History Of The B&W Documents

On May 12, 1994, an unsolicited box of what appeared to be tobacco company documents was delivered to Professor Stanton Glantz at the University of California, San Francisco (UCSF). The documents in the box dated from the early 1950s to the early 1980s. They consisted primarily of confidential internal memoranda related to B&W and BAT. Many of the documents contained internal discussions of the tobacco industry's public relations and legal strategies over the years, and they were often labeled "confidential" or "privileged." The return address on the box was simply "Mr. Butts."

A few days earlier, US news media had started running stories based on what they said were internal documents from Brown and Williamson. In addition, internal documents related to Brown and Williamson were the subject of hearings held on June 23, 1994, before the US House of Representatives Subcommittee on Health and the Environment. The chairman and CEO of B&W, Thomas Sandefur, testified at these hearings and provided additional B&W documents to the subcommittee. In this book we analyze the documents delivered to Professor Glantz as well as the documents provided to the subcommittee, which were later released to the public, documents on nicotine research that B&W released to the press in May 1994 following a story in the New York Times (10), and documents obtained from the estate of a former BAT chief scientist.

Brown and Williamson has claimed that some of the documents were stolen from the law firm of Wyatt, Tarrant and Combs in Louisville, Kentucky, by a former paralegal, Dr. Merrell Williams (11, 12). B&W had hired the Wyatt firm to sort and analyze millions of pages of B&W's internal communications, and Williams was one of the paralegals working on the project. This project involved reviewing about 8,600,000 pages of documents, 70,000 pages of which had been identified as "critical" {1002.01} (figure 1.1). Our analysis is based on roughly 10,000 pages, which represent only about 0.1 percent of the documents that were being reviewed.

Williams was hired by the Wyatt firm in 1988 but was laid off in 1992. The following year, Williams, a smoker, underwent major heart surgery. On July 9, 1993, he informed the Wyatt firm through an attorney that he had possession of some of the documents he had been hired to analyze. He returned the documents with a letter stating that his heart condition had been caused by the stress of reviewing the documents as well

Figure 1.1. The B&W document control project involved screening millions of pages of documents
{1002.01}. Our analysis is based on about 0.1 percent of the screened documents.

as a lifetime of smoking Brown and Williamson brands of cigarettes, and he threatened to sue unless the Wyatt firm settled his claim (13). The Wyatt firm responded by filing a civil suit in the Circuit Court for Jefferson County, Kentucky, accusing Williams of stealing the documents. On January 7, 1994, Judge Thomas Wine issued an order prohibiting Williams from discussing or disseminating any of the information contained in the documents [Maddox v Williams , Jefferson Cir. Ct., Case No. 93 CI04806]. (On April 3, 1995, Judge Wine modified the order so that Williams could speak with his lawyer about the case. The modification was necessary, according to Judge Wine, because the documents in question were apparently part of the public domain in California, the Congress, and numerous news media, and because B&W had moved for contempt sanctions against Williams.)

On May 17, 1994, the Superior Court for the District of Columbia, at the request of B&W, issued subpoenas against several news agencies that had published or aired articles on some Brown and Williamson documents. The agencies receiving subpoenas were ABC, CBS, National Public Radio, the New York Times , the Washington Post , the Louisville Courier-Journal, USA Today, and the National Law Review . Subpoenas were also issued against Congressmen Henry Waxman (D-CA) and Ron Wyden (D-OR), who were members of the House Subcommittee on Health and the Environment. The purpose of the subpoenas, according to B&W, was to obtain copies of the documents so that B&W could determine whether they had been obtained in violation of the Kentucky court order against Merrell Williams.

The news organizations refused to turn over the documents in their possession on the grounds that they did not want to reveal the identity of a confidential source. The matter relating to the subpoenas issued against Congressmen Waxman and Wyden was removed to the US District Court for the District of Columbia on May 19, 1994. In a decision dated June 6, 1994, Judge Harold H. Greene quashed the subpoenas. Because the congressmen were using the documents in connection with a congressional investigation of B&W, the judge concluded, they were protected from the subpoenas under the Speech or Debate Clause of the US Constitution (Article I, Section 6) [Maddox v Williams , 855 F. Supp. 406 (D.D.C. 1994)]. That clause, which was designed to preserve legislative independence, provides that senators and representatives may not be questioned in any other place regarding speech or debate in either house of Congress. Despite this provision of the US Constitution, the subpoenas issued against Waxman and Wyden had directed them to submit in

person to depositions in the law offices of Brown and Williamson's attorneys and to provide documents or copies to B&W from among the documents in the possession of Congress. According to Judge Greene, "It would be difficult to find orders that more directly impede the official responsibilities of the Congress and are thus in direct violation of the Speech or Debate Clause" [at 410, 411].

