When Judge Kessler fined Philip Morris $2.75 million for violating court orders, here’s what she said about its document destruction:

“What is particularly troubling is that Philip Morris specifically identified atl least eleven employees who failed to follow the appropriate procedures, and that those eleven employees hold some of the highest, most responsible positions in the company…In short, it is astounding that employees at the highest corporate level in Philip Morris, with significant responsibilities pertaining to issues in this lawsuit, failed to follow [court orders]…”

Full text at:

http://tobacco.health.usyd.edu.au/site/gateway/docs/pdf/20040721opinion_600.pdf

Perhaps you can help me find the part where she says there was nothing wrong with this document destruction.

“In the context of a fraud case, evidence of intentional document destruction could be very relevant because the whole notion of fraud is that you are deceiving the public. Document destruction on a systematic basis could be a central activity in the scheme of fraud.” William Schultz, Sept 28, 2004.
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Nice lawyerly weaseling there. Even your lawyer didn’t say it was fraud. Evidence of document destruction MIGHT be relevant to attempts to conceal fraud. But it might not. It certainly is not prima facie evidence of fraud.

EVERY corporation in America destroys documents. In fact every individual in America does too. . .do you keep your junk mail?. Document destruction *could* be part of fraud. . .sure. Just like me taking out my trash *could* be part of my attempt to discard evidence from a recent murder. Or me washing my hands or doing my laundry could too.

How many documents per day do you think the Department of Justice shreds or destroys? The number is probably in the thousands. Are they committing fraud also? Did they shred exculpatory evidence in this case? How do you know they didn’t? Is the Department of Justice in breach of its ethical responsibilities here?

The point is its very easy to point a finger and impute improper behavior. Its quite another thing to prove it. There is absolutely nothing intrinsically wrong with shredding documents, and theres even nothing necessarily wrong with doing it specifically to reduce legal exposure (that would depend on exactly what you are shredding and why).

The gov’t claims that the tobacco companies have been involved in a 50 year long conspiracy to commit fraud involving multiple multinational companies and literally hundreds if not thousands of people. They’ve looked at literally millions of documents spanning over literally decades, and spent literally millions of taxpayer dollars on this, and have had literally five full years to make their case. A few months of missing Philip Morris emails notwithstanding, you’d think in that length of time with that mass of paper (and emails) they’d come up with something a little better than charges of document destruction!

No suprise there since the gov’t essentially pulled both the remedy and the $280 billion number from their collective backsides.

This case is effectively over now. Everything else the gov’t is asking for has already been covered by the MSA agreement with the states.

Document destruction at Philip Morris
http://tobacco.health.usyd.edu.au/site/gateway/docs/other.htm#us_doj_destruction

Documentation destruction industry-wide
http://www.washingtonpost.com/ac2/wp-dyn?pagename=article&node=&contentId=A6138-2001Dec6

Document destruction and the Foyle memo
http://www.boston.com/news/nation/washington/articles/2004/09/28/tobacco_lawyers_want_memo_sealed/

Was it illegal?

Judge Kessler fined Philip Morris $2.75 million for violating court orders by its document destruction, and prohibited 11 Philip Morris employees from testifying in this trial because they destroyed documents.

Perhaps Philip Morris just didn’t understand which documents needed to be retained?

In her opinion, Judge Kessler didn’t buy that, noting “Philip Morris is a particularly sophisticated corporate litigant”.

Perhaps some low-level person just made a mistake?

Judge Kessler found “employees at the highest corporate level in Philip Morris, with sigificant responsibilities pertaining to issues in this lawsuit, failed to follow” court orders.

Full opinion at:

http://tobacco.health.usyd.edu.au/site/gateway/docs/pdf/20040721opinion_600.pdfIs it

Is it fraud? I’m not a lawyer. Here’s what a lawyer said about it:

“In the context of a fraud case, evidence of intentional document destruction could be very relevant because the whole notion of fraud is that you are deceiving the public. Document destruction on a systematic basis could be a central activity in the scheme of fraud.” William Schultz, Sept 28, 2004.

http://www.boston.com/news/nation/washington/articles/2004/09/28/tobacco_lawyers_want_memo_sealed/

While potentially embarrassing, trying to reduce potential legal exposure by shredding documents is not only not evidence of racketeering, its not even necessarily illegal. Nowhere is it written (and certainly not in the 80s) that every company is legally obligated to retain every scrap of paper in its files indefinitely, particularly documents that (as both sides here well know) are easily taken out of context to suggest impropriety.

If trying to avoid getting sued is a RICO violation, then every single corporation in the USA, especially most hospitals, are involved in racketeering! Put differently, just because I’m doing my laundry, that doesn’t mean I’m trying to wash out blood stains. . .just because I’m running papers through my shredder, that doesn’t mean I’m a bookmaker.

Simply talking about destroying documents isnt illegal, and in most cases, neither is actually destroying them, so long as such destruction isnt done deliberately to thwart ongoing civil cases or legal investigations. Designing policies to reduce litigation exposure, such as routinely shredding old documents, having lawyers vet documents prior to publication or transfer, or having a “no writing unless necessary” policy isn’t illegal either; its just common sense in our hyperlitigious society.

I think the main thing that Schecter’s testimony proves is that B&W was highly afraid of potential liability from litigation. I think this is the reason why tobacco didn’t challenge any of Schecter’s testimony. . .they didn’t need to.