If you’re a partner at a powerful law firm and your client is in secret settlement talks, you really don't want to
send a confidential e-mail to the wrong person - especially not a reporter. Guess what the New York Times' Alex Berenson found in his inbox? He tells the story.
BOB GARFIELD: There are no words to convey the sheer horror of realizing you've just hit “send” and dispatched an email to the wrong person. Horror is what a partner at the law firm Pepper Hamilton had to be feeling upon realizing that a confidential email about drug company client Eli Lilly had winged its way not to the intended recipient but to a New York Times reporter named Alex Berenson.
Berenson has written extensively about Eli Lilly’s legal troubles surrounding the improper marketing of a drug called Zyprexa, and he’s had disputes with the law firm Pepper Hamilton about his stories in the past.
So if you’re Eli Lilly’s legal representation and you want to carefully plot out the public message around the fact that your client may be forced to pay one billion dollars in fines, the largest ever for a drug company, you really don't want to email Alex Berenson.
But here’s what Berenson found one cold night in a remote town in Russia when he sat down to check his email. ALEX BERENSON: I get a ton of spam. In between the penis enlargement ads and the bet on the Super Bowl ads and the three or four emails that I know are actually real, I see this email that says, “Eager to catch up.” It’s a thread of five emails.
And for some reason I decided to open it, even though it wasn't anybody whose name I recognized immediately. It was just a series of first names. And it said, “Tom and I were racing to other meetings when we left the EDPA and I am just back, looking for Tom so we can have a call. We'll call you as soon as I have him. Preview: They're in the stratosphere on number and Meehan wants a deal.”
And that was it. That was the whole email. Now [BOB LAUGHS] I think I just kind of looked at the screen and was, like, wow. Boy, this was a mistake. BOB GARFIELD: What was it about? ALEX BERENSON: What it was about was Eli Lilly has been under civil and criminal investigation related to its marketing of Zyprexa. And so the EDPA – to translate this - is the Eastern District of Pennsylvania. They're in the stratosphere on number means that, you know, they were discussing some kind of settlement deal. And the Eastern District is coming up with a number that’s a lot more than Eli Lilly and Pepper Hamilton thought was appropriate. BOB GARFIELD: And Meehan, who wants to make a deal? ALEX BERENSON: He’s the U.S. attorney for the Eastern District. He’s in charge of negotiating this. BOB GARFIELD: So this was sent to someone named Berenson but it was not meant for Alex Berenson. ALEX BERENSON: Yes. It was meant for Brad Berenson, who is a lawyer at Sidley Austin, which is a [BOB LAUGHS] – you know, a fancy law firm in Washington that is also representing Eli Lilly here because, you know, a big company never has just one law firm in a case like this. They usually have, you know, three or four or five. He’s also a relative. He’s a second cousin. BOB GARFIELD: [LAUGHS] I'm going to take a wild guess and say you did not immediately reply to - [LAUGHTER] - to the lawyers at Pepper Hamilton to say, you know, you’re going to laugh, but you sent this to Alex Berenson of The New York Times who has been covering Eli Lilly and also your law firm’s role in all sorts of mischief. ALEX BERENSON: You are correct. I did not do that, and I also did not abide by the stock confidentiality notice that is at the bottom of all these emails that says, if you've reached this in error, delete this or, you know, the Starfleet Enterprise will come get you. [BOB LAUGHS]
Those things have no legal standing, and so, you know, I just ignored them. I want to emphasize that I was aware before I got this email that these talks were going on. Sometimes you’re aware of things as a reporter and you can't write about it because you don't have the sourcing locked down. And that’s the position I was in. BOB GARFIELD: How much time passed from the time you opened this thing on a cold Saturday somewhere on the outskirts of Siberia and when you filed your story with The Times? And were you in touch with the law firm about the email in the intervening time? ALEX BERENSON: I got back to the United States Monday. I went into The Times Tuesday. I started to work on the story. And one of the places I naturally tried to call was the Eastern District of Pennsylvania. And as soon as I called them, they, I think, felt honor bound to call Pepper Hamilton and tell them this.
And so I got a call from the person who'd sent this email to me saying, can you not use this? And I said, you know, are you kidding me? Of course I'm going to use it. And - BOB GARFIELD: [LAUGHS] That makes me a little bit sad. [LAUGHTER] Is this a partner at the law firm or just a lowly associate or what? ALEX BERENSON: A very high-powered person who I don't think is used to asking for help. [BOB LAUGHS] I think this person is more used to giving orders.
So we had this conversation and I said, look, this is real news. And then, you know, the person says to me, well, can you not use the fact that it was in this email, especially because you’re obviously getting a lot of information from other places? And that seemed reasonable to me. I didn't see any need to shove Pepper Hamilton’s nose in it.
That was where we left it. And lo and behold, a couple of days later – and I don't know where this came from – Portfolio magazine called me and said, we heard that you got this email. And in the echo chamber of the retelling of the story, the email wasn't just, you know, a quick slipup but a really big blunder.
That’s not the truth, and that’s one of the reasons I think, you know, I'm talking to you today, because I do want to set the record straight. BOB GARFIELD: Okay. So at some point in the future you’re going to be at a wedding or a bar mitzvah or, you know, Thanksgiving. ALEX BERENSON: [LAUGHS] BOB GARFIELD: [LAUGHS] And there will be Brad Berenson. And [LAUGHS] when you’re next face to face, will you, in the interim, have discussed this? ALEX BERENSON: I probably should drop him a note and I probably should make sure I send it to him and not to somebody else by accident. [BOB LAUGHS] But it will be funny the next time I see Brad, and I hope he has a sense of humor about it. BOB GARFIELD: Alex, thanks so much for joining us. ALEX BERENSON: Thanks for having me. BOB GARFIELD: Alex Berenson is a reporter at The New York Times. His novel, The Ghost War, is being released this month by Putnam.
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