Full opinion text
MEMORANDUM, FINAL JUDGMENT, ORDER & INJUNTION WEINSTEIN, Senior District Judge. Table of Contents I. IntRoduction.391 II. Faots.397 A. The Litigation .397 B. Protective Order, Case Management Order No. 3.397 C. Agreement by Egilman to be Bound by Protective Order.399 D. Conspiracy of Berenson, Egilman, and Gottstein.400 E. Subpoenas Issued by Gottstein.401 F. Response to the Subpoenas.402 G. Discharge of Egilman by Lanier.403 H. Dissemination of Documents Pursuant to Conspiracy.403 1. Acts by Conspirators.403 2. Protectable Distributed Documents .404 I. Attempts by Special Master Woodin to Retrieve Documents .404 J. Publication by N.Y. Times.405 K. Formal Court Intervention .405 1. Argument Before Magistrate Judge Mann.405 2. Temporary Restraining Order by Judge Cogan.405 3. Order to Show Cause for Deposition of Egilman by Judge Weinstein.406 4. Evasive Actions of Enjoined Persons.406 5. Preliminary Injunction by Judge Cogan.407 6. Hearing on Permanent Injunction By Judge Weinstein.408 7. Invitation to Berenson to Appear by Judge Weinstein.408 a) Invitation.408 b) Response.411 III. Law .412 A. Public Right of Access to Documents Produced in Discovery.412 B. Protective Orders .413 1. Generally.413 2. Rule 26(c) .414 a) Generally.414 b) Subsection 7.415 3. Umbrella Protective Orders.416 4. First Amendment Implications of Protective Orders .416 C. Court Authority to Enforce Orders.417 1. Generally.417 2. National Scope.418 D. Injunctions.418 1. Generally.418 2. Persons Bound.418 3. Enjoining Dissemination of Stolen Protected Documents.419 4. Content Neutral .420 IV. Application Of Law To Facts ^ tO 1 — L The Documents are Properly Protected Under CMO-3. 4^. DO I — I 1. CMOS is a Valid Umbrella Protective Order. 4^. DO I — I 2. Documents Contain Information Protectable by Rule 26(c) and CMOS. DO 1 — 1 Court has Power to Order Return of Stolen Documents. td DO DO Restrictions on Dissemination Do Not Violate First Amendment Rights O DO CO 1. CMOS’s Restriction on Dissemination of Confidential Documents Does Not Implicate First Amendment Rights. DO CO 2. The Injunction’s Restriction on Dissemination Does Not Impinge on First Amendment Rights . 4^ DO CO Enjoining Persons Who Refuse to Return the Documents is Necessary to Prevent Irreparable Harm to Lilly. Ü 4^ DO 4^ Enjoining Persons Who Returned the Documents is Not Necessary to Prevent Irreparable Harm to Lilly. Websites Should Not Be Enjoined. All Named Persons are Bound by the Injunction. Persons Bound. 1. Recipients of Documents. 2. Amelia Desanto. 3. N.Y. Times, National Public Radio and Snighdha Prakash. 4. Berenson. 5. Gottstein and Egilman. 6. Websites. 7. Persons Who Have Not Returned the Documents. 8. Persons Restrained. WO¡4 H 4^4^4^.4^4^4^4^4^4^4^4^4^ DODODODODODODODODODODODO 00 00 00 00 00*^<]<l<10í0íül V. Findings Of Fact And Law. 4^ DO ZD A. Embodied in this Memorandum. 4S*. DO ZD B. Irreparable Harm to Lilly. 4S». DO ZQ C. Lack of Appreciable Harm to Those Bound 4^ DO CD D. Conclusion. 4^ DO VI. Conclusion.:.429 VII. Stay.429 VIII. Injunction.429 I. Introduction This case raises intriguing questions of when it is appropriate to conduct aspects of civil litigation in secrecy, and of what are appropriate limits on civil disobedience by newspaper reporters, forensic experts, and attorneys. Over the past two and a half years, some thirty thousand related personal injury suits have been before this court as part of a large multidistrict litigation, and in state courts. People suffering from schizophrenia were prescribed the anti-psychotic drug Zyprexa distributed by defendant, Eli Lilly & Company (“Lilly”). Plaintiffs allege that as a result of inadequate warnings by Lilly they became obese and suffered from diabetes. The court ordered internal documents of Lilly sealed on consent of the parties so that discovery could be expedited and the individual cases promptly settled or otherwise disposed of on their merits. See In re Zyprexa Prods. Liab. Litig., No. 04-MD-1596, 2004 WL 3520247 (E.D.N.Y. Aug. 9, 2004) (“Case Management Order No. 3” or “CMO-3”) (hereinafter “protective order”); see also Fed.R.Civ.P. 26(c)(7) (“the court ... may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including .... that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a designated way”); S.E.C. v. TheStreet.com, 273 F.3d 222, 229 (2d Cir.2001) (“protective orders issued under Rule 26(c) serve the vital function of securing the just, speedy, and inexpensive determination of civil disputes by encouraging full disclosure of all evidence that might conceivably be relevant”) (quotation omitted); Parts III.B and IV.A, infra. Almost all of the cases have now been settled. Millions of documents obtained from Lilly by the court-appointed Plaintiffs’ Steering Committees I and II (“PSC”) have been made available to all plaintiffs’ attorneys in pending federal and state cases. See In re Zyprexa Prods. Liab. Litig., 467 F.Supp.2d 256, 263-64 (E.D.N.Y.2006) (“All materials obtained by PSC I and PSC II in pretrial discovery have been ordered to be made available to all plaintiffs, state and federal.”). A large number of documents supplied by Lilly are subject to CMO-3; they are stamped, “Confidential — Subject to Protective Order.” Other documents supplied by plaintiffs’ counsel involving medical records of individual plaintiffs have been sealed. A New York Times reporter, Alex Ber-enson, was aware of the protective order. He discussed with a plaintiffs’ expert, Dr. David Egilman, means of escaping the order’s restrictions and obtaining protected documents in the expert’s possession, see Part II.D, infra, 400-01 even though Egil-man had agreed in writing to be bound by the order. See Part II.C, infra. Both Berenson and Egilman were cognizant of the fact that paragraph 14 of CMO-3 took account of the possibility that the protected documents could be subpoenaed by courts or executive agencies. So Berenson provided Egilman with the name of an Alaska attorney, James Gottstein, unconnected to the instant litigation, who might be willing to employ a pretense to subpoena the documents and help disseminate them in violation of the protective order. See Part II.D, infra. To carry out the scheme for obtaining and disseminating the protected documents, Gottstein intervened in a state case in Alaska wholly unrelated to Zyprexa. In that case, he then subpoenaed from Egil-man confidential documents he knew to be under the protective order which bore no relevance to the Alaska litigation. The subpoenaed documents were sent by Egil-man to Gottstein pursuant to an expedited amended subpoena about which Lilly was deliberately kept in the dark so that it would be unable to make a timely objection. See Part II.E, infra. Gottstein immediately sent the confidential documents on to Berenson and others. See Parts II.E and II.H.l, infra. None of the three conspirators, Beren-son, Egilman, and Gottstein, sought a lifting or modification of the protective order, despite the declassification procedures provided for in paragraph 9 of CMO-3. See In re Zyprexa, No. 04-MD-1596, 2004 WL 3520247, at *5. Intending that they be published extensively, Gottstein distributed the sealed documents to various organizations and individuals. No distribution to newspapers other than the New York Times was made because of Berenson’s explicit warning to his co-conspirators that if the Times was not given “an exclusive” on the story, it would