Tobacco On Trial

Apr 3, 2005, 6:49 PM On Friday, while Judge Kessler began pondering the Defense’s intention to subpoena documents from remedies witness Matt Myers and the Campaign for Tobacco-Free Kids, DOJ filed its arguments against the move.

DOJ argued that the Court has already ruled on this issue–and in fact, had found for the Defense. At which point, DOJ had immediately scheduled a Deposition for April 9 (since canceled by Defense), and had committed to providing the Defense with the proper documents 3 days prior to the deposition.

The DOJ filing states, somewhat humorously, IMHO,

Admittedly, this is an unusual case in many respects, but . . . . it is highly inappropriate for the prevailing party to request that the Court reconsider decisions it has made in that party’s favor . . . . It is difficult to conceive of a situation where a litigant, having prevailed upon its own request, could actually suggest that its due process rights could be affected by a denial of the Court to reconsider (for a third time) its request for discovery.

Judge Kessler has reached the point in this case–having issued over 900 orders in 5 years–where her previous rulings are often being laid out, pinned to a board, dissected, and their unattached organs held up to support each side’s tightly-reasoned argument. The torturous probing of all her previous orders could prove a nightmare for her if she hasn’t, over all those years and orders, been more brilliant than 20 of the country’s top lawyers (and their support staff) poring over each one.

Following is the text of the DOJ Filing on Rule 45 Subpoenas for Myers/CTFK (PDF)

**———————————————————

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA,

Plaintiff,

PHILIP MORRIS USA INC.,

f/k/a PHILIP MORRIS INC., et al.,

Defendants.

Civil Action No. v. : 99-2496 (GK)

Next Scheduled Court Appearance: Trial (ongoing)

**———————————————————

UNITED STATES’ SUPPLEMENTAL POINTS AND AUTHORITIES ON RULE 45 SUBPOENAS TO MATTHEW MYERS AND THE CAMPAIGN FOR TOBACCO-FREE KIDS

INTRODUCTION

The Court has indicated that it is considering defendants’ requests for compulsory document production under Court authority from two non-parties: Campaign for Tobacco-Free Kids and Matthew Myers, who is President and CEO of the Campaign. The issue was raised in Court on Thursday, March 31. Today, noting that the Court had taken under advisement defendants’ motion for leave to serve subpoenas duces tecum upon Mr. Myers and the Campaign, defendants cancelled Mr. Myers deposition, which had been scheduled, at their request, for April 9, 2005. The United States submits this supplemental authority in support of its position that issuance of the requested subpoenas would not serve the interests of justice and is not necessary to achieve due process and fairness.

I. Defendants’ Request Has Already been Ruled Upon by the Court

When this matter was discussed in Court on Thursday, the Court inquired as to whether defendants’ request for Rule 45 subpoenas was new. Defendants suggested that the request for Rule 45 subpoenas was a new request, one not previously heard, considered, or decided by the

**———————————————————

2

Court. That is incorrect, and the transcript makes clear that in the context of discussing what documents should be produced in advance of Mr. Myers’s deposition, the issue was whether subpoenas should issue, or whether the Court should apply a less formal and more expeditious method to get the same material produced that could be subpoenaed1:

MR. REDGRAVE: The first witness, You Honor, that’s a new witness. I annotated my chart here. I will start with Mr. Myers again because he is a new witness.

Very simply, I’m going to ask you what I think we need and that is a description with particularity of Mr. Myers’ anticipated testimony.

Secondly, an identification and production of those documents in the possession, custody or control of the United States or Mr.

Myers or the Campaign for Tobacco Free Kids, which is where he’s at right now, he’s president and CEO, I believe, that are relevant to Mr. Myers’ anticipated testimony which the government knows what it is and we don’t.

And then the deposition, and we do have that deposition scheduled, so that’s going to come up, but we do need the other two in advance of the deposition. And as Your Honor has already noted, in a normal situation we would have had the other discovery tools of interrogatories and document requests and even to the third parties.

And you may recall with respect to third parties, whether we’re talking University of Michigan or Campaign for Tobacco Free Kids, Your Honor ruled – or set a schedule where, by after a certain date, we were not allowed to serve third-party subpoenas.

So if we were back then, we could have gotten this information through the available discovery means. We should get it now. This is a very quick way to do it.

Tr. at 16970-71.

Although the subpoenas contain even more burdensome and oppressive requests, it is nonetheless clear that the essential information sought in the proposed subpoenas is the same as the information sought by oral request of defense counsel. Itemizing the request in a different

—

1It is clear that even if the United States had identified Mr. Myers as a witness three years ago, defendants would not have been able to serve subpoenas under the Court’s orders; Order #65 and Order #110 prevented that. The briefing that resulted in Order #110 involved defendants’ opposition to any extension of time (sought by the United States) to conduct necessary third party discovery.

**———————————————————

3

written form–subpoenas–does not make anything different except the form. The request for document discovery remains the same one resolved (twice, at least) by the trial Court. Positively no reason has been given by defendants for insisting upon reconsideration of a request that they already had prevailed upon: The Court ordered the United States to produce Mr. Myers for a deposition and to produce certain documents over the objection of the United States.

