Is anyone surprised that The New York Times won’t send its reporter to appear before U.S. District Court Judge Jack Weinstein? They sent him a polite letter. You’ll recall that Weinstein is probing what he calls a “conspiracy” to leak sealed documents in the Zyprexa litigation, which Bill Childs has been chronicling on his Torts Prof blog.

These documents allegedly revealed that Eli Lilly hid safety data and improperly marketed its schizophrenia drug to doctors. Alex Berenson, a Times reporter, wrote a series of stories in December after obtaining the documents. Weinstein is steamed the documents were provided by a lawyer in Alaska, who prior to publication, spoke with Berenson and David Egilman, who had been an expert witness for plaintiffs’ lawyers until Weinstein got upset.

A key issue, meanwhile, is an ongoing battle now before Weinstein over Lilly’s insistence that the documents, which were marked confidential, remain that way. Consumer groups cry foul. This has yet to be decided.

While Weinstein ponders this problem, what should he do about The Times?[tags]David Egilman, Eli Lilly, The New York Times, Zyprexa[/tags]