“Jones/Day” Is Admitted
January 25, 2005 1:43 pm by Gene BorioJudge Kessler allowed the disputed “Jones Day” document in as an exhibit today.
(US Exhibit # 21,020: http://www.tobacco.org/resources/documents/jonesday1.html.)
She allowed it for two reasons:
1. It is a Bliley document, and Judge Kessler’s previous order # 149 held that, because of the Defendants’ “minimal” attempts to maintain privilege over the documents they released to Congress on April 6, 1998, they have in effect relinquished claims of attorney-client privilege and work product. And the documents, as she said today, “are out there for the world to see.”
2. The relevancy is clear, she said. The Government averred it is not offering the document for the truth or accuracy of whatever data may be in it; rather, DOJ is offering it because of its belief that the data was transmitted to Reynolds, and that, therefore, Reynolds should have then considered itself “on notice.”
Mr. Redgrave tried to argue that there is no evidence it was ever in RJR’s files at any time, and there is no reason to presume RJR was “on notice.”
But Judge Kessler said, “I’ve made the ruling.”
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Mr. Schindler was not asked about the Jones Day document in court, but the ruling will affect several pages of his Corrected Written Direct Testimony, which I have transcribed/copied from the PDF document filed on the government’s “Pacer” website. While Mr. Schindler’s excisions are not shaded, as in the PDF document, it is fairly easy to tell his Corrections. They occur on the next line below the initial “A.” answer, and almost always begin,
“I don’t believe I have ever seen it, I accept your representation as to what it says. I am not aware of whether Jones Day informed Reynolds of any of the information in this document.”
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Page 47
. . .
Q: While the company scientists may not have been letting on about scientific knowledge 17
with regard to nicotine and addiction, this is not a topic that escaped Reynolds’s lawyers’ eye, is 18
it? 19
A: What do you mean? 20
Q: The Company’s lawyers have warned Reynolds management about the scientists’ head- 21
in-the-sand approach toward nicotine addiction science, haven’t they? 22
A: You’ll have to show me what you mean. 23
Q: U.S. Exhibit 21,020 is a document from the late 1980s entitled “Key Tobacco Documents 24
Corporate Activity Project – Draft Report by Jones Day Reavis & Pogue”? 25
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Page 48
A: Yes. 1
I don’t believe I have ever seen this document. 2
Q: We’ll refer to Jones Day Reavis & Pogue as “Jones Day”, okay? 3
A: Okay. 4
Q: Jones Day is the law firm representing you and the company here in court today? 5
A: Yes. 6
Q: At internal pages 344-345 of U.S. Exhibit 21,020, Jones Day informs Reynolds, “G. 7
Robert DiMarco stated in Browner that Reynolds does not accumulate data related to addiction 8
because ‘we don’t believe there is addiction,’ but if there were a concern Reynolds would rely on 9
CTR. Although he is aware of allegations that the use of tobacco is addictive, DiMarco did not 10
know if CTR has ever funded pertinent research.” 11
A: That’s what it says. 12
I don’t believe I have ever seen it, I accept your representation as to what it says. I am not aware of 13
whether Jones Day informed Reynolds of any of the information in this document. 14
Q: You knew Dr. DiMarco when he was at Reynolds? 15
A: Yes. 16
Q: He served as director of the Research and Development Department from 17
approximately 1982 to 1992? 18
A: Yes. 19
Q: At page 345 of U.S. Exhibit 21,020, Jones Day informs Reynolds, “Documents produced 20
by Reynolds reflect that relatively little attention was given to addiction literature” and that 21
“two RJRT documents indicate that Reynolds has not intensively studied the addiction 22
literature as late as 1979[ ]”? 23
A: Yes. 24
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Page 49
I don’t believe I have ever seen it, I accept your representation as to what it says. I am not aware of 1
whether Jones Day informed Reynolds of any of the information in this document. 2
Q: “RJRT” is a common acronym for R.J. Reynolds Tobacco Company? 3
A: Yes. 4
Q: Jones Day goes on to tell Reynolds about these two documents, describing the first as 5
one in which “Dr. Piehl identified the need for a ‘behavioral scientist to review, evaluate and 6
coordinate information in the smoking behavior area”? 7
A: Yes. 8
I don’t believe I have ever seen it, I accept your representation as to what it says. I am not aware of 9
whether Jones Day informed Reynolds of any of the information in this document. 10
Q: And Jones Day characterizes (at page 346) the second document as saying, “‘A 11
comprehensive literature review was not conducted as complete understanding requires a 12
competent behavioral scientist. The field is complex and controversial and we are basically 13
ignorant and dependent on outside evaluation. This issue is based only on a general awareness 14
of the literature over the last 5 years, our competitor’s activity and personal judgment.” 15
