The legal doctrine we discuss today, the reporter’s privilege, lies outside our traditional bailiwick but is worth a quick visit. Recognized in most states, the reporter’s privilege—also known as the journalist’s or newsman’s privilege—is an absolute or conditional “protection, under constitutional or statutory law, from being compelled to testify about confidential information or sources.” Black’s Law Dictionary (11th ed. 2019). Although rarely relevant in product-liability litigation, the doctrine was recently applied in the Zantac litigation to protect JAMA peer review documents from discovery by a plaintiff.
The plaintiffs allege that ranitidine, which had been sold under the brand name Zantac before it was removed from the market, caused them or their decedents to develop cancer. In 2020, the Journal of the American Medical Association (JAMA) announced that it was going to publish a peer-reviewed article linking Zantac to cancer and sent embargoed copies of the article to various entities. But JAMA pulled the article at the last moment after receiving criticism of the article’s underlying methodology. A revised version of the article was ultimately published after the authors reran their analysis using a different methodology.
Insinuating that JAMA’s decision to pull the original article reflected nefarious efforts “to suppress science critical of Zantac,” one plaintiff subpoenaed JAMA demanding that it produce all documents relating to its decision to withhold the article. JAMA resisted, arguing that its peer review process, which involves the confidential review and criticism of draft articles, is protected by the reporter’s privilege, which Illinois has codified at 735 ILCS 5/8-901 to -909.
The trial court ordered JAMA to produce a privilege log and copies of the documents for in camera review. After the court concluded that the documents were covered by the privilege, the plaintiff filed a motion to divest JAMA of the privilege, which is conditional under Illinois law. The court granted the motion and JAMA appealed.
The appellate court reversed in Gibbons v. GlaxoSmithKline, 2023 IL App (1st) 221666 (2003).
Before concluding that the statutory privilege protects JAMA peer review communications, the court rejected JAMA’s contention that the communications were protected under common law. While recognizing that the common law peer-review privilege protects communications involving assessments of a practitioner’s professional competence, the court refused “to extend that privilege” to “professional publications.” 2023 IL App (1st) 221666 ¶ 32.
Although it rejected JAMA’s common-law claim, it held that JAMA’s communications were protected from disclosure, finding that the plaintiff had failed to establish the prerequisites that must be satisfied before the statutorily enshrined reporter’s privilege may be lifted.
Under Illinois law, the reporter’s privilege “is qualified, not absolute.” To overcome the privilege, the party seeking disclosure must show that the information sought is relevant, that other sources of the information have been exhausted, and that the public interest favors disclosure. The Gibbons court found that the Zantac plaintiff satisfied neither the relevance nor the exhaustion requirement.
Information disclosed in JAMA’s privilege log revealed that JAMA had communicated with an unidentified government official in connection with its decision to drop the original version of the article at issue. The plaintiff seeking JAMA’s communications suspected that the official was someone at FDA given the article’s subject matter and the agency’s known critique of the original version’s underlying methodology.
According to the plaintiff, the possible intervention of an FDA official was relevant to causation because it called the article’s methodology into question and raised the specter of “government misfeasance.” The appellate court found no merit to either assertion. Based on its own in camera review of the documents, the court “fail[ed] to see” how “what JAMA editors or government regulators thought about [the article] is relevant to the causation question” in the plaintiff’s “underlying lawsuit.” 2023 IL App (1st) 221666 ¶ 42. And alleged governmental misfeasance, said the court, was “a ‘collateral matter’ that is not directly relevant to [the plaintiff’s] claims that the pharmaceutical company defendants intentionally or negligently marketed a drug that caused cancer.” Id. ¶ 43.
That finding alone was sufficient to defeat the plaintiff’s subpoena but the court went on to also conclude that the plaintiff had failed to exhaust other means to obtain JAMA’s communications with the presumed-FDA official. In particular, the court faulted the plaintiff for having failed to submit a Freedom of Information Act (FOIA) requesting the communications from the FDA. According to the court, the plaintiff “was required” by Illinois statute “to attempt to obtain the information from that agency before seeking divestiture” of JAMA’s reportorial privilege. 2023 IL App (1st) 221666 ¶ 50.
So, only tangentially related to our daily work, but an interesting decision nonetheless.