not publish anything at all about the documents. See Part II.H.l, infra. Almost at once, the New York Times published excerpts from, and summaries of, the protected documents in a series of lead articles under Berenson’s byline. See, e.g., Alex Berenson, Eli Lilly Said to Play Down Risk of Top Pill, N.Y. Times, Dec. 17, 2006, at A1; Alex Berenson, Drug Files Show Maker Promoted Unapproved Use, N.Y. Times, Dec. 18, 2006, at A1; Alex Berenson, Disparity Emerges in Lilly Data on Schizophrenia Drug, N.Y. Times, Dec. 21, 2006, at A1; see also Part II. J, infra. Upon being informed of the breach, the court ordered Gottstein to retrieve the documents and return them to the court-appointed Special Master for Discovery. See In re Zyprexa Prods. Liab. Litig., No. 04-MD-1596, 2006 WL 3877528 (E.D.N.Y. Dec. 19, 2006). See Parts II.I and II.K.2, infra. Learning that some of the individuals to whom the conspirators had sent the documents had refused to return them and were attempting widespread dissemination, the court issued a preliminary injunction. It enjoined individuals and organizations who had received the documents from Gottstein — except for Berenson; Snighda Prakash of National Public Radio; and congressional staffers Steve Cha and Amelia Desanto (none of whom had been included by Lilly among those from whom it sought return) — from further disseminating them. The injunction also ordered specified websites not to publish the documents. See In re Zyprexa Prods. Liab. Litig., No. 04-MD-1596, 2007 WL 27117 (E.D.N.Y. Jan. 4, 2007); Parts II.K.5 and II.K.6, infra. The documents may possibly be available on other websites. Their gist can be obtained from stories in the press. See, e.g., Alex Berenson, Eli Lilly Said to Play Down Risk of Top Pill, N.Y. Times, Dec. 17, 2006, at Al; Alex Berenson, Drug Files Show Maker Promoted Unapproved Use, N.Y. Times, Dec. 18, 2006, at Al; Editorial, Playing Down the Risks of a Drug, N.Y. Times, Dec. 19, 2006; Julie Creswell, Court Orders Lawyer to Return Documents About an Eli Lilly Drug, N.Y. Times, Dec. 20, 2006; Alex Berenson, Disparity Emerges in Lilly Data on Schizophrenia Drug, N.Y. Times, Dec. 21, 2006, at Al. A final injunction is now being issued against two of the conspirators — Egilman and Gottstein — and others who have not returned the documents they obtained from Gottstein; some of these individuals are mentioned in the court’s prior orders. See Parts IV.D and IV.H, infra. No newspaper or website is directed to do anything or to refrain from doing anything. See Parts IV.F, IV.H.4, and IV. H.7, infra. No person is enjoined from expressing an opinion or speaking or writing about the documents. See Part VII, infra. A perplexing issue is presented by Lilly’s request for an injunction against websites to which the conspirators sent the documents or which might have been used for further dissemination by those to whom the documents were originally sent. See Part IV.F, infra. The internet, with its almost infinitely complex worldwide web of strands and nodes, is a major modern tool of free speech and freedom both here and abroad. Its reach extends as far as, and perhaps exceeds, that of newspapers and other traditional media. The law is rightly hesitant about allowing government — including the courts — to inhibit and restrict the use of such modern instruments of communication. See U.S. Const, amend. I. Cf. Jeffrey S. Klein and Nicholas J. Pappas, When a Private Sector Employer Fires Worker for Blogging, N.Y. L.J., Feb. 5, 2007, at 3 (pointing out that with over 60 million blogs in existence — a blog being a type of online diary posted to a website — whistleblowing via the internet, on and off business and government premises, is becoming increasingly common). See Note, Protecting the New Media: Application of the Journalist’s Privilege to Bloggers, 120 Harv. L. Rev. 996 (2007); Michael Russo, Are Bloggers Representatives of the News Media Under the Freedom of Information Act?, 40 Colum. J. L. & Soc. Probs. 225 (2006). Irresponsible people may exercise their own right and opportunity to speak in a manner abusive and constrictive of the rights of others on the internet, in the press, and in other fora. Those whose rights have been abused by the conspirators in violation of the court’s protective order include Lilly and tens of thousands of plaintiffs and their attorneys who depended upon CMO-3 and sealing orders of the court to effectively prosecute this important litigation without unnecessary breach of the parties’ privacy. It is significant that both the PSC and Lilly support the issuance of the injunction now being issued. Problems with restrictions by authorities on dissemination of knowledge are not new. They trace back to the Garden of Eden and Socrates’ Athens. Most recently they were manifested when people physically disrupted a meeting at Columbia University, preventing speakers from exercising an opportunity to convey their views in an academic setting on a controversial matter. Columbia’s President, Lee C. Bollinger, himself a student of free speech, remarked: [T]he disruption of that event constituted a serious breach of faith against an academic community built on the freedom to think, speak, debate, and disagree .... [Ejvery idea poses a risk of action, for good or bad. But what is hard to learn and hard to live by is the single idea that words are the better way in which to work through conflict and danger. This is certainly true for universities, but also for healthy, free societies.... See Paul Hond, Fighting Words, Columbia, Winter 2006-07, p. 13, 16 (sidebar). Notably, in the Columbia University ease, the disrupters were sought out for discipline to prevent future assaults on the freedoms of others. Id. Orders for sealing of documents are designed to permit litigants and the courts to examine a party’s internal records, which may include embarrassing personal medical information, or valuable business secrets and commercial data, without unnecessarily exposing them to the public’s and competitors’ view. See Fed.R.Civ.P. 26(c)(7); Parts III.B and IV.A, infra. Cf. Nat’l Ass’n for Advancement of Colored People v. State of Ala. ex rel. Patterson, 357 U.S. 449, 462, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958) (holding compelled disclosure of organization’s membership list unconstitutional given “inviolability of privacy in group association”). Such protective orders take account of the public’s interest in seeing the documents. After balancing the public’s right to know and the parties’ privacy rights, should the documents sealed by an order such as CMO-3 be found not to warrant continued protection, the order can be modified. See, e.g., In re Agent Orange Prod. Liab. Litig., 104 F.R.D. 559, 572 (E.D.N.Y.1985) (declassifying documents upon a showing “that the need for disclosure outweighs the need for further protection”), aff'd 821 F.2d 139 (2d Cir.1987). On motion of a party — or of a non-party— who can demonstrate a need to know, sealed documents may be unsealed pursuant to general policy and the terms of the protective order itself. See CMO-3 at ¶¶ 9, 16; Part IV.A, infra; see also In re Agent Orange Prod. Liab. Litig., 821 F.2d 139, 145 (2d Cir.1987) (“It is undisputed that a district court retains the power to modify or lift protective orders that it has entered.”); Monograph, Individual Justice in Mass Tort Litigation, 66-72 (1995); Aaron Twerski, et al., Secrecy and the