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Goldberg v. Amgen, Inc.

United States District Court, D. Columbia.

August 21, 2015

Paul B. Goldberg, Movant,
v.
Amgen, Inc., Respondent

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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          For PAUL B GOLDBERG, Non-Party Petitioner: Steven Lieberman, LEAD ATTORNEY, ROTHWELL, FIGG, ERNST & MANBECK, PC, Washington, DC.

         For AMGEN INC., Defendant: Douglas J. Dixon, John C. Hueston, PRO HAC VICE, HUESTON HENNIGAN LLP, Newport Beach, CA; Glenn K. Vanzura, PRO HAC VICE, IRELL & MANELLA LLP, Los Angeles, CA; Moez M. Kaba, Tristan S. Favro, PRO HAC VICE, HUESTON HENNIGAN LLP, Los Angeles, CA; Ryan Lee Ford, HOGAN LOVELLS U.S. LLP, Washington, DC.

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         MEMORANDUM OPINION AND ORDER

         Amit P. Mehta, United States District Judge.

         This case presents an issue that appears with increasing frequency in the federal courts: Under what circumstances can a journalist be compelled to testify in a civil case about his or her First Amendment-protected activities? The present dispute arises out of a shareholder class-action lawsuit pending in federal court in the Central District of California, In Re Amgen Inc. Securities Litigation, No. 07-2536 (C.D. Cal.). In connection with that case, Respondent Amgen, Inc., issued a subpoena to Movant Paul B. Goldberg, a journalist residing in Washington, D.C. Amgen sought to depose Goldberg regarding an article that he wrote in 2007 about a clinical trial of one of Amgen's FDA-approved drugs, Aranesp. The clinical trial was terminated early because of safety and efficacy concerns. At issue in the California litigation is whether Amgen and four of its former officers misled investors when they publicly stated that Aranesp was safe for its FDA-approved uses. The plaintiffs allege that they suffered losses when Goldberg's article revealed the truth about Aranesp's safety and efficacy. Goldberg moved to quash Amgen's subpoena, claiming that the information it seeks is protected by the First Amendment reporter's privilege.

         Having considered the parties' respective arguments and the record evidence, the court grants Goldberg's motion to quash. Goldberg's request for attorney's fees is denied.

         I. BACKGROUND

         A. The Cancer Letter Article

         The Movant in this matter is Paul Goldberg, a journalist and editor-in-chief/publisher of The Cancer Letter. Decl. of Paul B. Goldberg [hereinafter " Goldberg Decl." ], ECF No. 1-2, ¶ 1. The Cancer Letter is a weekly newsletter-style publication that covers events concerning the development of cancer therapies, cancer research funding, and health care finance, legislation, and policy. Id. ¶ 2. The Cancer Letter is based in Washington, D.C. Id. ¶ 1.

         On February 16, 2007, Goldberg authored and published an article titled " Danish Researchers Post Long-Awaited Aranesp Results--Ever So Discreetly" [hereinafter " Article" ]. Goldberg Decl., Ex. A, ECF No. 1-3. The Article described a study conducted by the Danish Head and Neck Cancer Group, which the parties have referred to as the " DAHANCA 10" study, about the efficacy of adding Aranesp to radiation treatment of patients with head and neck cancer. Id. The study, according to the Article, " showed a significantly inferior therapeutic outcome from adding Aranesp to radiation treatment of patients with head and neck cancer." Id. at 1. The study was suspended in October 2006 because of " potential unexpected negative effects," id. at 4, and ultimately was not resumed, id. at 2.

         The Article also reported that few were aware of the DAHANCA 10 study: " [E]ven informed observers have been largely unaware that the Danish study was temporarily stopped on October 18, 2006, and that the decision not to resume the study was made on Dec. 1, 2006, and posted on the Web by the principal investigator, Jens Overgaard." Id. at 1-2. The Article went on to note that Amgen had not announced the study's results in public disclosures or during its January 25, 2007, conference call discussing its annual financial results. Id. at 2.

         The Article also stated that " [s]everal Wall Street sources who monitor Amgen confirmed that they have been awaiting these results and were not aware of them

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until hearing about the closing of the [clinical] trial from this reporter." Id. The Article did not identify the Wall Street sources. In a declaration submitted in this matter, Goldberg clarified that he had spoken to two Wall Street sources before publishing the Article. Goldberg attested that one of them had talked to him on the condition that the source's comments would remain confidential. Supplemental Decl. of Paul B. Goldberg [hereinafter " Goldberg Supp. Decl." ], ECF No. 8-1, ¶ ¶ 4-5. As for the other, Goldberg could not recall the identity of the source and thus could not recall whether he had promised the source confidentiality. Id. ¶ 6.

