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MORE LIGGETT DOCUMENTS NOW REVEALED [08.8.1]
Read What the Judge Ruled, Then See The Docs Themselves
A Florida judge has just ruled that even more previously-secret tobacco industry documents must be revealed to the public because -- contrary to the tobacco industry's claims -- they are not protected by the attorney-client privilege.
Below is a complete copy of the judge's most recent decision, followed by excerpts from the documents.
To see the documents themselves, check out the following web site:http://stic.neu.edu/FL/Ligettdocs/FLligget.htm
COPY OF JUDGE'S DECISION
EXCERPTS FROM DOCUMENTS
IN THE CIRCUIT COURT, FIFTEENTH JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA
CIVIL DIVISION
Case No: CL 95-1466 AH
STATE OF FLORIDA, et al.
Plaintiffs,
vs.
AMERICAN TOBACCO COMPANY, et al.
Defendants,
REPORT AND RECOMMENDATION OF SPECIAL MASTER
THIS MATTER came before the undersigned Special Master for hearing on April 21, 1997 as a result of Plaintiffs' March 21, 1997 Motion to Compel Production by Defendant, Tobacco Institute of Certain Documents Relating to Defendant, Tobacco Institute's Youth Programs Being Withheld Under Claims of Attorney-Client Privilege. After having considered argument of counsel, the motion and exhibits attached thereto and having reviewed in-camera the documents which are the subject matter of the motion, the following Report and Recommendation is hereby submitted:
Plaintiffs' argument was two-fold. First, Plaintiffs argue that because the avowed purpose of the Tobacco Institute was public relations and lobbying, the documents therefore do not involve attorneys rendering legal advice, but rather involve lawyers in lobbying, public relations and general business activities. Second, Plaintiffs argue that if some of the documents actually contain legal opinions of counsel in connection with litigation, then the crime-fraud exception applies. Plaintiffs' argument here is that the Tobacco Institute sought to portray a public position that was contrary to the individual defendant tobacco companies' private, internal position. More specifically, Plaintiffs argue ( and attached persuasive exhibits to its motion) that the Tobacco Institute sought to create a public perception of not wanting youth to smoke in order to:
1. obtain a public relations benefit, and
2. to prevent or delay further regulation of the tobacco industry, while at the same time individual industry members were internally writing such things as:
" . . .the base of our business is the high school student." [Ex. D to Plaintiffs' motion]
"RJR must soon establish a successful new brand in this market. . . ."[14 to 18 year old grout] " . . . if our position in the industry is to be maintained over the long term." [Ex. E to Plaintiffs' motion]
"realistically, if our company is to survive and prosper over the long term, we must get our share of the youth market."[EX F. to Plaintiffs' motion]
"It is important to know as much as possible about teenage smoking patterns and attitudes. Today's teenager is tomorrow's potential regular customer, and the overwhelming majority of smokers first begin to smoke while still in their teens. . . The smoking patterns of teenagers are particularly important to Philip Morris {EX. H to Plaintiffs' motions]
"Raising the legal minimum age for a cigarette purchaser to 21 could gut our key young adult market (17-20) where we sell about 25 billion cigarettes and enjoy a 70% market share." [Ex. EE to Plaintiffs' motion]
"One of the reasons for adolescent attraction to smoking is curiosity about the physical reactions of it. The more reasons for its attraction are the 'forbidden fruits' aspects of cigarettes. The adolescent seeks to display his new urge for independence with a symbol and cigarettes are such a symbol since they are associated with adulthood and at the same time adults seek to deny them to the young . . Serious efforts to learn to smoke occur between the ages of 12 and 13 in most case[s]. . ." [Ex. GG to Plaintiffs' motion]
Plaintiffs argue that with this background, the Tobacco Institute youth campaign actually sought to capitalize on the adolescents; desire to become an adult and do grown up things and that the Tobacco Institute campaign was nothing more than a "beau geste". . .a ". . . media event which in itself promises a lot, but produces little" in the words of Exhibits S and U.
A majority of the documents reviewed did not involve attorneys rendering legal services to the Tobacco Institute and/or were truly prepared in anticipation of litigation, but to the contrary, involved lawyers engaged in lobbying, public relations and the general business activities of the Tobacco Institute. (See Tobacco Institute's Privilege Log)
A lesser number of documents did qualify as involving attorneys rendering legal services. Pursuant to the applicable standards set forth in U.S. v. Zolin, 491 U.S. 554, 109 S. Ct. 2619 (1989), Haines v. Liggett, 975 F. 2d 811 (3rd Cir. 1992), and In re: A.H. Robins Co., Inc. "Dalkon Shield" IUD Products Liability Litigation, 107 F.R.D. 2 (D Kan. 1985), the evidence before me and the factual findings of the undersigned in previous Reports and Recommendations on the issue of crime-fraud, it is determined that the documents as set forth in Tobacco Institute's Privilege Log attached hereto relate to and are involved with the ongoing crime-fraud.