Civil Justice System, 9 J. of L. & Pol’y, 51, 51-107 (2000); Note, Secrecy in Civil Trials: Some Tentative Views, 9 J. of L. & Pol’y, 53 (2000); Catherine Wimberly et al., Secrecy in Law and Science, 23 Cardozo L.Rev. 1 (2001). Conspirators in the instant case who deliberately thwarted a federal court’s power to effectively conduct civil litigation under the rule of law, as well as those in concert with them, should be enjoined to deter further violations of this and other courts’ orders. See Part IV.D, infra. In a democracy it is important to craft any injunction as narrowly as possible so that in protecting essential court processes free speech is not unnecessarily restricted. See Parts IV.EF, infra; Cf, e.g., Ronald L. Goldfarb, The Contempt Power, 3 (1963) (“The summary and comparatively unlimited exercise of the [contempt] power compounds the danger to individual freedom which its mere existence implies.”). But cf id. at 89 (finding a “sound reason” to use contempt power to prevent dissemination by the media of evidence which will be used at trial because of adverse impact on the right to a fair trial). Here, an expert hired by plaintiffs agreed in writing not to distribute documents sealed by court order. See Part II.C, infra. He was given access to those documents so that he could assist plaintiffs — people suffering from serious disabilities, mental and physical — in pressing their civil suit against defendant, a major pharmaceutical company. The litigation resulted in an enormous cache of documents made available, subject to CMO-3, to plaintiffs and courts — state and federal — across the country. Tens of thousands of cases have been settled based on these documents with the assistance of all the states and the federal government. See In re Zyprexa Prods. Liab. Litig., No. 04-MD-1596, 2006 WL 3501263, at *1 (E.D.N.Y. Dec. 4, 2006) (“In compliance with this court’s instructions ... all fifty states as well as the federal government have resolved their Medicare and Medicaid liens.”); In re Zyprexa Prods. Liab. Litig., 451 F.Supp.2d 458 (E.D.N.Y.2006) (Memorandum Order & Judgment Regarding Liens and Disbursement Procedures). Egilman, in violation of his legal obligations, and in conspiracy with a reporter, Berenson, and an attorney unconnected to the litigation, Gottstein, deliberately violated this court’s protective order and published sealed documents, intending that they be widely distributed. See Part II.D, infra. Conspirators Egilman and Gott-stein took particular pains to deny Lilly an opportunity to prevent the breach; they made the documents public before Lilly could move to preclude their release, after they had in effect assured Lilly that it had time to protect itself in court before any release would occur. Egilman, in violation of his obligations under CMO-3, did not inform Lilly about a second subpoena procured by Gottstein that contained an accelerated production date. It is not necessary now to decide whether in the long run the public was better served by this conspiracy to flout CMO-3 than by seeking direct and open revelation through amendment of the court’s protective order. Even if one believes, as apparently did the conspirators, that their ends justified their means, courts may not ignore such illegal conduct without dangerously attenuating their power to conduct necessary litigation effectively on behalf of all the people. Such unprincipled revelation of sealed documents seriously compromises the ability of litigants to speak and reveal information candidly to each other; these illegalities impede private and peaceful resolution of disputes. This is not a case of a government employee, whistleblower, protestor, or juror who faces the difficult choice of “conform[ing his] behavior to the official ‘law’ while protesting that the law was ‘wrong’ ... or ... conform[ing] to [his] interpretation” of the law, absorbing whatever legal sanctions are a consequence of the choice. Robert M. Cover, The Supreme Court, 1982 Term, Foreword: Nomos and Narrative, 97 Harv. L.Rev. 4, 47 (1983); see also, e.g., Mark Juergensmeyer, Gandhi vs. Terrorism, Daedalus, 30 (Winter 2007); Note, Considering Jury “Nullification”: When May and Should a Jury Reject the Law to Do Justice, 30 Am.Crim. L.Rev. 239, 254 (1993) (“There is ... a deep and profound sense of many Americans that they have the duty to revolt in large and small ways. This is our ultimate protection against tyranny and injustice. Nullification is one of the peaceful barricades of freedom.”). For here, the “law,” i.e. the protective order, contained an explicit means of escape for those who believed they had. a reasonable justification for not complying; the court reserved the power to modify and declassify sealed documents in the public interest. See CMO-3 at ¶¶ 9, 16. In any event, the whistleblower or concerned citizen “defense” should be raised during possible contempt, rather than injunction, stages of this proceeding. Nor is this a case of a newspaper obtaining, with clean hands, documents provided to it by government employees, whistleblowers, or protestors. See Smith v. Daily Mail Publ’g Co., 443 U.S. 97, 103, 99 S.Ct. 2667, 61 L.Ed.2d 399 (1979) (“[I]f a newspaper lawfully obtains truthful information about a matter of public significance then state officials may -not constitutionally punish publication of the information, absent a need ... of the highest order.”) (emphasis supplied). It is unlike New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971) (hereinafter “Pentagon Papers”). In the Pentagon Papers case, there was no suggestion that the documents were purloined at the New York Times’ or Washington Post’s instigation. Here, a reporter was deeply involved in the effort to illegally obtain the documents. See Part II.D, infra. Affirmatively inducing the stealing of documents is treated differently from passively accepting stolen documents of public importance for dissemination. See III.D.3, infra. But see Bartnicki v. Vopper, 532 U.S. 514, 528-29, 121 S.Ct. 1753, 149 L.Ed.2d 787 (2001) (noting that the issue has been left open). The New York Times itself appears to recognize the distinction. See The New York Times, Ethical Journalism: A Handbook of Values and Practices for the News and Editorial Departments, 9 (Sept.2004) (“Staff members must obey the law in pursuit of news. They may not break into buildings, homes, apartments, or offices. They may not purloin data, documents or other property, including such electronic property as databases and e-mail or voice mail messages. They may not tap telephones, invade computer files or otherwise eavesdrop electronically on news sources. In short, they may not commit illegal acts of any sort.”). But see Parts II.D. and II. K.7(b), infra (noting Berenson’s and the Times’ position in the instant case). In the United States the media is, in effect, the fourth branch of government. It enables the people to knowledgeably exercise their sovereignty. But neither members of the media, nor of any other branch of our government, are authorized to violate court orders. See Dietemann v. Time, Inc., 449 F.2d 245, 249 (9th Cir.1971) (“The First Amendment has never been construed to accord newsmen immunity from torts or crimes committed during the course of newsgathering.”). Cf. Pentagon Papers, 403 U.S. at 733, 91 S.Ct. 2140 (White, J. concurring) (“Prior restraints require an unusually heavy justification under the First