House Panel Pulls RJR Memo From Web Site

A provocative memo describing how R.J. Reynolds Tobacco Co. lawyers suppressed research on the health hazards of smoking has been removed from a congressional Web site after company officials complained that it should not have been made public Wednesday.

RJR attorneys also have alleged that the Minnesota attorney general’s office improperly alerted members of the news media on how they could obtain the document on Wednesday when the House Commerce Committee posted thousands of previously secret industry papers on its Web site.

The committee had subpoenaed the documents after a Minnesota judge ruled that 39,000 secret industry papers should be made public--a decision upheld by the U.S. Supreme Court.

On Wednesday, the committee said that it had held back 400 of the documents in response to industry pleas. Industry officials said the papers contained trade secrets or were entitled to confidentiality because they had been prepared by outside lawyers currently working for the companies.

The controversial 104-page research memo, prepared in 1985 by RJR’s lead outside law firm--Jones, Day, Reavis & Pogue of Cleveland--is a detailed review of the way company lawyers had interacted with company scientists over three decades. It recounts a number of instances in which the scientists complained that they had been prohibited from going public with important research, including discovery in the 1970s of a method to remove carbon monoxide from tobacco smoke.

It was not clear Friday whether attorneys for the state of Minnesota and Blue Cross/Blue Shield of Minnesota, who are suing the industry for $1.77 billion in damages, will attempt to put the document into evidence in the trial, now in its 13th week, or if the committee ultimately will restore the document to the Web site.

Two sources at the House Commerce Committee said that the committee would make a document-by-document review of the 400 memos that were held back.

The sources said the RJR memo had been placed on the committee’s public Web site inadvertently. They said it was contained on a computer disk that was supposed to be inaccessible to the public.

However, members of the Minnesota attorney general’s staff--and some members of the media--using what is known as a “Bates number”--the formal numerical identification for the document in the Minnesota case--were able to access and download the document. The document became the centerpiece of numerous articles by newspapers, including The Times, on the release of the industry papers.

The Minnesota attorney general’s office also disseminated a four-page summary of the Jones Day memo and critical comments about its contents from state Atty. Gen. Hubert H. Humphrey III.

Paul Crist, a Jones Day lawyer, asserted that the document was classic attorney work product that should have been kept confidential. In March, Judge Kenneth J. Fitzpatrick ruled that the 39,000 documents should not be kept confidential because they showed evidence of crime or fraud.

Jonathan Redgrave, one of RJR’s Minneapolis lawyers, said that representatives of the attorney general’s office alerted reporters to the document in violation of a protective order.

Michael V. Ciresi, the lead outside lawyer for Minnesota, branded that charge “nonsense” and contended that there is no reason the Jones Day memo should be kept from the public.

Ciresi said he was disturbed that the memo had been removed from the Web site and said Minnesota’s lawyers would urge Fitzpatrick to formally release all the documents “so we can help the FDA [Food and Drug Administration], the Justice Department, the Congress, state bar associations and everyone else that has been asking for our help in getting to these documents in an expeditious fashion.”

A number of provocative memos, described in summary fashion in rulings by Fitzpatrick and a special master who reviewed the material earlier this year, were not on the Web site Friday and may be among the 400 documents being withheld. Among them is a document reporting on “youngsters’ motivation for starting [smoking], their brand preferences, etc., as well as the starting behavior of children as young as 5 years old.”

As of midday Friday, House Commerce Committee officials said that the Web site had received nearly 100,000 hits.

Committee staffers acknowledged that there had been difficulty accessing some of the material on the site (https://www.house.gov/commerce). At times over the last three days, certain portions of the site were closed down because of what were described as technical difficulties.

On Friday, the committee said it had posted 10,000 pages of additional Philip Morris documents and RJR documents that had not been accessible the first two days.