Congressman Subpoenas Tobacco Industry Documents

A key congressional leader Thursday subpoenaed more than 39,000 tobacco industry documents that the cigarette companies have been vigorously fighting to keep secret for months--documents believed to contain dramatic information about industry marketing practices and scientific research.

Rep. Thomas Bliley (R-Va.), chair of the House Commerce Committee, demanded that the industry turn over the material by March 12. Attorneys suing the industry for the state of Minnesota have been trying to get the documents released for more than a year.

“Congress and the American people deserve to know what’s in the documents so we can make informed decisions about tobacco policy,” said Bliley, referring to the fact that Congress is considering whether to adopt all or part of a proposed $368.5-billion settlement that the industry reached with 40 state attorneys general and private plaintiffs’ lawyers in June.

In recent months, the industry has lost numerous court battles on document disclosure. However, given how hard it has fought to keep this batch of documents from public view, they are believed to contain some of the companies’ most important secrets.

“The more than 100,000 pages of secret documents that remain shielded in the tobacco lawyers’ vaults are the ‘crown jewels’ of the conspiracy,” said Minnesota Atty. Gen. Hubert H. Humphrey III, whose massive suit against the industry is being heard by a jury in St. Paul.

In a related development, the judge in the Minnesota case ruled Thursday that jurors could hear Roger R. Black, the head of Brown & Williamson Tobacco Corp.’s leaf-blending department, invoke the 5th Amendment two dozen times on a videotaped deposition, in response to questions about the company’s efforts to develop a genetically altered, ultra-high-potency nicotine.

That project, code-named Y-1, was the subject of congressional hearings in 1994, and earlier this year it led to the first indictment in the Justice Department’s criminal investigation of the nation’s tobacco companies. In January, DNA Plant Technology of Oakland pleaded guilty to illegally exporting tobacco seeds to Brazil. That offense is only a misdemeanor.

However, DNAP officials are now cooperating with Justice Department officials in their probe into other, more serious offenses that may have been committed by officials of B&W;, the nation’s third- largest tobacco manufacturer, which commissioned DNAP to help develop a tobacco plant with unusually high levels of nicotine.

On Jan. 16, B&W;’s Black was deposed in New York in a separate class-action suit against the tobacco companies. Black was initially ordered by B&W; attorney F. John Nyhan not to answer numerous questions relating to the Y-1 project.

After plaintiffs’ lawyer Brian Campf objected, a brief conference with the judge was held and then Black, on the advice of his personal lawyer, John T. Kotelly, began invoking his 5th Amendment right not to answer questions on the grounds that his responses might incriminate him. Black’s deposition is expected to be played for the Minnesota jury next week. Black did respond to many questions about Y-1 and how it was developed.

When jurors hear Black take the Fifth, it will mark the second time in the Minnesota trial that this has happened. Philip Morris’ former research director Thomas S. Osdene took the Fifth 135 times.

“It is very rare” for two witnesses to invoke the 5th Amendment in a civil case, and it is a potentially devastating development, said Columbia University law professor John C. Coffee Jr. “This is seen as the most damaging thing that can happen to a defendant. Invocation of the 5th Amendment suggests a far broader possibility of guilt and conspiracy. . . . Defense counsel would rather have someone admit they did something wrong rather than take the Fifth.”

Bliley’s subpoenas--issued to executives of four cigarette companies, their research organization and their lobbying arm--were based on two earlier rulings in the Minnesota case.

The subpoenas require the industry to provide 38,000 documents that were ruled non-privileged Feb. 10 by the special master in the case and another 1,100 Brown & Williamson documents that the company reluctantly surrendered to attorneys for Minnesota last month after a lengthy court battle. The industry is appealing the Feb. 10 ruling.

In November, Bliley subpoenaed more than 800 industry documents from the Minnesota case and subsequently made them public, posting them on a congressional Web site on the Internet. On Thursday, he said he expects to do the same with these documents, and he asked the companies to provide the material on CD-ROM.