United States District Court, D. Columbia.
Paul B. Goldberg, Movant,
Amgen, Inc., Respondent
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
PAUL B GOLDBERG, Non-Party Petitioner: Steven Lieberman, LEAD
ATTORNEY, ROTHWELL, FIGG, ERNST & MANBECK, PC, Washington,
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.
OPINION AND ORDER
Mehta, United States District Judge.
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.
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
The Cancer Letter Article
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.
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.
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.
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
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.
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.
Amgen's Discovery Efforts
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."
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.
it subpoenaed Goldberg, Amgen did not, however, attempt to
depose any of the U.S.-based physicians mentioned
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.
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.
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