Protecting Documents From Discovery And Admission As Evidence

The documents include a great deal of material written by attorneys for B&W and BAT. These documents—consisting of letters, memoranda, and working papers—indicate that the attorneys for the two companies,

particularly those at B&W, took a very strong interest, and played an unusually active role, in the details of scientific research being conducted over the years into the health dangers of cigarettes. In the normal corporate environment, company scientists are responsible for conducting research dealing with a company's products; company attorneys confine their work to legal matters. Although attorneys are kept abreast of research results, they usually learn, after the fact, what the scientists have discovered. However, as the documents demonstrate, B&W's attorneys were thoroughly involved in planning, and in many cases directing, scientific research projects. Attorney control over company research apparently was deemed necessary to assert control over evidence produced within the company so that it could not be used to prove that the company's products were dangerous, even though the evidence developed by the company scientists clearly contradicted this view. The attorneys appeared particularly interested in preventing potentially damaging research results from being disclosed in litigation against the company, to the point of avoiding knowing the results at B&W of certain projects conducted by BAT {1132.01; 1824.03}.

The attorney documents raise a question of immense importance in litigation involving Brown and Williamson and the other tobacco companies: whether some of these documents, or similar documents not yet made public, might be protected under the "work product rule" or the attorney-client privilege from discovery or admission as evidence in lawsuits against the companies for fraudulently concealing the health dangers of tobacco from the public. (Discovery is the process by which a party to a lawsuit obtains information from the opposing party prior to trial in order to prepare for trial. It is generally permitted with respect to any matter that is relevant to the pending suit, but the court may refuse to allow discovery if, for instance, a document is protected under the work product rule or the attorney-client privilege.)

In at least three pending lawsuits against the major tobacco companies [Butler v Philip Morris , Civil Action No. 94-5-53, Cir. Ct., Jones County, Mississippi; Castano v American Tobacco Co. , No. 94-1044, United States District Court, Eastern District of Louisiana; and State of Florida v American Tobacco Company , Cir. Ct of 15th Judicial District for Palm Beach County, Florida, No. CL95-1466AO] in which the plaintiffs have sought to use the Brown and Williamson documents in evidence, the tobacco companies have claimed a right to exclude certain of the documents from evidence under the work product rule and the attorney-client privilege.

Work Product Rule

In 1947 the United States Supreme Court established the "work product rule" to protect the work of an attorney in preparing for litigation. Under this rule, when a court orders discovery of documents that have been prepared in anticipation of litigation or for trial by or for another party, the court is required to protect against disclosure the mental impressions, conclusions, opinions, or legal theories of an attorney of the party concerning the litigation [Hickman v Taylor 329 U.S. 495 (1947)]. The rule is codified in the Federal Rules of Civil Procedure, Rule 26(b)(3), and is followed in most, if not all, states.

However, the documents might be discoverable, and therefore admissible as evidence, under at least two theories, despite the work product rule. First, a "fraud exception" to the rule has been recognized in a number of cases. This exception provides that an attorney's mental impressions, conclusions, opinions, or legal theories may be discoverable if there is evidence indicating that the attorney was involved in, or had assisted a client in perpetrating, fraudulent or criminal activity ["Fraud Exception to Work Product Privilege in Federal Courts," 64 A.L.R. Fed. (American Law Reports Federal ) 470, § 2]. Thus, a document otherwise protected by the work product rule would be discoverable if, in the court's opinion, the document shows that the attorney who prepared the document was engaged in fraud or criminal conduct or was assisting a client in such conduct.

A strong case can be made that B&W concealed the health dangers of tobacco products from the company's customers and the general public. The documents clearly show that the attorneys and the company were well aware of many of the dangers of cigarettes, including addiction, at least thirty years ago, even though the company, to this day, continues to deny that cigarettes are either dangerous or addictive. As previously noted, the documents also demonstrate that the attorneys were thoroughly involved in planning, and in some cases directed, company scientific research projects. Apparently this was done to allow them to claim an attorney-client privilege covering the results of the research and shield the results from disclosure. Furthermore, as the documents reveal, on different occasions B&W attorneys specifically planned to have scientific research papers from BAT routed to the attorneys (ostensibly for use in potential litigation), in order to protect them from discovery. The documents also show that Corporate Counsel for B&W reviewed "behavioral and biological studies" to identify scientific documents that were

"deadwood," with instructions to ship the "deadwood" out of the country without leaving any documentary record of the process {1835.01, p. 2}.

In addition, the work product rule protects documents prepared in anticipation of litigation, but its application requires a more immediate showing than the remote possibility of litigation. The probability that some particular litigation will occur must be substantial before a document may be deemed to be in anticipation of litigation, and the mere fact that a particular event has a likelihood of bringing about litigation at some time in the future is not a sufficient showing. The probability must be substantial, and the commencement of litigation must be contemplated at the time the document is prepared. Thus, advising a client about matters that may or even likely will ultimately come to litigation does not satisfy the "in anticipation of" standard; the threat of litigation must be more real and imminent than that. In order for the work product rule to apply, a specific claim must have arisen to make the prospect of litigation identifiable [23 Am. Jur. 2d, Depositions and Discovery § 53, and cases cited therein]. Although, even at the time of the earliest attorney documents, there was litigation against some of the tobacco companies with respect to the health dangers of cigarettes, nothing in any of the attorney documents marked "Work Product" indicates that the attorneys were contemplating a particular lawsuit against B&W, as opposed to the possibility of litigation against the industry generally in the future.

