Judge Kessler provided an extra-long lunch today, in view of the heady parade of documents, assertions and accusations which had accompanied the morning’s Interim Summations.
After lunch, there were discussions over documents to be allowed into evidence. Mr. Frederic of Philip Morris (Winston & Strawn) wanted to exclude the South China Morning Post article that linked the Sarah Liao Hong Kong personal monitoring study to CIAR. He said it was hearsay, a mere assertion in a newspaper article. Judge Kessler allowed the document into evidence, saying, essentially, I can properly weigh the newspaper article.
A more difficult problem arose over an article referenced in the Direct Testimony of Max Eisenberg. Mr. Redgrave of RJR (Jones Day) wanted the written testimony expunged in a section from pages 31 to 32. In this section, the DOJ presented Dr. Eisenberg with 2 versions of the same document. One version had redactions marked as “privileged material.” The other, undredacted version, showed Mr. Rupp’s involvement in the meeting had been excised, ie, “A summary of comments made in an internal review of the Schwartz-Balter Pre-Proposal by RJRT Staff was furnished Mr. John Rupp. . . [in order to] develop the pre-proposal into a form acceptable to CIAR.”
This would go to the DOJ’s case of attempting to conceal lawyer involvement in CIAR science. However, though Dr. Eisenberg was cc’d on the document, he had no idea why it was redacted. There was some back and forth about this between Mr. Redgrave and Mr. Brody, but Judge Kessler decided that, (paraphrasing), “The problem is that what you (DOJ) are trying to show has no relation to this witness,” ie, who knows when or why the document was redacted. It could have been done by almost anyone at any time in the past.
Judge Kessler allowed the Written Direct Testimony to be expunged.
Considering the brou-ha-ha that erupted the last time a document had to be altered from the version on the website, I wonder if we’ll be hearing more about the infamous “point of no return.”
At any rate, I have marked up my text version of the document, but I can’ t do that for the PDF file. Now, just as there are 2 versions of this document out in the world–one redacted for Mr. Rupp and one not–so there will soon be 2 versions of Dr. Eisenberg’s testimony out in the world–one redacted for Mr. Rupp, and one not. . . .