction,
III. Gottstein submitted himself to the personal jurisdiction of the Eastern District of New York when hе aided and abetted a violation of the court’s order
Gottstein makes a further argument. He contends that the district court
It is of course true that courts cannot enjoin the entire universe of potential violators of its orders. In
Regal Knitwear,
the Supreme Court held that those who are acting independently of the enjoined party and whose own rights have not been adjudged cannot be bound by an injunction.
While the instant case deals with an injunction, it is an injunction founded on a nonparty’s aiding and abetting the violation of a protective order. Thus, we must consider whether aiding and abetting the breach of such an order gives the issuing court jurisdiction over the nonparty aider and abettor to enjoin him from continuing those actions.
Gottstein contends that we should adopt a rule saying that district courts have jurisdiction only over parties and signatories to their discovery orders, such that courts are powerless to enjoin the actions of other entities that aid and abet the violation of those orders. In support of his argument, Gottstein distinguishes orders created under Rule 26(c) from Rule 65 injunctions and points out that, while Rule 65 textually allows third-party aiders and abettors to be enjoined, Rule 26 does not.
His argument fails for multiple reasons. First, Rule 26 neither provides nor sug-
gests that courts lack the power to enjoin nonparties or nonsignatories who aid and abet the violation of their discovery orders. Second, relevant case law is against Gottstein’s position.
See, e.g., Waffenschmidt v. MacKay,
Egilman and Gottstein shared the common plan to violate CMO-3 and to disseminate Eli Lilly’s confidential material. This is the only reason Egilman sought Gottstein’s involvement and is also clearly the reason that Gottstein intervened in the Alaska case and generated the subpoenas. As he issued the subpoenas, burned DVD
IV. The district court did not clearly err in finding that the documents distributed by Gottstein and his conspirators included a substantial number that were confidential
The district court “examined a sampling of the documents distributed by the conspirators,” concluded that “[a]mong them [were] a substantial number whose publication would be annoying, embarrassing, oppressive, and burdensome to Lilly” and further observed that “they reveal trade secrets, confidential preliminary research, development ideas, commеrcial information, product planning, and employee training techniques.”
In re Zyprexa Injunction,
Gottstein contends that the documents he transmitted were not confidential, as evidenced by a variety of subsequent developments outside the record on appeal. This argument is not properly before us and should be raised in front of the district court in the first instance.
See Korn v. Franchard Corp.,
Y. The motions for judicial notice and to strike are denied
Gottstein moves for us to take judicial notice of materials not presented below. Eli Lilly moves in response to strike those portions of Gottstein’s brief referencing extra-record materials. We decline to take judicial notice of those materials and so deny Gottstein’s motiоn for judicial notice and also deny Eli Lilly’s motion to strike on the ground of mootness. In light of our foregoing discussion, however, it should be clear that our granting Gott
CONCLUSION
For the foregoing reasons, Gottstein’s motion for judicial notice is DENIED, Eli Lilly’s motion to strike is DENIED as moot and the judgment of the district court is AFFIRMED.
Notes
. Egilman first attempted to make significant modifications to the Endorsement of Protective Order, but the retaining firm quickly insisted that that was out of the question. They allowed, though, that he could follow the agreеment not to disclose confidential materials with the written-in line "unless this conflicts with any other sworn statements.” This modification, while portending the later mass disclosure of confidential material, is not relevant to the present appeal.
. It is clear
that
Egilman violated the protective order by failing to inform Eli Lilly of the second subpoena, which required an earlier production date.
See In re Zyprexa Injunction,
. As he testified, Gottstein understood Egilman's reluctance to send him a copy of the order as an effort to avoid his later being charged with knowledge of its contents. Gottstein did not try to convince Egilman to provide him with a copy of CMO-3.
.
See, e.g., U.S. Catholic Conference v. Abortion Rights Mobilization, Inc.,