We were pleased to read in today’s New York Times (page C3) that Judge Weinstein is holding a hearing to determine the proper scope of his injunction that seeks to recover copies of documents leaked in apparent violation of a protective order in the Zyprexa litigation. (We first posted about that issue on December 18, 2006, and we’ve watched it with interest since.) The question tomorrow will be whether the First Amendment permits a court to compel the return of all copies of documents that were originally leaked in violation of a protective order, but have now passed from hand to hand, and website to website, so that many people possessing copies of the documents had nothing to do with the original leak.

This is a difficult issue for us: We’re fans of both pharmaceutical companies and the First Amendment.

On the one hand, it is certainly true that, once documents have been posted on the web and are in the hands of anyone who chose to store or download them, it’s awfully hard to get all of the copies back. As Professor William Childs put it on his TortsProf blog (and was quoted in the Times), Judge Weinstein is seeking tounring [a] bell hanging around [the] neck of [a] horse [that is] already out of [a] barn being carried on [a] ship that has sailed.” On the other hand, both Eli Lilly and the court should properly be outraged that someone apparently leaked documents in violation of a court order to Lilly’s detriment. The hard part is picking a constitutionally permissible remedy.

We don’t hold ourselves out as constitutional scholars (heck, it’s not clear that we’re any kind of scholars at all), but how’s this for an answer: If it is unconstitutional (or just bad policy) to try to recover all of the copies of leaked documents in the hands of third parties, then Judge Weinstein can’t fix the problem in the Zyprexa litigation. But if, as we suggested in our December 18 post, plaintiffs’ counsel (or, here, perhaps an expert) routinely violate protective orders, Judge Weinstein can set a standard that will help in the future. Even if the leaked documents cannot be recovered, Judge Weinstein can impose an appropriate (and by that we mean “severe”) sanction on the people who leaked the documents. The court will thus send a message that violations of court orders in mass torts will not be tolerated in the future. It may be too late to solve the problem in the Zyprexa litigation, but it’s not too late to begin to address this problem as it relates to mass torts generally.