• Pharmaceutical Company Can't Force Journalist to Testify, Judge Rules
  • August 28, 2015
  • Law Firm: Rothwell Figg Ernst Manbeck A Professional Corporation - Washington Office
  • Pharmaceutical company Amgen Inc. cannot force a journalist to testify about an article he wrote in 2007 that was cited in a shareholder lawsuit against the company, a federal district judge in Washington ruled on Friday.

    U.S. District Judge Amit Mehta said Amgen failed to show it had exhausted other options for getting the information it wanted before subpoenaing journalist Paul Goldberg.

    Goldberg, who lives in Washington, is the editor-in-chief and publisher of The Cancer Letter, an online newsletter that reports on cancer research and other related issues. In 2007, he wrote an article about the termination of a clinical study of the Amgen drug Aranesp, used to treat patients with kidney disease or who are undergoing chemotherapy.

    Amgen shareholders filed a securities fraud class action against the company in federal district court in Los Angeles, claiming that officers failed to disclose information about the study. Amgen subpoenaed Goldberg to testify at a deposition. The company wanted to ask him about his conversations with Wall Street analysts, whether anyone else he spoke with was aware of the study and how Goldberg learned about the study.

    Goldberg refused, citing the reporter’s privilege under the First Amendment. He filed a motion in the federal district court in Washington asking the judge to toss out the subpoena. Mehta heard arguments on Aug. 11.
     
    Mehta said that Amgen should have pursued other sources of information before it subpoenaed Goldberg. For example, although Amgen was aware of 25 or 26 Wall Street analysts who followed the company’s activities, Amgen’s lawyer told the court that, at most, three of those analysts were deposed two years ago.

    “Deposing a large number of analysts in the hope of finding the two that spoke to Goldberg might indeed be akin to looking for a needle in a haystack, as Amgen contends,” Mehta wrote. “But the law requires Amgen to have conducted a thorough search of the hay before deposing Goldberg, which it failed to do.”

    The judge noted that Amgen also failed to take enough steps to gather information from doctors that Goldberg quoted in his story. Goldberg had provided answers to some of Amgen’s other questions through declarations filed by his lawyer with the court, and Mehta said there was no reason to think that forcing him to sit for a deposition would lead to new revelations.

    “Other than basic questions about his background, Goldberg has indicated that he will invoke the journalist’s privilege with respect to any question related to the Article. The court sees no need to require Goldberg to sit for a deposition in which he would invoke the journalist’s privilege to every substantive question posed,” Mehta wrote

    The judge denied Goldberg’s request that Amgen pay his legal fees. Amgen lost on the subpoena issue, but Mehta said there was no evidence of bad faith.