Special Procedures For Handling Documents
Sent To B&W
To maintain the company's unwavering public position that there was no scientific evidence of any health dangers (and the implication from its silence that the company had certainly not discovered any in its own exhaustive research), the attorneys developed special procedures for the handling of internal scientific documents. These procedures were designed to allow the company to claim that the documents came within the attorney-client privilege. This use of the attorney-client privilege appears to have been very broadly applied to sweep up work that would normally have been conducted for scientific rather than litigation purposes. As such, the adoption of these private procedures to maintain secrecy seems completely inconsistent with the public claims made by the tobacco companies that they were spending millions of dollars on research for the scientific purpose of evaluating the safety of tobacco consumption.
The purpose of these procedures is explicitly spelled out in the memorandum that established them: a June 15, 1979, memo, marked "Restricted," from J. K. Wells, the corporate counsel, to Ernest Pepples. After describing the current procedures under which scientific materials from BAT are received at B&W, Wells states that he has not come up with any better ideas for handling the materials than Pepples had previously outlined:
The [scientific] material should come to you under a policy statement between you and [BAT's laboratory in] Southampton which describes the purpose of
developing the documents for B&W and sending them to you as use for defense of potential litigation. It is possible that a system can be devised which would exempt the Engineering reports [which Wells has previously stated are almost never concerned with smoking and health] because it might be difficult to maintain a privilege for covering such reports under the potential litigation theory.
Continued Law Department control is essential for the best argument for privilege. At the same time, control should be exercised with flexibility to allow access of the R&D staff to the documents. The general policy should be clearly stated that access to the documents and storage of the documents is under control of the Law Department and access is granted only upon approval of request. A secured storage area of the documents should be arranged, perhaps in the R&D library [as opposed to the law library] and the policy statement would designate the same terms and conditions of storage for the documents as were spelled out for the literature retrieval service files [emphasis added]. {1824.02, pp. 1–2}
After suggesting that the documents might be divided into different categories according to how sensitive the documents are, the memo continues:
The abstracts of the documents should be circulated only for the less sensitive categories and then only to a list given prior approval by the Law Department.
The policy should explicitly make Dr. Sanford [director of research and development] the agent of the Law Department with regard to these procedures. {1824.02, p. 2}
These procedures would have put the Law Department in control of the dissemination of internal scientific reports.
Five months later, on November 9, 1979, Wells sent another "Privileged" memo to Pepples on the same subject. Evidently, the proposal in the June memo had not been adopted, because this memo discusses the problem as if it had just arisen:
I have discussed with Gil Esterle [International and External Technical Services Department] various alternatives for handling BAT scientific reports which come to B&W in a way that would afford some degree of protection against discovery . ... One alternative discussed was that all BAT scientific reports would be sent to you [emphasis added]. {1824.01, p. 1}
Wells notes that this procedure would be cumbersome because the vast majority of the documents are routine—that is, not sensitive—and then states:
The cost sharing agreement between B&W and BAT, under which B&W pays for BAT scientific research and receives reports, is an obstacle because as presently written it would probably contradict the position that you were acquiring the reports for purposes of litigation. ...
I recommend a second alternative, which would be that all BAT scientific reports be shipped directly to Dr. Esterle under a formal arrangement that Dr.
Esterle was assigned to be your agent for the acquisition of scientific materials in anticipation of litigation. Dr. Esterle would separate the reports which were relevant to smoking and health, or otherwise sensitive, for special handling as described below and place the routine reports into regular R&D circulation [emphasis added]. {1824.01, p. 1}
After explaining that this procedure would provide work product coverage for sensitive documents under federal and Kentucky law, Wells continues:
There would still be the matter of the cost sharing agreement. Regardless of the initial recipient of the documents, in order to be covered by the rules of civil procedure they must be "prepared in anticipation of litigation ." Appropriate paper work should be established with BAT, including any amendments to the cost sharing agreement to establish that documents of a certain nature are prepared for B&W in anticipation of litigation. I have in mind paper work which would make the statement as a policy between the parent and sibling, but that in the operational context BAT would send documents without attempting to distinguish which were and were not litigation documents [emphasis added]. {1824.01, pp. 1–2}
These cost- and risk-pooling agreements are discussed later in this chapter.