Amendment; but failure by the Government to justify prior restraints does not measure its constitutional entitlement to a conviction for criminal publication”). At this point in the litigation there is no need to measure the actions of the conspirators against the ethics rules for journalists, forensic experts, or lawyers. Holmes’ punitive view of the law prevails when a specific order of the court is deliberately flouted. See, e.g., John C. Goldberg & Benjamin C. Zipursky, Seeing Tort Law from the Internal Point of View: Holmes and Hart on Legal Duties, 75 Ford. L.Rev. 1563 (2006) (discussing “morality,” Holmes’ “bad man” rule, and Hart’s “internalization” view). It is enough to find that three individuals — Berenson, Egilman, and Gottstein — conspired to obtain and publish documents in knowing violation of a court order not to do so, and that they executed the conspiracy using other people as their agents in crime. See Parts II.D-II.H, infra. The injunction requires the return of the protected documents. See Parts IV.B and VIII, infra. It is limited to individuals who participated in the conspiracy or aided the conspirators. See Parts II.D-II.F, II.H, and VIII, supra. No one is restricted from discussion of documents already revealed. To extend the reach of the injunction further might involve the court in attempting to control a constantly expanding universe of those who might have, or will have, access by reason of the original breach. That such an amplified injunction could be enforced effectively is doubtful. Even if enforcement were possible, on policy grounds the risk of unlimited inhibitions on free speech should be avoided when practicable. See People of N.Y. v. Operation Rescue Nat’l, 80 F.3d 64, 70 (2d Cir.1996) (“in exercising its equitable powers, a court ‘cannot lawfully enjoin the world at large’ ”) (quoting Judge Learned Hand in Alemite Mfg. Corp. v. Staff, 42 F.2d 832, 832 (2d Cir.1930)). II. Facts A. The Litigation Litigation against Eli Lilly & Co. for injuries allegedly caused by the use of the anti-psychotic drug Zyprexa was initiated in this court in March 2004. See Benjamin v. Eli Lily & Co., Docket No. 04-CV-00893. Many thousands of other cases were then transferred to this court from federal district courts throughout the United States pursuant to an order of the Judicial Panel on Multidistrict Litigation. See Letter from Multidistrict Litigation Panel to Clerk of the Eastern District of New York, No. 04-MD-1596 (Apr. 14, 2004). In addition, there are pending in state courts a considerable number of related cases. See In re Zyprexa Prods. Liab. Litig., No. 04-MD-1596, 2007 WL 160923 (E.D.N.Y. Jan. 18, 2007) (“Memorandum on Cooperation Between Federal and State Judges”). B. Protective Order, Case Management Order No. S To facilitate prompt discovery in these cases, a protective order agreed to and submitted by the parties was issued in August 2004 pursuant to Rule 26(c) of the Federal Rules of Civil Procedure. See In re Zyprexa Prods. Liab. Litig., No. 04-MD-1596, 2004 WL 3520247, *1 (E.D.N.Y. Aug. 9, 2004) (stating purposes of protective order are “[t]o expedite the flow of discovery material, facilitate the prompt resolution of disputes over confidentiality, adequately protect confidential material, and ensure that protection is afforded only to material so entitled ... ”). Preventing disclosures of documents served the added purpose of protecting a vulnerable plaintiff patient population and avoiding prejudice of potential jurors in any jury trial. See Tr. of Hr’g on Application to Issue CMO-3 (July 2, 2004) (magistrate judge Chrein: “material that might be misunderstood by the lay reader ... might do some harm or prejudge a case that is still pending”). CMO-3 was signed by both the district judge and magistrate judge. The protective order permits parties to designate as “confidential” materials produced in discovery that the producing party believes in good faith are properly protected under Rule 26(c)(7) of the Federal Rules of Civil Procedure. CMO-3 at ¶ 3. All confidential documents are required to be stamped, “Zyprexa MDL 1596: Confidential-Subject to Protective Order.” Id. at ¶ 4(b). Once a document is so marked, it “shall be used by the receiving party solely for the prosecution or defense of this Litigation, to the extent reasonably necessary to accomplish the purpose for which disclosure is made.” Id. at ¶ 2. Except with the prior written consent of the producing party, or in circumstances described in paragraphs 6 and 14 of CMO-3, “no [c]onfidential [discovery [materials, or any portion thereof, may be disclosed to any person.” Id. at ¶ 5. Parties are permitted to share confidential materials with “outside consultants or outside experts retained for the purpose of assisting counsel in the Litigation.” Id. at ¶ 6(i). An expert to whom disclosure is made must “sign, prior to such disclosure, a copy of the Endorsement of Protective Order, attached as Exhibit A” to CMO-3. Id. at ¶ 6(m). Should a court or administrative agency subpoena the confidential discovery materials, CMO-3 provides a specific procedure for the subpoenaed person to follow: [T]he person to whom the subpoena ... is directed shall promptly notify the designating party in writing of all of the following: (1) the discovery materials that are requested for production in the subpoena; (2) the date on which compliance with the subpoena is requested; (3) the location at which compliance with the subpoena is requested; (4) the identity of the party serving the subpoena; and (5) the case name, jurisdiction and index ... number or other designation identifying the litigation ... in which the subpoena ... has been issued. In no event shall confidential documents be produced prior to the receipt of written notice by the designating party and a reasonable opportunity to object. Furthermore, the person receiving the subpoena or other process shall cooperate with the producing party in any proceeding relating thereto. CMO-3 at ¶ 14 (emphasis supplied). Paragraph 6 of CMO-3 describes thirteen situations, apart from the issuance of a subpoena, where confidential documents may be disclosed to listed persons. When the person receiving the confidential materials is a customer or competitor of the producing party, “the party wishing to make such disclosure shall give at least three (3) business days advance notice in writing to the counsel who designated such discovery materials as Confidential.” Id. at ¶ 6. The terms “customer” and “competitor” are defined by the order. Id. The designation of particular discovery material as confidential does not require that it permanently remain subject to the protections of CMO-3. Rather, any party or aggrieved entity (even if not a party) can petition the court for declassification of confidential discovery materials at any time. If at any time a party (or aggrieved entity permitted by the Court to intervene for such purpose) wishes for any reason to dispute a designation of discovery materials as Confidential made hereunder, such person shall notify the designating party of such dispute in writing, specifying by exact Bates number(s) the discovery materials in dispute. The designating party shall respond within 20 days of receiving this notification. If the parties are unable to amicably resolve the dispute, the proponent of confidentiality may apply by motion to the Court for a ruling that discovery materials stamped as