         The Article did not only refer to Goldberg's Wall Street sources, but identified several other sources by name. They included: (1) Dr. Michael Henke, a German oncologist, who was quoted as saying he had found the DAHANCA 10 study " by [using] Google," Goldberg Decl., Ex. A, at 2; (2) Dr. David Steensma, an associate professor of medicine and oncology at the Mayo Clinic, who commented on the validity of the DAHANCA 10 study, id. at 3; (3) Dr. Charles Bennett, an oncologist at Northwestern University, who said that he had learned about the DAHANCA 10 study results recently from a European colleague, id. ; (4) Dr. Scott Lippman, the then-chairman of thoracic/head and neck medical oncology at M.D. Anderson Cancer Center, who stated that the Danish study was consistent with prior studies of similar drugs, id. ; and (5) Dr. Howard Ozer, chief of hematology and oncology and professor of medicine at the University of Oklahoma Cancer Center, who, like Dr. Henke, opined on the validity of the study, id. at 3-4. The Article noted that Goldberg had unsuccessfully tried to reach the DAHANCA 10 study's principal investigator, Jens Overgaard, for comments. Id. at 3.

         B. Amgen's Discovery Efforts

         According to the plaintiffs in the Amgen Securities case, the Article was the first time that Amgen's investors were informed of the DAHANCA 10 study's results. Amgen Mem., at 1. The Article was thus a " corrective disclosure," which revealed the truth about Aranesp's safety. Id. at 2. Amgen contends that " [o]ne of the ways [it] can defend [itself] is to show that investors or other stock market participants learned of the DAHANCA 10 termination before the Article was published on February 16, 2007," id., and therefore the Article's publication did not cause their losses. Amgen argues that Goldberg, as author of the Article, is " uniquely positioned to provide admissible testimony critical to Amgen's defense concerning the disclosure of the DAHANCA 10 termination to market participants." Id.

         Before serving Goldberg with a subpoena, Amgen made some effort to discover the evidence it sought through alternative sources. Specifically, it served document subpoenas on the four doctors identified in the article who are located in the United States: Dr. Bennett, Dr. Ozer, Dr. Steensma, and Dr. Lippman. Decl. of Douglas J. Dixon [hereinafter " Dixon Decl." ], ECF No. 2-1, ¶ ¶ 5-9. Amgen also served a document subpoena on MD Anderson Cancer Center, Dr. Lippman's former employer. Id. ¶ 10. Other than obtaining a copy of the Article, none of these subpoena efforts bore any fruit. Id. ¶ ¶ 11-14. Moreover, Dr. Steensma informed Amgen through his counsel that he could not recall any communications with Goldberg before the Article was published. Id. ¶ 11. And Dr. Ozer told Amgen that he could not recall specifics of the DAHANCA 10 trial or his quote in the Article. Id. ¶ 12.

         Before it subpoenaed Goldberg, Amgen did not, however, attempt to depose any of the U.S.-based physicians mentioned

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above. Nor did it attempt to obtain any evidence from Dr. Henke, who resides in Germany. Amgen Mem. at 15 n.8. Amgen also did not try to obtain evidence from the DAHANCA 10 study's lead investigator, Jens Overgaard. Mot. Hr'g Tr. 21-23, Aug. 11, 2015, ECF No. 10.

         Furthermore, according to an affidavit submitted by Amgen's counsel, before Amgen subpoenaed Goldberg, it did not depose any of the Wall Street analysts who followed Amgen in 2007. See Dixon Decl. ¶ 23. As of July 9, 2015, the date Amgen filed its opposition brief, Amgen had only noticed depositions of five investment managers and analyst depositions. Id. However, at oral argument held on August 11, 2015, Amgen's counsel represented--for the first time--that Amgen had deposed three analysts two years earlier in October 2013. Mot. Hr'g Tr. 13, 35. Amgen's counsel also stated that, since serving Goldberg, Amgen had deposed four investment managers of the lead plaintiff, Connecticut Retirement Plans and Trust Funds, with another deposition pending. Id. at 36. Though not entirely clear, these may be the same five investment managers noticed for depositions as of July 9, 2015.

         C. Procedural Background

         On May 12, 2015, Amgen served on Goldberg the subpoena at issue in this case. The parties met and conferred about the subpoena, but were unable to resolve their differences. Thereafter, on June 25, 2015, Goldberg filed a motion seeking to quash Amgen's subpoena. In its opposition brief, Amgen made clear that it does not seek confidential information from Goldberg, such as the names of his sources, but only non-confidential information about his writing of the ...


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