More than six years later, on February 17, 1986, Wells sent another memo to Pepples, this time dealing with the question of whether B&W should receive certain scientific reports from affiliated companies generally, and how B&W can receive such reports without receiving information that would be useful to a plaintiff. The memo includes references to specific projects and notations as to whether B&W is interested in them. Wells summarizes his discussion with Esterle and David Gordon, controller in the B&W R&D administration, on this subject:
[W]e should approach these projects on the basis of whether the reports are limited to the information from good science and whether the information is useful in the United States market. Our market is a "tar" and nicotine market, and information pertaining to other constituent delivery levels and biological effects will not be helpful .
B&W will receive concise reports, estimated to be about one-half page in length, twice each year for each project it wishes to follow. While the brevity of the reports will reduce the potential for receipt by B&W of information useful to a plaintiff, disadvantageous information could be included and the reports could serve as road maps for a plaintiff's lawyer.
I have advised that we can receive reports from some of these projects notwithstanding the risk. The reason is that we cannot shut out the flow of information: the BAT will find ways to get information into B&W from the scientific projects it is running in its laboratories worldwide. The only way BAT can avoid having information useful to plaintiff found at B&W is to
obtain good legal counsel and cease producing information in Canada, Germany, Brazil and other places that is helpful to plaintiffs [emphasis added]. {1824.03, p. 1}
The memo goes on to summarize the discussions among Wells, Esterle, and Gordon about eight specific projects, selected from a longer list (see table 7.1), in which the scientific staff had expressed initial interest. The list below includes the title of each research project, as described in the B&W database, followed by Well's comments:
No. 430. [New/novel products: filter: aerosol testing (special cigarette developments).] Among things of interest, the project apparently intends to investigate the retention of smoke particles in the respiratory tract. Such data could be used by the plaintiff. I have taken under advisement the question whether B&W should receive reports from this project. I propose to suggest to RD&E [Research, Development, and Engineering] that we ask for more information before we decide. The work will occur in Germany, and the German scientist who designed the program should seek counsel before providing the additional information. Hopefully, the problem area will disappear .
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No.514. [Product development & innovation: smoking pleasure & satisfaction.] RD&E is interested because apparently the project includes work on better quality low delivery cigarettes. However, the description contains a statement that the low delivery is intended to "satisfy another identified consumer need for personal reassurance." The project will be done in the U.K. David [Gordon] will ask for more information about the work to be included in the project before requesting reports.
No. 487. [Smoke control: sidestream reduction: visibility.] RD&E is interested in work dealing with sidestream smoke reduction, but is not interested in the biological testing of products produced. David [Gordon] will explain this to Allen Herd and ask whether projects could be run without biological testing .
No. 496. [Smoke control: chemical reaction mechanisms: other smoke components.] After discussion, RD&E is not interested .
No. 313. [Investigation of the effects of nicotine enhancement on human smoking behaviour.] RD&E is interested in information which relates the "tar"/nicotine ratio to subjective smoke quality. However, this project could produce data pertaining to nicotine such as pharmacological information which would be helpful to plaintiffs. RD&E will begin receiving this information, but will not be interested unless the work deals predominantly with subjective smoke quality .
No. 331. [The influence of additives on the mutagenicity of smoke condensate.] After discussion, RD&E decided it is not interested .
No. 305. [Sidestream smoke and irritation.] RD&E will receive these reports.
No. 453. [Smoker reaction/behavior: product testing: the influence of nicotine within the smoker.] RD&E is interested in information pertaining to the role of nicotine in the smoker's subjective perception of smoke quality. If the reports stick to research data, the reports would be interesting. However, if the reports include discussions of pharmacological effects of nicotine, the information will not be interesting and would be helpful to the plaintiff. RD&E will begin receiving reports from this activity and be prepared to inform BAT to cease sending the data to B&W if the science is not interesting [emphasis added]. {1824.03, pp. 1–2}
Wells ends his memo to Pepples with the following plea:
I recommend you discuss the problems involved in the projects with counsel for the BAT companies involved. {1824.03, p. 2}
Apparently, the projects deemed not "interesting" to the B&W research and development staff were those whose results might be useful to plaintiffs in products liability cases against the company. Thus, re-
search results from elsewhere in BAT aimed at cosmetic improvements (less visible sidestream smoke), reduced irritation (which makes smoking easier), and customer satisfaction were of interest to B&W, but results that might delineate the toxicities of tobacco smoke or the pharmacological properties of nicotine were to be avoided. (See chapter 3 for a discussion of the research at BAT that indicated the addictive nature of nicotine and chapter 4 for a discussion of the research that, in the process of BAT's attempt to produce a "safe" cigarette, confirmed the toxic nature of tobacco smoke.)