As I have found in previous Report and Recommendations, there is evidence that the Defendants utilized attorneys in carrying out and planning fraudulent activities and undertook to misuse the attorney/client relationship to keep secret research and other activities related to the true health dangers of smoking. I further find there is sufficient credible evidence that such activities extended to attorney involvement with the Tobacco Institute in its youth programs, which Plaintiffs argue was undertaken with improper motives for improper purposes.
It should be cautioned that this recommendation concerning the crime-fraud exception to the attorney/client privilege is not an adjudication on the merits, but rather a recommendation that there is sufficient evidence for a jury to consider and determine whether the Defendants engaged in a crime-fraud and whether prior tobacco industry lawyers were involved in such fraudulent activity.
Dated this 1st day of August, 1997
/s/ R. William Rutter Jr. SPECIAL MASTER
EXCERPTS
By Stephen Rothman
WEST PALM BEACH, Fla., Aug 6 (Reuter) - With little fanfare, tobacco companies Wednesday released copies of eight industry documents that Florida lawyers say will support allegations that the industry conspired to mislead the public about the dangers of smoking.
The state wants to use the documents as evidence in its $1 billion lawsuit against cigarette makers to recover the costs of treating people with smoking-related illnesses. Jury selection entered its fourth day Wednesday and testimony was expected to begin in early September.
The industry made the papers, known as the Liggett documents, public a day after the Fourth District Court of Appeal ordered their release.
One document indicated that industry officials had stymied an attempt by researchers to test cigarette ingredients for safety. Another cited dangers in conducting a public survey on the need for stronger package labelling in case it produced adverse results and fell into the wrong hands.
In making the 85 pages of documents public after Palm Beach County Circuit Court Judge Harold Cohen ordered their release, R.J. Reynolds Tobacco Co. attorney Bob Weber said the documents contained no ``scientific fact that is not already known to the public.''
Cohen ruled they contained information that a jury could conclude was evidence of a crime and therefore did not fall within the attorney-client protection rule.
In one document, a footnote to an R.J. Reynolds Tobacco Co. attorney/client strategy document noted that researchers wanted to test cigarette ingredients for safety but industry officials ``thwarted the industry scientists' desires to assure the safety of the product by testing ingredients adequately.''
In another document, an Arnold, Fortas & Porter law firm memorandum regarding a possible public survey to show no need for stronger labelling on cigarette packaging regarding the dangers of smoking, the writers concluded that was a bad idea.
If the survey produced adverse results, there was a danger that it could fall into the hands of the Federal Trade Commission, a congressional Committee or ``a plaintiff in pending cancer litigation,'' the document said
The firm suggested survey results should be kept in its files. ``If the returns were unfavorable, they could be destroyed and there would be no record in any office of the nature of the returns,'' the document said.
Weber said tobacco companies fought the release of the documents because of a 1985 federal law that allows companies to protect information regarding how a product is made, and the time-honored issue of attorney-client confidentiality.
``Apparently the tobacco cases are an exception to that rule,'' Weber said.
While tobacco companies made light of the documents, W.C. Gentry, an attorney for the state, said: ``We know from the Liggett attorneys that they are particularly germane to the crime/fraud issue.''
While the Liggett documents have been the focus of media attention, Gentry said the ``youth documents'' ordered released by Special Master William Rutter will be more damaging.
Rutter found that about 300 documents of the Tobacco Institute contain evidence of fraud by the industry. Tobacco companies were expected to stall the release of the documents just as they did with the Liggett papers, Gentry said.
``From the TI documents we already have, we know they are far more important,'' he said, explaining that the tobacco companies launched a campaign to create the perception they did not want children to smoke, when in fact they were doing the opposite behind the scenes.
``We expect the documents Rutter thinks should be released to us contain even more damning information,'' he said.
But Weber said the court's release of the documents, both those from Liggett and possibly the Tobacco Institute papers, does not mean the jury will ever see them. ``There is a question of relevance and that has not yet been established,'' Weber said.
In a statement, Philip Morris Cos. Inc. said it believed the Liggett documents did not ``remotely fit the description accorded them by the plaintiffs.
``Indeed, objective readers can now see for themselves that these documents are not even material to the case at hand, let alone evidence that could prove the state's case,'' the statement said.