Following this decision, subpoenas issued by B&W were also quashed in three separate state court proceedings. On July 22, 1994 [in Maddox v Williams , No. 94-202], the Circuit Court for Arlington County, Virginia, quashed subpoenas issued to USA Today and one of its reporters. In November 1994 a Massachusetts court, citing "the public interest in the free flow of information," refused to enforce a subpoena issued by B&W against Professor Richard Daynard of Northeastern University School of Law [Robert J. Maddox v Merrell Williams , Civil Action No. 94-3389D]. Finally, on April 3, 1995, the Jefferson Circuit Court in Kentucky quashed subpoenas issued to the Louisville Courier-Journal and USA Today , stating that

despite B&W's contentions to the contrary, the production of the documents is to identify the source. While the attorney-client privilege may well be a bedrock of our judicial system, freedom of the press and its ability to protect sources of information is a pillar of our Federal Constitution [Maddox v Williams , Case No. 93 C104806].

In addition to the quashing of the subpoenas, other courts in other contexts have blocked B&W's attempts to suppress the documents. Thus, in April 1995 in an action by the state of Florida against several tobacco companies, the plaintiff introduced a set of B&W documents and the court denied defendants' motion to have the documents sealed, reasoning that

most, if not all, of the over 800 "stolen" documents filed with the Court as part of Plaintiffs' Request for Admissions were part of the public domain prior to being filed in this Court. These documents have been the subject of newspaper articles, television programs and Congressional hearings. ... To now seal the court files to protect the confidentiality of these documents would be futile [State of Florida v American Tobacco Co. (Cir. Ct. of 15th Judicial District for Palm Beach County, Florida, No. CL95-1466AO)].

During the summer of 1994 Professor Glantz placed the documents in the Archives and Special Collections Department of the UCSF Library, where they were made available to the public. On January 6, 1995, attorneys for a nonsmoker who had developed lung cancer and was suing Philip Morris Tobacco Company for damages attempted to convince a

Mississippi judge to accept these documents into evidence [Butler v. Philip Morris , Civil Action No. 94-5-53, Cir. Ct., Jones County, Mississippi]. Twenty-five days later, on February 3, 1995, Brown and Williamson demanded that the University of California return the documents on the grounds that they were stolen. B&W also sent private investigators to the library to stake out the archives and to photograph people reading the documents. On February 14, 1995, B&W sued the University of California, demanding return of the documents and access to the library circulation records to learn who had read the documents [Brown & Williamson Tobacco Corp. v. Regents of the University of California (Super. Ct. for County of San Francisco, No. 967298)].

At a hearing on May 25, 1995, San Francisco Superior Court Judge Stuart Pollak denied B&W's attempt to "recover" the documents from the UCSF Library (11, 14). In reaching his decision, the judge noted the First Amendment concerns raised by B&W's request that the university be prevented from retaining or using the documents:

But the nature of what is being requested would in fact impinge upon public discussion, public study of this information, which has a bearing on all kinds of issues of public health, public law, documents which may be taken to suggest the advisability of legislation in all kinds of areas.

So, there is ... a very strong public interest in permitting this particular information, judging from what has been shown in the papers, as to what it concerns, permitting this information to remain available for use by the university or by others who may obtain it from the university [transcript of hearing, at 58, 59].

Again, as the Florida court had done, the San Francisco court noted that much, if not all, of the information in the documents had already been made available to the news media. "The genie is out of the bottle. These documents are out" [at 61].

The San Francisco court stayed its ruling for twenty days to give B&W time to appeal, thus leaving in effect a temporary restraining order against the university, which prevented it from allowing public access to the documents. B&W appealed to California's Court of Appeal and requested that the temporary restraining order be kept in force; the Court of Appeal denied this request without comment on June 22, 1995, as did the California Supreme Court on June 29, 1995. Thus, all the B&W documents used in the preparation of this book have been declared to be in the public domain, either by Congress or by the courts, and, in the case of some of the documents, by two or more authorities. At 12:01 A.M. PST on July 1, 1995, the University of California San Francisco Library

and Center for Knowledge Management posted the documents on the Internet (http://www.library.ucsf.edu/tobacco).

Meanwhile, the authors of this book were working on their analysis of the documents and submitted a series of five related articles (which represent about 15 percent of the material in this book) to the Journal of the American Medical Association (JAMA) . After an extensive peer review, the editors of JAMA decided to devote most of the July 19, 1995, issue to these papers (15–19), together with an article detailing Brown and Williamson's reaction to the papers (11). In addition, JAMA took the unprecedented step of publishing an editorial, signed by the editors of JAMA and all the members of the Board of Trustees of the American Medical Association, demanding strong action to control the tobacco industry (20).

Publication of these papers attracted international attention, including that of President Bill Clinton, who read the papers and used them as part of his decision-making process to ask the federal Food and Drug Administration (FDA) to propose regulations of nicotine as an addictive drug and cigarettes and smokeless tobacco products as drug delivery devices (21). The fact that nicotine was in the product to affect the function of the body and that cigarettes could be engineered to control the dose of nicotine delivered got to the core of the issue of FDA jurisdiction to regulate cigarettes.