A: Yes. 16
I don’t believe I have ever seen it, I accept your representation as to what it says. 17
Q: And Jones Day goes on to tell Reynolds (at 349), “Prior to 1980, very little research was 18
conducted or funded by RJRT to evaluate the possibility that cigarettes possess habituating or 19
addicting properties.” 20
A: Correct. 21
I don’t believe I have ever seen it, I accept your representation as to what it says. I am not aware of 22
whether Jones Day informed Reynolds of any of the information in this document. 23
Q: Of those documents that Jones Day does identify (at page 348 of U.S. Exhibit 21,020) for 24
Reynolds management, one is a 1979 document by a Dr. Piehl that identifies “the six types of 25
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Page 50
smokers” – one of which is “Addictive – People who find it unbearable to run out of cigarettes 1
are described as using addictive-type smoking.” 2
A: Yes. 3
I don’t believe I have ever seen it, I accept your representation as to what it says. I am not aware of 4
whether Jones Day informed Reynolds of any of the information in this document. 5
Q: On that same page of U.S. Exhibit 21,020 Jones Day points out that Piehl identified 6
another “type” of smoker other than the “addictive” one, and this one involves smokers who 7
“‘tend to smoke heavily, . . . and find it very difficult to stop smoking’”? 8
A: Yes. 9
I don’t believe I have ever seen it, I accept your representation as to what it says. 10
Q: So here a Reynolds scientist has not only said that some smokers are addicted, but that 11
this smoker “type” is separate and apart from the “type” of smoker who “find it very difficult 12
to stop smoking’”? 13
A: Yes. 14
I don’t believe I have ever seen it, I accept your representation as to what it says. 15
Q: By contrast, your statements about cigarette smoking – statements you make in public 16
fora like lawsuit testimony – assert that smoking is “addictive” in the “everyday term that is 17
used today” precisely because it is “difficult to quit”? 18
A: Okay. 19
I don’t believe I have ever seen the Jones Day document. For that reason, I really can’t respond to 20
your question. 21
Q: So the Company management has been willing to ignore scientific distinctions made by 22
its own company researchers in favor of politically or semantically favorable constructs 23
regarding addiction? 24
A: No. 25
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Page 51
As I said, I don’t believe I have ever seen the Jones Day document you are referring to, so I don’t 1
know. 2
Q: Now, just looking down the page – page 348 of U.S. Exhibit 21,020 – the footnote # 550 3
gives the reference to the name and date of that Piehl document – “Smoking Behavior – A 4
Review,” September 1979? 5
A: Yes. 6
I don’t believe I have ever seen it, I accept your representation as to what it says. 7
Q: One thing that is missing is a reference in the footnote to a “bates number” for that 8
document? 9
A: There is no bates number listed there. 10
I don’t believe I have ever seen it, I accept your representation as to what it says. 11
Q: In your experience with tobacco litigation, a document is not produced to the other side 12
unless and until it has a bates number? 13
A: That has been my experience. 14
I don’t know. 15
Q: At page 37 of U.S. Exhibit 21,020 Jones Day tells Reynolds, “documents describe a 16
British American Tobacco Company sponsored conference in 1978, attended by PM and B&W 17
representatives. One of the findings of the conference was: ‘Serious smokers smoke to prevent 18
withdrawal symptoms.’” 19
A: Yes. 20
I don’t believe I have ever seen it, I accept your representation as to what it says. I am not aware of 21
whether Jones Day informed Reynolds of any of the information in this document. 22
Q: Despite these scientific findings presented at an industry-sponsored conference, your 23
Company’s position has been and remains that quitting smoking is not accompanied by a 24
withdrawal syndrome akin to that of cessation of alcohol or illegal drug use? 25
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Page 52
A: Yes. 1
I am not familiar with the conference or the findings or the underlying scientific support for such 2
findings, but your summary of Reynolds’ position I believe to be accurate. 3
Q: The Company’s lawyers have told Reynolds, “[T]he defense must not concede that 4
cigarette smoking has been proved to be addictive. Indeed there are substantial benefits to be 5
derived over waging a definitional battle.” That’s what Jones Day told Reynolds in U.S. Exhibit 6
21,020 at pages 361-362? 7
A: That’s what it says there. 8
I don’t believe I have ever seen it, I accept your representation as to what it says. I am not aware of 9
whether Jones Day informed Reynolds of any of the information in this document. 10
Q: And one example Jones Day points to (at pages 362-363 in U.S. Exhibit 21,020) is the 11
distinctions between ‘habituation’ and ‘addiction’ set forth in the 1964 Surgeon General’s 12
Report? 13
A: It is discussed there. 14
I don’t believe I have ever seen it, I accept your representation as to what it says. 15