Confidential are entitled to such status and protection under Rule 26 of the Federal Rules of Civil Procedure and this Order, provided that such motion is made within forty five (45) days from the date the challenger of the confidential designation challenges the designation or such other time period as the parties may agree. The designating party shall have the burden of proof on such motion to establish the propriety of its Confidential designation. If the time for filing a motion ... has expired without the filing of any such motion, or ten (10) business days (or such longer time as ordered by this Court) have elapsed after the appeal period for an order of this Court that the discovery material shall not be entitled to Confidential status, the Confidential Discovery Material shall lose its designation. CMO-3 at ¶ 9(b) — 9(d). A petition for wholesale modification of the protective order is expressly permitted: “Nothing in this Order shall prevent any pai.ty or other person from seeking modification of this Order or from objecting to discovery that it believes to be otherwise improper.” Id. at ¶ 16. C. Agreement by Egilman to be Bound by Protective Order In August of 2006, The Lanier Law Firm (“Lanier”), representing plaintiffs in this litigation, began consulting with Dr. David Egilman, M.D., M.P.H. Aff. of Richard D. Meadow at ¶ 3 (January 2, 2007) (“Meadow Aff.”). Lanier decided in October of 2006 that Egilman’s active involvement would assist plaintiffs. Before granting Egilman electronic access to the document depository maintained by the PSC, the firm asked him-to sign the “Endorsement of Protective Order” attached to CMO-3. Id at ¶¶ 4-5. On November 10, 2006, Egilman signed the protective order after making numerous deletions and edits to its text. The following line had been crossed out by him: “I also understand that my execution of this Endorsement of Protective Order, indicating my agreement to be bound by the Order, is a prerequisite to my review of any information or documents designated as Confidential pursuant to the Order.” After the sentence reading “I further agree that I shall not disclose to others, except in accord with the Order, any Confidential Discovery Materials, in any form whatsoever, and that such Confidential Discovery Materials and the information contained therein may be used only for the purposes authorized by the Order,” he added the words “unless release is needed to protect public health.” Tr. of Hr’g on Preliminary Injunction at 203 (January 16-17, 2007) (“Tr.”). Lanier immediately informed Egilman that his amendments to the executed protective order were unacceptable, and that he was required to sign an unamended copy of the order if he wished to gain access to the confidential discovery documents. Id. at 205; Meadow Aff. at ¶ 6. On November 14, 2006 Egilman signed a fresh Endorsement of Protective Order. The order was unedited except for the addition of a clause after the line beginning “I further agree that I shall not disclose to others ... ”, reading “unless this conflicts with any other sworn statements.” When questioned by Richard Meadow of the La-nier Law Firm about why the addition of this clause was made, Dr. Egilman explained that if he were to be subpoenaed by the FDA or Congress, he wanted to ensure that the Protective Order would not preclude providing testimony concerning Zyprexa. Since that explanation did not conflict with my [Meadow’s] understanding of the purposes behind the Protective Order, nor did it conflict with my understanding that the Protective Order would not — in any event— have precluded such testimony by Dr. Egilman, and because Dr. Egilman assured me that he understood the Protective Order, [the Lanier Law Firm] accepted this Protective Order [signed by Egilman], Id. at ¶ 7; see also Tr. at 208, 221-22. Lanier did not inform Lilly about the addition Egilman made. Id. at 207. After he executed the Endorsement of Protective Order, Egilman was given access to the PSC-maintained database of materials produced in discovery. The confidential materials maintained in that database were stamped, as already noted, “Zy-prexa MDL 1596: Confidential-Subject to Protective Order.” See CMO-3 at ¶ 4(b). D. Conspiracy of Berenson, Egilman, and Gottstein About the time that Egilman was retained as a plaintiffs’ expert in the Zy-prexa litigation, he began discussing Zy-prexa with New York Times reporter Alex Berenson. Berenson wanted to review the confidential Zyprexa documents, which he knew were subject to this court’s protective order. The two conferred about the possibility of obtaining the protected documents by subpoena. Neither Berenson nor Egilman were aware of any pending case where the Zy-prexa documents were likely to be subpoenaed. To circumvent this barrier, Beren-son suggested that Egilman contact James Gottstein, an attorney in Alaska who heads the Law Project for Psychiatric Rights (“PsychRights”). Tr. at 94-97. Gottstein had spoken to Berenson in the past about drug-related news items. Id. at 95. Based on these conversations, Berenson believed that Gottstein would be a willing ally in an attempt to avoid the court’s protective order by finding a case which could be used as a pretense for subpoenaing the protected documents. Id. at 96 (Gottstein: “[Berenson] said that Dr. Egil-man had some documents that he wanted to get to the New York Times and that [Berenson] had, you know, thought that I might be someone who would subpoena them.”). But cf. Tom Zeller, Jr., Documents Borne by Winds of Free Speech, N.Y. Times, Jan. 15, 2007 (“[Gottstein] somehow got wind (and precisely how is the subject of separate legal jujitsu) that Dr. Egilman had some interesting documents .... Mr. Gottstein was also apparently in a sharing mood, which is how hundreds of pages ended up with a Times reporter, Alex Berenson.”). On November 28, 2006, Egilman called Gottstein. See Tr. at 23. After telling Gottstein that Berenson had suggested that Egilman contact him, Egilman indicated that he had access to confidential Lilly documents pertaining to Zyprexa, and was in possession of those documents subject to a protective order that precluded him from disseminating them. Q: [Y]our understanding based on your conversation with Dr. [Egilman] was that he called you so that you could assist him in disseminating the documents that were subject to a protective order, right? [Mr. Gottstein]: I think that is probably correct. Id. at 24-26. E. Subpoenas Issued by Gottstein Egilman informed Gottstein that under the terms of the protective order the documents could be produced pursuant to a subpoena if certain procedures were followed including notifying Lilly. Id. at 24-30, 73-74 (Gottstein: “[Egilman] suggested that I subpoena [the documents].... I think because he thought they should become public”). Gottstein asked Egilman to send him a copy of the protective order, but according to Gottstein, “[Egilman] said I didn’t want it and I didn’t push it.... My kind of sense of [Egilman’s reasoning] was that if I didn’t have it, then I wouldn’t be charged with the knowledge of it.” Id. at 27-28. Gottstein was not involved in any litigation in which it would have been appropriate to subpoena the Zyprexa documents. Id. at 31-32, 76. He told Egilman, however, that he would try to find a case in which it would be possible to justify a subpoena directed to Dr. Egilman. On December 5, 2006, Gottstein filed intervention papers