By Zoe Tillman, From Legal Times

A federal district judge in Washington on Tuesday expressed concerns about Amgen Inc.’s efforts to force a journalist to testify about an article that spurred a shareholder suit against the pharmaceutical company.

Paul Goldberg is editor-in-chief and publisher of The Cancer Letter, a newsletter that reports on cancer research. In 2007, he wrote about the termination of a clinical study of Aranesp, an Amgen drug used to treat patients with kidney disease or who are undergoing chemotherapy. Amgen shareholders filed a class action in federal district court in Los Angeles that accused the company of failing to disclose information about the study.

Amgen subpoenaed Goldberg for deposition testimony about his article, but Goldberg refused, citing the reporter’s privilege under the First Amendment. Goldberg, who lives in Washington, filed papers in June in the federal district court there challenging the subpoena. U.S. District Judge Amit Mehta heard arguments on Tuesday.

Amgen’s lawyer, John Hueston of Hueston Hennigan, told the judge the company wanted Goldberg to testify about nonconfidential information, such as confirming statements he’d already made about the article—for example, that he spoke with unidentified Wall Street analysts who didn’t know about the termination of the clinical study—and sharing how he learned about the study.

Mehta pressed Hueston about whether Amgen had exhausted other options for obtaining the information it wanted from Goldberg, and to explain why his testimony was critical to Amgen’s defense against the shareholder suit. When Hueston said that Amgen had deposed three securities analysts, Mehta asked whether that was sufficient, based on earlier statements by Hueston that the company was aware of approximately 25 analysts who follow its activities. The case law required a reasonable effort, but didn’t set specific benchmarks, Hueston said.

“We are not using Mr. Goldberg as any kind of shortcut,” Hueston said.

In the shareholder class action, Amgen wants to show that information about the clinical study was already known in the marketplace before Goldberg published his article. After Mehta indicated that he might have a problem with a line of questioning about the identity of Goldberg’s sources, Hueston said that Amgen wouldn’t ask Goldberg to name confidential sources, but that knowing how Goldberg learned about the clinical study and who else he told about it was relevant to the Los Angeles case.

Goldberg’s attorney, Steven Lieberman of Rothwell, Figg, Ernst & Manbeck, told Mehta that Amgen had failed to take a number of steps to get the information it wanted before subpoenaing Goldberg, such as deposing more Wall Street analysts and taking steps to speak with doctors interviewed by Goldberg for the article.

As a multimillion-dollar pharmaceutical company embroiled in yearslong litigation, it was reasonable to expect Amgen to depose a larger pool of analysts and to make a greater effort to secure information from sources quoted by name in Goldberg’s article, Lieberman said.

Lieberman argued that the outcome of Goldberg’s case would affect how other journalists did their jobs and how sources interact with reporters. Journalists should be the avenue of last, not first, resort for parties seeking information in litigation, he said.

Mehta said he would issue a decision soon, adding that he did not want to delay the litigation in Los Angeles.

IMAGE: Amit Mehta. Photo: Diego M. Radzinschi/NLJ

For more on this story go to: http://www.nationallawjournal.com/legaltimes/id=1202734480954/Journalist-Fights-Pharmaceutical-Company-Subpoena#ixzz3ienwkP7w