Tobacco Firms Must Release Documents

In another important legal setback for the tobacco industry, a Kansas judge on Wednesday denied the companies’ bid to keep secret 2,500 internal documents that have been the subject of fierce litigation around the country.

The ruling by Shawnee County District Judge Fred S. Jackson further ratchets up the pressure on an embattled industry that, its critics claim, hid the dangers and health effects of smoking from the American public for several decades.

A Philip Morris attorney said the industry would appeal Jackson’s decision.

“We believe the court is wrong in its analysis,” said Gregory G. Little, associate general counsel for Philip Morris.

Kansas Atty. Gen. Carla J. Stovall hailed the judge’s decision, saying release of the “documents will further shatter the wall of silence Big Tobacco built over the last 50 years to hide from the American people the dangers of smoking and its schemes to prey on our children.”

Jeffrey A. Chanay, a Topeka attorney who is a special counsel for the state in its massive suit against the industry, noted that the documents have all been kept from public view except for several released recently as part of Florida’s litigation against the industry.

Wednesday’s ruling created another major legal problem for the tobacco industry in a state whose suit has had little previous visibility. Kansas sued the nation’s cigarette companies in August 1996, seeking recovery for money that the state spent treating sick smokers and other damages.

The case is not expected to go to trial until 1999, but if these documents are released, they could damage the industry’s legal position and generate additional adverse publicity as Congress considers the proposed $368.5-billion national tobacco settlement.

The documents at issue are ones that Liggett Group agreed to turn over when the nation’s smallest cigarette maker announced in late March that it had settled suits lodged by 20 state attorneys general, including Kansas.

A 160-page log of the documents, obtained by The Times, shows that it includes letters, memos and notes made by Liggett attorneys during meetings of the Committee of Counsel, a lawyers’ group that played a key role in formulating legal strategy for the industry.

The log also indicates that it contains material concerning the Council for Tobacco Research, the industry’s research arm, and the Tobacco Institute, the industry’s lobbying organization.

All the other cigarette companies objected to release of the material, contending that it should remain confidential because of several traditional legal defenses, including one known as the “joint defense privilege.” Since late March, litigation over the documents has ensued in states around the country.

Earlier this year, after rulings by five judges, eight of the documents were released in Florida. Last month, a special master in Minnesota ordered that 834 of the documents be turned over to plaintiffs’ attorneys, a decision currently being appealed by the cigarette companies.

In his decision, Jackson acknowledged that the case presented an issue for which there was no clear precedent in Kansas. The question facing him was whether Kansas should recognize the “joint defense privilege,” under which various parties with similar interests can share information with each other while protecting information from opponents under the attorney-client privilege.

Jackson stressed that, unlike many other states, Kansas has no statute providing for a joint defense privilege. As a general rule in Kansas, Jackson wrote, a party that provides information to another party waives any claimed attorney-client privilege to that information. After reviewing the industry’s legal arguments, the judge concluded that he would not grant an exception to that rule.

Jackson also ruled that even if the other tobacco companies could have claimed a privilege to the documents at some point, they waived the privilege by giving the documents to Liggett.

Unless the industry secures a stay or a reversal, the documents, now held at the court clerk’s office in Topeka, are to be turned over to the plaintiffs, under seal, in 30 days.

But the industry is not expected to give up easily.

“This is not simply a tobacco issue,” said Little, the Philip Morris attorney. “If this ruling was adopted by courts across the country, it would essentially gut the attorney-client privilege in any case involving more than one defendant.”