in a proceeding where the public guardian, the Alaska Office of Public Advocacy, had been granted guardianship over an individual, including the power to approve administration of psychotropic medications; the administration of Zy-prexa was not at issue. Id. at 33. Pursuant to Gottstein’s request, the Alaska superior court ministerially and ex parte issued a deposition subpoena in the guardianship proceeding on December 6, 2006 to Egilman requiring him to participate in a telephonic deposition on December 20, 2006 and “bring with him” all documents in his possession relating to fifteen drugs, including Zyprexa. Id. at 34-35. Egilman faxed a copy of this subpoena to Lilly’s General Counsel on December 6, 2006. He did not notify the Lanier Law Firm, which had retained him as an expert, about the subpoena. On December 11, 2006, Gottstein — ex parte and without notice to Lilly — procured an “amended subpoena” that required Dr. Egilman to deliver the documents to Mr. Gottstein “prior to” his deposition on December 20, 2006. Gott-stein emailed a copy of the second subpoena to Dr. Egilman, asking him to “please deliver the subpoena’d [sic] materials to me as soon as you can”. Neither Egilman nor Gottstein informed Lilly, or Lanier, about the second subpoena or the revised earlier production date. Q: [Y]ou had told Dr. [Egilman] repeatedly that he should send the second subpoena to Lilly, correct? [Mr. Gottstein]: Yes. Q: And you knew he planned not to send it to Lilly, correct? [Mr. Gottstein]: Yeah, I think — he told me he didn’t see that it made any difference. Q: And you decided that it was not important for you to send the subpoena to Lilly either, correct? [Mr. Gottstein]: My ... position is that it was his responsibility under the CMO and not mine. Id. at 43-44. The excuse offered to justify the issuance of the second “forthwith” subpoena— that Gottstein needed to study the documents before the telephonic appearance of Egilman took place — was a subterfuge. Tr. at 47-48. Gottstein and Egilman deliberately misled Lilly and violated the terms of CMO-3 by not informing Lilly about the second subpoena. Gottstein attempted to justify his pretense as follows: Q: You moved the date of the production of documents up, correct? [Gottstein]: Well, I mean, what it said was — it’s like I put in the Email, it didn’t make any sense for him to bring the documents with him in Attelboro, Massachusetts for me to try to examine them in Anchorage, Alaska. So I had an amended one that said to give it to me prior to the deposition and [to] give it to me as soon as he could so I would have a chance to review them before the deposition. Q: When you issued the subpoena ... you ... said you needed the subpoena ... so that you could review the documents in advance of [Egilman’s] deposition, correct? [Gottstein]: Yes. Q: And instead of reviewing the documents you start making copies of them as soon as you received them, correct? [Gottstein]: Yes. Q: And you proceeded to make copies for the next two days and send them out to the people on your and [Egilman’s] list, correct? [Gottstein]: I made two batches. Q: This is the question I want to make clear. You were so busy [making] copies of these documents that you never got to review them, did you? [Gottstein]: I looked at some of them. The deposition was quite — a few days off which is, I think, your complaint. So I would pull up some of them and look at them and I — -and it wasn’t that I was so busy making copies. I had my laptop burning DVDs and my main computer burning DVDs, another laptop.... Id. at 42-43, 47-48. F. Response to the Subpoenas On December 13, 2006, Lilly contacted the Lanier Law Firm to discuss the first subpoena issued to Dr. Egilman, the only subpoena about which Lilly had been informed.' Upon ascertaining that Lilly intended to file a motion to quash that subpoena in the Alaska Superior Court, Richard Meadow of the Lanier Firm spoke to Egilman and instructed him “not to do anything” in response to the subpoena until Lilly had a chance to address the Alaska court. Egilman agreed, see Meadow Aff. at ¶ 9, although he had already begun the transfer to Gottstein. See Part II.E, supra. The next day, December 14, 2006, Lilly sent a letter to Egilman and Gottstein, asking “Dr. Egilman to refrain from producing [the confidential documents] and Mr. Gottstein to refrain from further seeking production of the materials unless and until the Superior Court [of Alaska] rules that production is required.” Egilman, as a signatory to the protective order, was further asked to confirm to Lilly that he would refrain from producing the materials. Unbeknownst to Lilly or Lanier, Egil-man had already begun transferring the documents to Gottstein on December 12, 2006, supposedly pursuant to the second subpoena, immediately after that subpoena was issued. In response to Lilly’s letter of December 14th, Egilman wrote to Lilly’s counsel that he had already produced the confidential documents that were subject to the subpoena. Egilman stated his view that he had given Lilly a “reasonable opportunity to respond” to the subpoena as required by CMO-3, and was therefore not in violation of his obligations when he produced the documents six days (out of which three were business days) after he had received the first subpoena. He did not address the question of why he never notified Lilly about the second subpoena with its revised production date. On December 15, 2006, after learning that Egilman had produced the documents to Gottstein pursuant to a second subpoena about which Lilly had never been informed, Lilly wrote to Gottstein, asking him to (1) identify the protected materials in his possession and return them to Lilly, (2) refrain from further publishing or publicizing the protected materials, (3) request the return of the materials from anyone to whom he had sent them, and (4) identify those individuals to whom he had sent protected materials. G. Discharge of Egilman by Lanier As soon as Lanier learned of Egilman’s disclosure of the confidential documents to Gottstein, the firm demanded that Egil-man return all Zyprexa-related documents in his possession. It terminated his consultancy. Id. at ¶ 11; Tr. at 200. H. Dissemination of the Documents Pursuant to Conspiracy I. Acts of Conspirators During their initial conversation in November 2006, Egilman told Gottstein that when he eventually received the documents — pursuant to a yet-to-be-procured subpoena issued in a yet-to-be-determined case — he should pass them along to certain individuals. That group included Beren-son of the New York Times, Steve Cha from the United States House of Representatives Committee on Government Reform, United States Senate staffer Amelia Desanto, and Snighda Prakash of National Public Radio. Id. at 35-37. Q: Dr. Egilman understood that once [the documents] were subpoenaed, that you were going to disseminate them to the individuals that you later certified as having disseminated them to? [Mr. Gottstein]: Yes ... Q: Did he share with you anybody that he would like to have them disseminated with? [Mr. Gottstein]: Yes. Id. at 35-36. As soon Egilman started electronically transferring the documents to Gottstein via Gottstein’s file transfer protocol (“FTP”) server on December 12, 2006, Gottstein began sending them to individuals to whom he thought they would be of interest. He had spoken with some of these people beforehand to inform them that an arrangement