Attorney-Client Privilege

While the work product rule bars the disclosure of certain work of an attorney in preparation for litigation, the attorney-client privilege bars the disclosure of documents that contain confidential communications between an attorney and his or her client, and neither the attorney nor the client can be compelled to disclose them. Of particular importance with respect to the documents involving B&W's own attorneys is the fact that a corporation can claim the attorney-client privilege and prevent the discovery of communications made to house counsel as well as to outside counsel [23 Am. Jur. 2d, Depositions and Discovery § 30].

Just as the fraud exception may prevent application of the work product rule, the existence of an unlawful purpose prevents the attorney-client privilege from applying. The privilege does not generally exist where the representation is sought to further or conceal criminal or fraudulent con-

duct, whether past, present, or future. Thus, a confidence received by an attorney in order to advance a criminal or fraudulent purpose is beyond the scope of the privilege [81 Am. Jur. 2d, Witnesses § 393]. For example, communications between attorney and client having to do with the client's contemplated criminal acts, or in aid or furtherance of such acts, are not covered by the attorney-client privilege [§ 395]. This rule is equally applicable to communications as to tortious acts [§ 398], and, generally, where an attorney is consulted for the purpose of obtaining advice to assist in the perpetration of a fraud, or in the continuation of an ongoing fraud, the communications are not protected by the privilege [§ 399]. As explained earlier, the fraud exception to the work product rule might apply to the attorney documents; that exception might be applicable to communications for which the attorney-client privilege is claimed. For example, if it could be shown that a "Privileged" communication from a B&W attorney to a B&W executive were in furtherance of a fraudulent attempt to conceal the dangerous nature of the company's tobacco products, that communication would not be protected by the attorney-client privilege. In fact, as discussed below, that is precisely what a federal district court has held in a recent case against the tobacco industry.

Federal Court Rulings

In at least two federal court cases, documents similar to those we discuss were ruled not protected from disclosure by the attorney-client privilege.

As discussed in chapter 1, B&W obtained subpoenas from the Superior Court for the District of Columbia, ordering two congressmen who serve on the House Subcommittee for Health and the Environment to appear in court and to produce the B&W documents in their possession. When the matter was removed to the United States District Court for the District of Columbia, Judge Harold H. Greene quashed the subpoenas. As discussed, he rejected B&W's contention that the subpoenas should be granted because the documents had been stolen by the individual who supplied them to the subcommittee. In addition, he rejected B&W's argument that the subpoenas should be granted because the documents had been obtained by the individual in violation of an attorney-client privilege [Maddox v Williams 855 F. Supp. 406, at 414, 415 (D.D.C. 1994)].

Whereas Judge Greene's rejection of the attorney-client privilege was based largely on public policy grounds—the right of the public to know the truth about the health dangers of tobacco products supersedes B&W's

rights with respect to the documents—the decision in the other case was based squarely on the fraud exception to the attorney-client privilege.

In 1983 a wrongful death action was brought against the Tobacco Institute and several tobacco companies. The plaintiff sought to discover various documents pertaining to the "Special Projects" program of the Tobacco Industry Research Council (TIRC), later known as the Council for Tobacco Research (CTR), and asserted the fraud exception to the attorney-client privilege. (For general discussion of TIRC and CTR, see chapter 2; for discussion of the "Special Projects," see chapter 8.) The plaintiff's general theory of fraud in the case was that the defendants knew of the dangers of cigarette smoking, concealed information that demonstrated the dangers of smoking, and affirmatively misled the public about the risks of smoking. As part of that theory, the plaintiff maintained that the tobacco industry had perpetrated a public relations hoax by advertising CTR as an entirely independent and objective scientific research body that would investigate the supposed hazards of cigarette smoking and report the results of those cigarette studies to the public. The plaintiff contended that, in fact, no meaningful research was conducted and that it was never the industry's intention to discover or publish the truth about the risks of smoking. In contrast to the defendants' promotion of CTR's "independence and objectivity," the plaintiff alleged that the defendants guided CTR to sponsor research tending to prove that other causes existed for the illnesses attributed to smoking, in an effort to perpetuate doubts about links between smoking and disease rather than to uncover the truth. In 1992 a federal district court ruled on the discovery issue and determined that the plaintiff had presented sufficient prima facie evidence of fraud by the defendants to warrant invoking the fraud exception to the attorney-client privilege [Haines v Liggett Group, Inc. , 140 F.R.D. 681 (D.N.J. 1992)].

Although this decision was later vacated by the United States Court of Appeals because of a procedural error [Haines v Liggett Group, Inc. , 975 F.2d 81 (3d Cir. 1992)], the district court's opinion by Judge H. Lee Sarokin includes this general observation:

All too often in the choice between the physical health of consumers and the financial well-being of business, concealment is chosen over disclosure, sales over safety, and money over morality. Who are these persons who knowingly and secretly decide to put the buying public at risk solely for the purpose of making profits and who believe that illness and death of consumers is an appropriate cost of their own prosperity!

As the following facts disclose, despite some rising pretenders, the tobacco industry may be the king of concealment and disinformation. [140 F.R.D. at 683]

Our analysis of the Brown and Williamson documents yields the same conclusions.