A Remarkable Story About an Inadvertent Disclosure, a Lawyer, and a Journalist

Sound like the start of a really bad joke?  Unfortunately, it's not. 

Here's the story.  Eli Lilly was recently in confidential talks with the federal government regarding the marketing of the company's schizophrenia drug, Zyprexa.  One of Lilly's lawyers apparently intended to send a confidential memorandum regarding those negotiations to co-counsel at Sidley Austin.  The lawyer at Sidley was named Bradford Berenson.  The sending lawyer also happened to have an email address for Alex Berenson, a reporter at the New York Times.  Unfortunately, the email's auto-complete feature filled in the address for the reporter rather than co-counsel.  The reporter thus got the sensitive document by mistake and eventually used the information to good effect: a front page story in the Times.  (HT to http://slashdot.org/) 

UPDATE: There is some suggestion now that, although there was a misdirected email, the reporter got his information from other sources.  What's not clear is whether the reporter was able to follow up with other sources, because he got the email.  That is, the reporter's story might still be the fruit of the misdirected email, even if the email itself did not contain the information that made its way into the story.  At this point, the details are still unclear.

SECOND UPDATE: Here's an interview with the New York Times reporter regarding what happened.

There are a couple of interesting lessons to draw from this unfortunate story, [if it all turns out to be accurate].  First, it serves as a cautionary tale to lawyers about email: be careful.  Be very careful.  I've given a number of lectures about the dangers of inadvertent disclosures, and I always mention the potential problem of the auto-complete feature.  This story offers a very telling illustration of the problem.

Second, the story offers an interesting contrast between journalism ethics and legal ethics.  In legal ethics, every jurisdiction that has opined on the issue of inadvertent disclosures has said that a lawyer who receives a document by mistake has an ethical obligation to notify the other side.  The law varies quite a bit regarding whether a lawyer should have any additional obligations, but at the very least, the duty to notify is well-established.  Apparently, journalists don't have a similar obligation.  So the next time someone makes fun of a lawyer for being excessively zealous, be sure to throw in a good joke about journalists for good measure.