to obtain and publish confidential Lilly documents was underway. Id. at 57 (Gottstein: “Some people knew [the documents] were coming”). That group included Berenson, Steve Cha, Vera Sharav, Will Hall, and Robert Whitaker. Id. at 93. On December 12th, 13th, and 14th, Gott-stein provided DVDs containing the documents to Berenson, as well as Dr. Peter Breggin, Steve Cha, Judi Chamberlin, Dr. David Cohen, Terri Gottstein, Will Hall, Dr. Grace Jackson, Dr. Stephen Kruszew-ski, Snigdha Prakash, Vera Sharav, Robert Whitaker, Bruce Whittington, James Winchester, and Laura Ziegler. Id. at 47-48. Q: [Y]ou were anxious to get [the documents] out as quickly as you could, right? [Mr. Gottstein]: Anxious, yes, I thought it would be good to get them out. Q: Before the Court could enter an order telling you you shouldn’t? [Mr. Gottstein]: Well, I don’t know. I mean I guess.... I knew that Eli Lilly would want to try to stop it. Q: Right, and you wanted to get them out as quickly as you could to make that harder? [Mr. Gottstein]: Well, I would say yeah, I wanted to get them out [in a] way that would make it impossible to get them back. Id. at 48-49. To simplify and hasten co-conspirator Berenson’s review and use of the documents, Gottstein had provided Berenson with a password to Gottstein’s personal FTP server on which he had electronically posted the documents. Gottstein and Berenson spoke to each other repeatedly during the week of December 12th. Id. at 99. Berenson urged Gottstein not to send the documents to any news or media outlets, because he wanted to ensure that the New York Times would have a “scoop” on the story. Id. at 82-83. He threatened that the Times would not write about the Zyprexa documents if any news organization published a story based on them before the Times printed its first article. Id. at 83 (Gottstein: “[Berenson] said basically that if anybody else breaks it, they are not going to run the story.”). Because he wanted a newspaper with an outstanding national reputation such as the New York Times to publish the documents, Gottstein acceded to Berenson’s request. Id. at 82-83 (Gottstein: “[T]here were other news outlets that I was going to send them to. And I ended up not doing that .... [t]o accommodate the New York Times’s desire to break the story.”). Egilman agreed with the decision to refrain from sending the documents to any other news organizations until Berenson was able to break the story. Id. at 83. 2. Protectable Distributed Documents The court has examined a sampling of the documents distributed by the conspirators. It has viewed portions of the materials returned to the Special Master for Discovery, Peter Woodin, pursuant to his and the court’s orders. Among them are a substantial number whose publication would be annoying, embarrassing, oppressive, and burdensome to Lilly; they reveal trade secrets, confidential preliminary research, development ideas, commercial information, product planning, and employee training techniques. See also, e.g., Alex Berenson, Eli Lilly Said to Play Down Risk of Top Pill, N.Y. Times, Dec. 17, 2006, at A1; Alex Berenson, Drug Files Show Maker Promoted Unapproved Use, N.Y. Times, Dec. 18, 2006, at A1; Editorial, Playing Down the Risks of a Drug, N.Y. Times, Dec. 19, 2006; Alex Berenson, Disparity Emerges in Lilly Data on Schizophrenia Drug, N.Y. Times, Dec. 21, 2006, at A1. These documents are covered by CMO-3. They are included within the kind of documents protectable under Rule 26(c) of the Federal Rules of Civil Procedure. See Part IV.A, infra. A small portion of the documents disseminated have been, or may be, declassified under CMO-3. Lilly has taken steps towards declassifying them. See Pet’r Br. at 12 n.10 (“Prior to this dispute, Lilly had de-designated following [sic] bates ranges, each of which is among those at issue here: [listing bates ranges]”). I. Attempts by Special Master Woodin to Retrieve Documents On December 15, 2006, Lilly informed the Special Master for Discovery, Peter Woodin, that confidential documents subject to CMO-3’s protection had been disseminated pursuant to a subpoena of which Lilly had never been notified. Lilly and the PSC jointly requested that the Special Master issue an order requiring return to him by Gottstein of the confidential documents. After trying unsuccessfully to reach Gottstein by telephone, Special Master Woodin issued the order requested by the parties. A copy of that order was emailed to Gottstein by the Special Master. Upon receiving it, Gottstein replied that he had voluntarily ceased disseminating the documents after reading Lilly’s faxed letter of December 15th. See Part II.F, supra. He objected to the ex parte nature of the order, and questioned both this court’s jurisdiction over him and Special Master Woodin’s authority to issue such an order. Gottstein informed Berenson about the Special Master’s order, but made no further efforts to comply with its terms. Tr. at 100. J. Publication by N.Y. Times On December 17, 2006, the New York Times began publishing front page articles under Berenson’s byline about information contained in the confidential Lilly documents. See Alex Berenson, Eli Lilly Said to Play Down Risk of Top Pill, N.Y. Times, Dec. 17, 2006, at A1; Alex Berenson, Drug Files Show Maker Promoted Unapproved Use, N.Y. Times, Dec. 18, 2006, at A1; Alex Berenson, Disparity Emerges in Lilly Data on Schizophrenia Drug, N.Y. Times, Dec. 21, 2006, at A1; see also Editorial, Playing Down the Risks of a Drug, N.Y. Times, Dec. 19, 2006; Julie Creswell, Court Orders Lawyer to Return Documents About an Eli Lilly Drug, N.Y. Times, Dec. 20, 2006. K. Formal Court Intervention Since Gottstein had not complied with Special Master Woodin’s order by December 18th — although Gottstein had provided a lengthy response to the order detailing some of the facts of his collaboration with Egilman and suggesting jurisdictional objections — Lilly and the PSC jointly petitioned the court for an injunction requiring Gottstein to return the documents. 1. Argument Before Magistrate Judge Mann The parties first sought an injunction from magistrate judge Mann. At the hearing the magistrate judge made the following comment: I think that what happened here was an intentional violation of Judge Wein-stein’s orders. I think it was inappropriate .... I personally [as a magistrate judge, without authority to grant injunctive relief] am not in a position to order you [Gottstein] to return the documents. I can’t make you return [the documents], but I can make you wish you had because I think this is highly improper not only to have obtained the documents on short notice without Lilly being advised of the amendment but then to disseminate them publicly before it could be litigated. It certainly smacks [of] bad faith. Tr. of Hr’g on Preliminary Injunction at 10 (Dec. 18, 2006). 