Easter Charade

March 25, 2005 8:13 pm by Gene Borio

When a lawyer wished Judge Kessler “Happy Easter” as she wearily trudged down from the bench at 5:30 PM, after a long and nearly fruitless discussion that addressed, incompletely, only 1 of the 3 new remedies witnesses, I thought, “Yes, Judge Kessler, Happy Easter — and good luck resurrecting any semblance of this trial’s once-timely schedule.”

But let’s go back to the Remedies Witnesses discussion as it began in the morning, at the end of Dr. Rowell’s testimony.

Mr. Bernick seemed fairly threatening this morning when he discussed the DOJ’s new national cessation program remedy–which would cost $120 Billion. The program was based on new remedies, he said, and the defendants should get a new opportunity to defend against them. He said the defense was entitled to every bit the same discovery necessary to deal with this claim that they would have been entitled to had this claim been made earlier in the case.

Mr. Bernick said (roughly):

We are prepared to use all our resources to get that full and fair opportunity. . . . I can subpoena every document …. Mr. Myers was heavily involved in the MSA, we can ask for all his documents. . . we would depose government officials on conversations, we would go to OSH, to government offices, and say give us all you have for Myers.

Ms. Eubanks said she needed to call CTFK’s counsel for the discussion, since “Mr. Myers may not testify if he has to open CTFK’s files.”

At 4:30 in the afternoon, at the end of Dr. Appleton’s testimony, Judge Kessler, intending to address Defense’s needs for all 3 new witnesses, asked what the Defense needed in regards to, first, Michael Myers of the Campaign for Tobacco-Free Kids.

RJR’s Jonathan Redgrave began simply enough, by saying Defense needed 3 things:

1. A description, with particulars, of Mr. Myers’ projected testimony.

2. The identification and production of those documents in the possession of the U.S. or Mr. Myers or CTFK, related to his’ testimony.

3. A Deposition of Mr. Myers.

Mr. Redgrave said they needed the first two before the Deposition–now scheduled for April 9 (this should give you some idea of how much longer this trial will go on). Mr. Bernick pointed out that they needed the first two beforehand because, for them, the purpose of a deposition is impeachment.

The DOJ’s Sharon Eubanks argued fiercely against the Defense’s request of all documents related to what the new witness(es) would testify about. She said this was tantamount to “an invasion of our work-product, our thoughts, our ideas.”

Mr. Bernick said Defense’s request #2 was meant to cut short the time and effort it usually spends in discovery. Considering the massive amounts of discovery which the Defendants have traditionally utilized, that time and effort is considerable.*

As for the DOJ’s severely limited capacity to wage war–and war is not too strong a term, as personal relations seem increasingly strained–when Judge Kessler suggested the parties may have to make use of the Special Master again, Ms. Eubanks said DOJ had “NO BUDGET–none!” with which to hire a Special Master.

Judge Kessler agonized over the need to give the Defense their full due process, and yet to keep the trial forging ahead on a reasonable schedule, and was obviously displeased to leave late this afternoon without even one disposition. She will read the parties’ short submissions over the weekend..


*Judge Kessler remains ever-shockable about the industry’s resources and methods.

In the morning, Ms. Eubanks noted that she had no idea until lately the number and extent of FOIA (Freedom of Information Act) requests the Defense had made of various government departments throughout the trial. “They have more Government documents than we have,” she said.

Later, Judge Kessler indicated she had learned during this discussion even more about the Defense’s information-gathering capabilities. She said the Defense certainly had a right to all the “massive discovery and creative processes using all the mechanisms available under Federal rules” to which they were entitled–some of which, she indicated with an expression of wonderment, she didn’t know about until this morning.

I was sure she was talking about the apparently voluminous FOIA requests.



There will be no court Monday. We return Tuesday morning, March 29.

A source tells me Judge Kessler’s Guantanamo Temporary Restraining Order (TRO) hearings will be Wednesday, March 30.

One Response to “Easter Charade”

  1. tobacco observer Says:

    “Yes, Judge Kessler, Happy Easter – and good luck resurrecting any semblance of this trial’s once-timely schedule.”

    If this trial has been running interminably or off-schedule, Kessler has absolutely no one to blame for that but herself.

    Had she simply followed twice-established Federal precedent on civil RICO disgorgement, as she was supposed to do, instead of making up her own new law on the topic, this case probably would have been settled without a trial eight months ago.

    In the meantime, the gov’t has had five full years to work up possible remedies, and has spent $140 million of the taxpayers money on this. The discovery in this trial to date involves tens of thousands of pages of documents, and is likely one of the most voluminous in the history of American Jurisprudence. The Gov’t has also had more than six months advance notice that disgorgement could be taken off the table, and plenty of time to develop different possible remedies during that time. Did they? No.

    So now, after five years, at this eleventh hour they want new witnesses with new evidence admitted, but they are simultaneously claiming they are too poor to permit new discovery. They can’t have it both ways.

    If Kessler wants to open up Pandora’s box and allow new witnesses this late in the game, she also has to permit tobacco to have reaonable discovery. That takes time. If she wants to limit the trial, she might take a look at the proposed testimony of the DOJ’s remedy witnesses, and save everyone’s time by not permitting much of it, as irrelevant to preventing future RICO violations.

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