Tobacco Firms Must Turn Over More Documents

A Minnesota state court judge said Friday that tobacco companies should not be allowed to conceal scientific research that they have touted in advertising campaigns but now want to keep secret. He ordered the companies to turn over thousands of documents within 15 days for an in-chambers review.

Judge Kenneth B. Fitzpatrick said that he had found that the defendants in Minnesota’s massive lawsuit against the tobacco industry “have claimed that safety-related scientific research” they conducted should be protected by the attorney-client privilege, a legal doctrine designed to foster candid communication between attorneys and their clients.

“At the same time,” he noted, “it is indisputable that the defendants have made public statements intended to minimize or reduce the fears that smoking is dangerous to one’s health.”

“This court does not believe that defendants should be permitted to use in its advertising and public relations campaign health-related research which supports their economic interests and to claim privilege for research which may lead to the opposite conclusion. . . .

“If the defendants had an obligation to disclose the hazards of tobacco products, and this court concludes that they did, their obligation to disclose cannot be eliminated by the assertion of attorney-client privilege,” Fitzpatrick said.

A key contention of Minnesota’s attorneys is that the tobacco companies have attempted to hide damaging internal documents about the health hazards of smoking by having scientific studies turned over to attorneys, thereby attempting to make them privileged. The companies have denied this allegation.

However, on Friday, Fitzpatrick ruled that Minnesota’s attorneys had made a threshold showing that they were entitled to see documents under an exception to the attorney-client privilege that comes into play when there has been an adequate showing that a crime or fraud may have been committed. The judge’s ruling cautioned that his order does not mean he has concluded that a crime or fraud was actually committed.

Minnesota Atty. Gen. Hubert H. Humphrey III said: “We’ve said from the outset that the tobacco industry has used law firms and lawyers to shield evidence. This is a monumental step in getting to the truth.” Thus far, the tobacco companies have turned in more than 30 million pages of documents in the Minnesota litigation. But they have claimed that they do not have to turn over an additional 150,000 documents (about 600,000 pages) because they are privileged.

Fitzpatrick said he would have a special master review batches of these documents before making a decision on which ones should be released. He said such a random review is necessary because it would be impossible to review each document in question without delaying for years the start of the trial, now scheduled to begin in January.

Fitzpatrick issued his order one day after issuing several other rulings critical of the tobacco companies in a case where Minnesota seeks to recover billions of dollars it spent treating ill smokers.

In one ruling, the judge said he found it disturbing that tobacco companies had failed to complete and produce document logs four months after document discovery in the case was supposed to be completed. He ordered the companies to turn over all the relevant logs within 30 days or face the penalty of losing their claims of privilege.

The judge also noted that the deposition of a Brown & Williamson Tobacco Corp. executive revealed that the company had failed to respond to questions about scientific research transferred to Shook, Hardy & Bacon, a Kansas City, Mo., law firm that has defended tobacco companies for years.

Fitzpatrick ordered Shook, Hardy to submit an affidavit describing what efforts it has made to find the relevant documents. A Shook, Hardy lawyer declined comment. A lawyer for the company did not return a call seeking comment.

The judge also noted that a Brown & Williamson lawyer had repeatedly instructed a company executive during a deposition not to answer questions about the company’s document production.

In addition, the judge ordered Brown & Williamson to turn over documents related to scientific research conducted by American Tobacco Co., which it acquired in 1995.