2. Temporary Restraining Order by Judge Cogan On the basis of Judge Mann’s findings, the parties brought their request for an injunction on December 18th to Judge Co-gan, who, as emergency judge, acted in the absence of Judge Weinstein. After hearing from Lilly, the PSC, and Gottstein through his counsel, Judge Cogan issued a temporary restraining order based upon his finding that “Mr. Gottstein has deliberately and knowingly aided and abetted Dr. David Egilman’s breach of CMO-3”. See In re Zyprexa Prods. Liab. Litig., No. 04-MD-1596, 2006 WL 3877528, *1 (E.D.N.Y. Dec. 19, 2006). Judge Cogan declared: I think it’s clear not only that the facts are as stated in the Magistrate’s report and recommendation, but I can tell from the December 17th draft letter from Mr. Gottstein that he was aware that these documents were restricted, and that he undertook procedures to help the expert ], Mr. Egilman, try to circumvent the restrictions that were on him. He deliberately aided and abetted Dr. Egil-man in getting these documents released from the restriction that they were under, under the . protective order. He knew what he was doing, and he did it deliberately. Those are my findings, and it’s on that basis that I grant the relief. Tr. of Hr’g on Preliminary Injunction at 19-20 (Dec. 18, 2006). Gottstein was ordered not to further disseminate the documents; to return them to Special Master Woodin; to provide a list of all individuals and organizations to whom he had sent them; to identify to Special Master Woodin which of the confidential documents he passed on to other individuals; to take steps to retrieve them; and to preserve all communications relating to them or Egilman. In re Zyprexa, supra, 2006 WL 3877528. Over the next few days, Gottstein took steps to comply with the terms of the court’s order. He emailed or called each of the people to whom he had sent the documents informing them of the court order and asking that the documents be returned to Special Master Woodin. Tr. at 101-02. Those individuals included: Dr. Peter Breggin, Steve Cha, Judi Cham-berlin (of MindFreedom International), Dr. David Cohen, Terri Gottstein, Will Hall, Dr. Grace Jackson, Dr. Stephen Kruszew-ski, Snigdha Prakash, Vera Sharav (of the Alliance for Human Research Protection), Robert Whitaker, Bruce Whittington, James Winchester, and Laura Ziegler. See Part II.H.l, supra. On December 21, 2006, Gottstein issued a written certification stating he had complied with the terms of Judge Cogan’s injunction. Dr. Peter Breggin, Dr. Grace Jackson, Dr. Stephen Kruszewski, Bruce Whittington, Laura Ziegler, and the House Committee on Government Reform (through Congressman Henry Waxman, for Steve Cha) returned the documents they had received from Gottstein to Special Master Woodin. See Letter of Rep. Henry A. Waxman (Dec. 21, 2006); Letter of Special Master Woodin (Feb. 1, 2007). Gottstein also retrieved the copies he had given to Terri Gottstein, Jerry Winchester, and Will Hall and sent them to the Special Master. See id. Berenson, Dr. David Cohen, Judi Chamberlin, Vera Sharav, Robert Whitaker, and Snighda Prakash have not returned their copies of the confidential documents. At the court’s direction, Ms. Sharav gave her attorney the DVDs containing her copies of the documents to be held in escrow. Tr. at 194; see Part IV.H.8, infra. 3. Order to Show Cause for Deposition of Egilman by Judge Weinstein On December 26, 2006, Lilly petitioned for an order requiring Egilman to show cause why he should not submit to a deposition and produce documents relating to his possession and dissemination of the confidential Zyprexa documents. A hearing was held on December 28, 2006 by Judge Weinstein at which Egilman was ordered to be deposed within five days and to produce the requested documents. Egilman began producing documents to Lilly on January 1, 2007. An as-yet-unresolved question is whether this production has been complete. Egilman has invoked what he claims to be a Fifth Amendment privilege against self-incrimination. See Letter of Edward W. Hayes (Jan. 23, 2007). He has neither been deposed nor testified in court. Ip. Evasive Actions of Enjoined Persons Individuals to whom Gottstein sent the documents began devising schemes to evade court orders to return the documents even before any such orders had been issued. In an email dated December 16, 2006, Robert Whitaker wrote to Gott-stein: “I would consider building a website that would, ahem, make all the documents available. What could they do to me? And how could they know how the documents got to me? There are several channels apparently that could be the source. You should proceed now in whatever way makes it easiest for you, and let others worry about getting this information out or making it public.” Pet’r Findings of Fact, supporting ex. 30. On December 29, 2006, Lilly learned that despite Gottstein’s communication of the court’s order requesting the documents’ return by those to whom Gottstein had sent them, some recipients had declined to comply and were attempting to widely distribute the documents. In particular, MindFreedom, an organization whose board of directors includes Judi Chamberlin, Tr. at 236, to whom Gottstein had sent the documents in his attempt to “get [the documents] out [in a] way that would make it impossible to get them back,” id. at 49, was attempting widespread dissemination. David Oaks, the Director of MindFreedom, sent an email alert to the organization’s members informing them of a “grassroots internet campaign” to disseminate the documents. See Pet’r Findings of Fact, supporting ex. 24. The email, which included a link to a website from which the documents could be downloaded, was sent on December 25, 2006. According to this message, the organization was “counting on the fact that many courts are closed today.” Id. Eric Whalen, a member of MindFreedom, made the documents available for downloading at the website www. joysoup.net. Tr. at 229. After the preliminary injunction was issued on December 29, 2006, several of the enjoined persons continued their efforts to ensure that the documents remained publicly accessible. In an email exchange on January 2, 2007 among Robert Whitaker, Vera Sharav, Will Hall, David Oaks, and Gottstein, Whitaker offered his gratitude to those who had helped disseminate the documents notwithstanding court orders prohibiting them from doing so: “[K]udos should go to others who have helped get this information out - Will Hall, David Oaks, Vera Sharav, MindFreedom. This is a fight very much worth fighting.” See Pet’r Findings of Fact, supporting ex. 28. Sharav responded, “It’s important to keep track of where/when the documents may surface again on cyberspace and let people know.” Id. (emphasis supplied). Will Hall added, “what a great new years gift ... massive eli-lilly psych drug scandal.” Id. 5. Preliminary Injunction by Judge Cogan Lilly and the PSC jointly applied for an injunction ordering the people who had received the documents directly from the conspirators (omitting, however, Berenson and the New York Times) to refrain from disseminating them. On December 29th, a preliminary injunction was issued by Judge Cogan barring Terri Gottstein, Jerry Winchester, Dr. Peter Breggin, Dr. Grace Jackson, Dr. David Cohen, Bruce Whittington, Dr. Stephen Kruszewski, Laura Ziegler, Judi Chamberlin, Vera Sha-rav, Robert Whitaker, and Will Hall from disseminating the documents, requiring that they remove the documents from any website to which they had posted them, and instructing them to communicate the terms of the order to anyone to whom they had sent the documents. In re Zyprexa Prods. Liab. Litig., No. 04-MD-1596, 2006 WL 3923180, *1 (E.D.N.Y. Dec. 29, 2006). After receiving notice of the injunction, Vera Sharav put the following message on AHRP’s website: See the court injunction several of us received below but the internet is an uncontrolled information highway. You never know where and when the court’s suppressed documents might surface. The documents appear to