March 8, 1998 in Nation/World

Tobacco Industry Documents Opened Minnesota Judge Orders Release Of 39,000 Records

Barry Meier New York Times
 

A Minnesota state judge on Saturday ordered cigarette makers to release about 39,000 internal documents to lawyers for the state after a finding last month that the records may contain evidence of fraud and other crimes by tobacco company officials and their lawyers.

The judge, Kenneth Fitzpatrick of Ramsey County District Court, who is overseeing the state’s lawsuit against the nation’s leading cigarette producers, gave the companies until Monday to produce the documents. A spokesman for the Philip Morris Cos., the nation’s largest cigarette maker, said the company had disagreed with the ruling and planned to appeal.

Fitzpatrick’s ruling covered thousands of potentially explosive documents that involve communications between cigarette company officials and their lawyers. The companies have long fought release of the documents, arguing that the records were protected from disclosure by the attorney-client privilege.

But last month, Mark Gehan, a lawyer appointed by Fitzpatrick to review the issue, recommended that lawyers for the state and Blue Cross and Blue Shield of Minnesota, which are suing to recover money spent treating smoking-related illnesses, be given access to 39,000 of the 240,000 lawyer-client documents collected for the case. Gehan found that the smaller group of records contained potential evidence of fraud and other crimes.

In his ruling on Saturday, Fitzpatrick reaffirmed Gehan’s recommendation but added that he might require the companies to release other documents involving their lawyers.

Fitzpatrick also held that the defendant companies had abused the courtroom process by claiming privileges for documents where legal grounds did not exist and by abusing a system of categorization established by the court to speed the document-review process.

Among other documents, Fitzpatrick pointed to a marketing survey prepared for a lawyer for the Canadian subsidiary of British-American Tobacco, the parent company of the Brown & Williamson Tobacco Co. The survey looked at such issues as the views of teenagers toward smoking and addiction, including “the starting behavior of children as young as 5 years old,” court papers show.

Fitzpatrick also unsealed Gehan’s report on Saturday. It found, among other things, that lawyers for the state had “presented substantial evidence showing involvement in scientific research and other scientific matters by attorneys for the tobacco industry, and that industry attorneys were a driving force behind the direction of and suppression of scientific research.”

According to excerpts of Gehan’s finding released by the state, he also held that: “While nicotine is a naturally occurring component of the tobacco plant, the modern cigarette is a highly engineered and sophisticated product in both manufacture and design. Specifically, the defendants control and manipulate the level and form of nicotine in the commercial product.”

Tobacco producers have long denied that they target or manipulate levels of nicotine, the compound that addicts smokers to cigarettes.

Soon after Gehan completed his report last month, Rep. Thomas J. Bliley Jr., R-Va., chairman of the House Commerce Committee, issued subpoenas to the tobacco companies ordering them to produce the 39,000 documents at issue in the Minnesota case. The companies have until Thursday to comply.

The Minnesota case is the first of 40 state lawsuits seeking to recover Medicaid money from cigarette makers to go to trial. Texas, Florida, and Mississippi have settled their cases.

With Philip Morris and Brown & Williamson, the other defendants include the R.J. Reynolds Tobacco Co.; the Lorillard Tobacco Co.; and the Liggett Group.


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