Tobacco On Trial

Apr 10, 2005, 11:50 PM

On Friday, April 8, Judge Kessler denied Defendants’ request to serve subpoenas duces tecum (ie, for documents) on remedies witness Matt Myers and The Campaign for Tobacco-Free Kids.

The Defense badly erred last March 24 in court, when they represented they were requesting all they really needed in regards to discovery for Mr. Myers’ testimony. Judge Kessler held them to it.

She also ruled that even had Mr. Myers been designated as a witness in the normal course of the trial, the deadline for third-party discovery would have expired.

As to their charges of “bias” on the part of Mr. Myers, Judge Kessler ruled that Mr. Myers’ and CTFK’s positions are no secret, and that,

“the Defendants have more than adequate information and ammunition on this topic. Given the public positions of Mr. Myers, access to the internet, private investigators, and other resources available to Defendants, they will suffer no prejudice from being denied third-party discovery”

Downloads:

PDF file of Order 913

PDF file of Order 913 Memo

Text versions follow:

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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)

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MEMORANDUM OPINION

The Defendants have asked leave of Court to serve subpoenas duces tecum upon a newly designated remedies fact witness, Matthew Myers, and his employer, The Campaign for Tobacco-Free Kids. Upon consideration of that Motion, the United States’ Supplemental Points and Authorities relating to that Motion, and Defendants’ Motion to Strike and Response to United States’ Supplemental Points and Authorities, the Court concludes that both of Defendants’ Motions should be denied for the following reasons.

1. On March 24, 2005, the Defendants raised in open Court the issue of discovery pertaining to Government remedies witness newly designated pursuant to Orders #894 and #898. As counsel stated, “I’m just going to ask you what I think we need.” Tr. 16971, March 24, 2005. Counsel then identified three specific

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requests he was making.1 Those three requests were clearly presented as the totality of discovery needed for Mr. Myers. The Court addressed each of them and ruled on them. In short, no request was made on March 24, 2005 for third-party discovery, nor was it suggested that such a request was in the offing. It is simply too late to now re-argue those issues as Defendants have tried to do.

2. Even if Mr. Myers had been designated as a remedies witness during the ordinary course of witness designation, Defendants would not be entitled to third-party discovery. That deadline has long since expired.

3. Defendants’ concerns regarding lack of information about Mr. Myers, and particularly his “bias,” ring very hollow. He is a well known public figure who has long played a prominent role in advocating for greater regulation of tobacco companies in order to deter youth smoking. He has testified before Congress, he has written articles, he has made numerous speeches all over the country. None of this is any secret. Insofar as his strongly-held programatic views on issues of youth smoking are deemed to be “bias,” the Defendants have more than adequate information and

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1 They were “a description with particularity of Mr. Myers’ 1 anticipated testimony”; “an identification and production of those documents in the possession, custody and control of the United States or Mr. Myers or The Campaign for Tobacco-Free Kids . . . that are relevant to Mr. Myers’ anticipated testimony”; and “the deposition.” Id.

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ammunition on this topic. Given the public positions of Mr. Myers, access to the internet, private investigators, and other resources available to Defendants, they will suffer no prejudice from being denied third-party discovery.

April 8, 2005 /s/

Gladys Kessler

United States District Judge

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ORDER #913

Upon consideration of Defendants’ request to serve subpoenas duces tecum, Defendants’ Motion to Strike, the Government’s Supplemental Points & Authorities, and the entire record herein, it is this 8th day of April, 2005, hereby

ORDERED that Defendants’ request for leave to serve subpoenas duces tecum is denied; and it is further

ORDERED that Defendants’ Motion to Strike is denied.

/s/

Gladys Kessler

United States District Judge

Copies via ECF to all counsel of record

This entry was posted on Sunday, April 10th, 2005 at 10:49 pm and is filed under Notes. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.