Admittedly, this is an unusual case in many respects, but given the enormous workload of the Court and the parties, it is highly inappropriate for the prevailing party to request that the Court reconsider decisions it has made in that party’s favor, as is being done here. Defendants’ actions are excessive and grossly wasteful of the time resources of the Court and the financial resources of all involved.

II. Defendants’ Due Process Rights Are Not Adversely Affected

It is difficult to conceive of a situation where a litigant, having prevailed upon its own request, could actually suggest that its due process rights could be affected by a denial of the Court to reconsider (for a third time) its request for discovery. Yet that is the situation presented to the Court by defendants here, with defendants actually suggesting that if the Court denies them the opportunity to serve subpoenas on third parties, their “due process rights” have been adversely affected. This claim is frivolous, but because much has been said of “due process,” for purposes of a full record, the United States will address it.

Claims of due process are not new in this case, as the Court is well aware. In evaluating the requests of the parties, the Court has entered numerous orders in this case emphasizing that delay is unwelcome and that the trial date will not be jeopardized. Indeed, the United States was denied critical discovery from defendants’ law firms when the court adopted Report and Recommendation #132. Even though the United States’ motion to compel production of certain

**———————————————————

4

law firm files had been filed some 21 months before the trial date, the Court noted that the potential delay to proceedings surrounding the requested discovery was a reason enough to deny the request. United States v. Philip Morris USA, Inc., 219 F.R.D. 203 (D.D.C. 2004). Similarly, here, if the Court is to permit defendants to engage in formal Rule 45 discovery, proceedings will almost certainly be delayed, if not completely halted for a period of time.

As counsel for the United States noted on Thursday, Mr. Myers advised that his organization could not be subjected to the cost and burden of responding to the subpoenas.

Under Rule 45, a non-party required to produce documents or material is protected against significant expense resulting from involuntary assistance to the Court. The service of subpoenas, if authorized, likely will lead to yet another spirited motions practice already characteristic of this case, consisting possibly of motions to compel, motions for protective order, motions to quash, and the like. These motions will require the Court’s time to resolve before we can proceed with discovery, and if that discovery is needed for the defendants’ preparation to respond to the United States’ remedies case, if our current schedule is to be kept, the motions and decisions on those motions necessarily will have to be expedited.

Defendants have received due process; they have had notice and an opportunity to respond. First, the United States gave notice of its remedies witness list, and defendants requested additional time to conduct discovery; that request was granted. Furthermore, the Court authorized the deposition of Mr. Myers, and the Court has granted defendants’ earlier formulated request for documents. Defendants requested that a mediator be assigned to assist with discovery requests, and the Court has assigned a mediator. On this record, the Court could simply enter a minute order denying defendants’ most recent request, its request to invade by

**———————————————————

5

subpoena the files of Matthew Myers and the Campaign for Tobacco-Free Kids. Denial of this request certainly would not amount to an abuse of the Court’s discretion.

III. Defendants Own Files Contain Records Relevant To Mr. Myers Work

Defendants are of course aware of Mr. Myers’s participation in negotiations with them preceding the June 1997 Proposed Resolution, which preceded the Master Settlement Agreement. Defendants in this case were participants in the negotiations that produced both the June 1997 Proposed Resolution and the MSA and thus have full access to the materials considered in those negotiations. Moreover, before discovery closed, defendants deposed numerous witnesses–including former White House officials–regarding their knowledge of the Proposed Resolution. To be sure, defendants were aware of Mr. Myers’s participation many years ago, and they had the opportunity to try to access any related records long ago.

Mr. Myers will appear for a deposition completely prepared to testify to the matters he will discuss at trial, and defense counsel will have a full and fair opportunity–their due process–to examine him. Nothing more is required under these circumstances.

CONCLUSION

For the reasons stated above and before the Court on March 31, 2005, the United States respectfully submits that any compulsory document production directed to the Campaign for

**———————————————————

6

Tobacco-Free Kids and to Matthew Myers must be denied.

Dated: April 1, 2005

Respectfully submitted,

Washington, D.C.

PETER D. KEISLER

Assistant Attorney General

/s/ Sharon Y. Eubanks

SHARON Y. EUBANKS (DC Bar # 420147)

Director, Tobacco Litigation Team

/s/ Stephen D. Brody

STEPHEN D. BRODY (DC Bar # 459263)

Deputy Director, Tobacco Litigation Team

/s/ Renée Brooker

RENÉE BROOKER (D.C. Bar # 430159)

Assistant Director, Tobacco Litigation Team

United States Department of Justice

Post Office Box 14524

Ben Franklin Station

Washington, DC 20044-4524

(202) 616-4185

Attorneys for Plaintiff

United States of America

This entry was posted on Sunday, April 3rd, 2005 at 5:46 pm and is filed under Notes. You can follow any responses to this entry through the RSS 2.0 feed. You can skip to the end and leave a response. Pinging is currently not allowed.