Judge Orders Tobacco Firms to Hand Over Secret Papers

The tobacco industry engaged in “a conspiracy of silence and suppression of scientific research,” the judge in Minnesota’s massive lawsuit against the industry has concluded in a decision issued Tuesday.

The judge said he reached this conclusion after reviewing a representative sample of 864 documents that the industry has been attempting to keep secret.

The documents include a 1955 industry memo describing a study interpreted by several of the industry’s “better . . . science writers as indicating that tobacco smoking was an influence in the etiology of lung cancer”--something the industry has consistently denied in public.

The nation’s major tobacco companies also “committed numerous abuses of privilege” and violations of court orders and Minnesota court rules, Ramsey County District Judge Kenneth J. Fitzpatrick said in the ruling.

Fitzpatrick’s order was one of the strongest a judge has ever issued against the industry. He upheld every major finding made earlier this year by a special master in the case who had reviewed the documents and concluded that they showed evidence of crime or fraud.

The judge ordered the defendants to turn over the 864 documents within five days to lawyers for the Minnesota attorney general and Blue Cross Blue Shield of Minnesota, which are jointly suing the industry.

The documents at issue were turned over by Liggett Group Inc. under seal in late March after Liggett reached a settlement with Minnesota and 21 other states that had sued the industry. The other companies have tried to keep them secret since then.

Fitzpatrick’s order applies to all defendants in the case, including Philip Morris Inc., R.J. Reynolds Tobacco Corp., Brown & Williamson Tobacco Corp. and its London-based parent company BAT Industries, Lorillard Tobacco Co., American Tobacco Co., the Council for Tobacco Research and the Tobacco Institute.

Peggy Carter, a spokeswoman for R.J. Reynolds, said the industry had no immediate comment. “We think our arguments were well based,” she said, adding that an appeal was possible.

Fitzpatrick issued the ruling as U.S. Rep Thomas Bliley (R-Va.), chairman of the House Commerce Committee, is on the verge of releasing the documents. Last week, some of the companies turned documents over to Bliley, who had subpoenaed them.

The judge said that he was “deeply concerned by the fact” that the defendants violated a June court order when they failed to provide the plaintiffs with a complete index of the materials they planned to submit in private to the special master as part of their arguments on why the material should be kept secret.

Fitzpatrick also said he was “gravely disturbed” by Special Master Mark Gehan’s finding that the non-Liggett defendants failed to produce joint defense agreements pursuant to a court order.

The judge said a review of randomly selected documents revealed that the defendants claimed privilege for items like transmittal memos that contained nothing of a privileged nature.

“Did the defendants claim privilege for such material to create more of a ‘haystack’ in which to hide their ‘needles?’ Did they fail to conduct a review of the documents sufficient to make a good-faith claim of privilege in the first instance? Whatever the reason, claiming privilege where none even arguably exists constitutes abuse,” Fitzpatrick wrote. “Moreover, a pattern of abuse taints the entire submission.”

Still to come is a decision by Gehan on 150,000 more documents that the companies are trying to keep secret. Minnesota Atty. Gen. Hubert H. Humphrey III said that the 864 documents represent only “the tip of the iceberg.”