Simultaneous or Staggered? Fight over PFOFs

June 7, 2005 5:53 am by Gene Borio

Back in January, during DOJ lawyer Carolyn Hahn’s examination of Lorillard VP and General Counsel Ronald Milstein, B&W’s David Bernick objected to a document that had “no nexus to the case.” On the contrary, Ms. Hahn said, “it was cited in our PFOFs.”

Mr. Bernick has had very few moments of befuddlement in the 9 months of this case, but this was one of them. “Your fa–your WHATT??” he asked.

“Our PFOFs,” said Ms. Hahn matter-of-factly. “Our Proposed Findings of Fact.”

It’s interesting that DOJ should come up with this little shorthand for these submissions from both parties, and that the Defense, with its hundreds of people behind the scenes, did not.

The issue: DOJ wants both parties to file their first PFOFs simultaneously, by July 25, 2005. Defense would like staggered submissions, wherein the DOJ would file its PFOF, then Defense reply to the points it feels are still in dispute, and the DOJ have a final rebuttal. This process would complete by August 31, 2005.

The final pre-trial PFOF from the DOJ is actually a remarkable achievement. It’s a clean, clear and massive (2,543 unredacted pages) blow-by-blow account of almost all incidents of alleged industry malfeasance for the last 50 years. Let’s just take an example, Racketeering Act#18:

80. Racketeering Act No. 18: In or about 1968, the exact date being unknown, defendants PHILIP MORRIS, REYNOLDS, BROWN & WILLIAMSON, LORILLARD, AMERICAN, and co-conspirators, through defendant TOBACCO INSTITUTE, did knowingly distribute reprints of an article written by Stanley Frank and originally published in True magazine, and caused copies of said document to be sent and delivered by the United States Mails, addressed to various physicians and civic leaders. This article disputed the link between smoking and disease, and was distributed anonymously.

81. This communication misrepresented and concealed the link between smoking and disease; concealed the relationship between the author of the article and Defendants; and concealed that Defendants caused the article to be reprinted and distributed. This communication was for the purpose of executing the scheme to defraud because its false statements and misrepresentations constitute the principal gravamen of the scheme to defraud. TIMN462375- 2380 (U.S. Ex. 21,660); 85872281-2281 (U.S. Ex. 21,618); 2017002404-2410 (U.S. Ex. 21,619); 2017002404-2410 (U.S. Ex. 21,619); 85872282-2282 (U.S. Ex. 21,622); 2017002404-2410 (U.S. Ex. 21,619); TITX0000183-0183 (U.S. Ex. 21,623); 85872283-2283 (U.S. Ex. 21,624); 85872284-2286 (U.S. Ex. 21,626); TIMN0123336-3336 (U.S. Ex. 21,628); TIMN462646-2646 (U.S. Ex. 22,977).

But have all these alleged Racketeering Acts (148, according to the PFOF) been proven in court? There is a new version due now “Post-Trial Proposed Findings of Fact” which will address which “facts” the parties agree–and don’t agree–have been legally established.

The Defense calls simultaneous submissions “an invitation to chaos.”

In addition, there are numerous rulings that have yet to be made by Judge Kessler, rulings which will affect the PFOFs. By DOJ’s count,

[T]here are approximately 8000 exhibits pending admission with 161 prior testimony witnesses, but objections have been lodged to only 2700 of those exhibits.

There will be interplay between these rulings and the submissions of PFOFs. According to the Defense’s staggered plan, the final-final Post-Trial PFOFs will not be submitted before January 6, 2006.

DOJ argues the Defense plan will allow the record “to grow cold over many months.”

A few quotes from the Defense’s May 27, 2005 filing:

This case presents a massive but amorphous set of facts, issues, and legal standards . . . 235 live and prior witnesses, 44,000 pages of live and prior testimony, and 13,000 exhibits. . . . Few if any courts have faced a task more onerous than that this Court faces in wading through and resolving the myriad legal and factual issues presented, and creating a clear and coherent record for the inevitable appeals that will follow.

Under plaintiffs’ proposal of simultaneous filings of massive proposed findings of fact — before the Court even completes its rulings on prior testimony and exhibits — the parties’ positions will be like two ships passing in the night, forcing the court to wade through hundreds if not thousands of pages of material in an attempt to match up the arguments and the evidence . . . . [Simultaneous submissions] will place the burden squarely on the parties to identify what issues are and are not in dispute, to join issue directly on those that are, and to focus the Court directly on those legal and factual issues that require resolution. . . . the Court would be presented with a coherent set of filings that identify what issues are not in dispute, directly join issue on those that are, and clearly identify those legal and factual issues requiring resolution by the Court. Staggered filings will also make it easier for this Court to create a clear record for appeal,

Defendants have proposed that Plaintiff’s initial submission be due 60 days after the Court has finished ruling on the parties’ prior testimony designations, with Defendants’ filing to follow 60 days after that, and a final filing by Plaintiff 30 days after Defendants’ filing, with the parties’ trial briefs to be submitted 30 days thereafter.

LINKS:

www.usdoj.gov/civil/cases…

US PROPOSED FINDINGS OF FACT (2,543 pages; 15.5 MB) (Redacted)

May 27, 2005 JD re Findings of Fact Submissions

May 27, 2005 DOJ re Findings of Fact Submissions

June 1, 2005 JD re Findings of Fact Submissions

June 1, 2005 DOJ re Findings of Fact Submissions

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Text versions of recent (PDF) filings follow:

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May 27, 2005 JD re Findings of Fact Submissions

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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)

Next Scheduled Court Appearance: Trial (ongoing)

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JOINT DEFENDANTS’ PROPOSAL REGARDING THE FORMAT AND TIME OF THE PARTIES’ POST-TRIAL PROPOSED FINDINGS OF FACT

This Court and the parties are coming to the end of a trial that has lasted more than eight months and has involved more than 235 live and prior witnesses, 44,000 pages of live and prior testimony, and 13,000 exhibits. This case is brought under a statute that involves complex legal standards and presents a multitude of complicated evidentiary issues. It has been transformed mid-trial from an action in which Plaintiff primarily sought $280 billion in disgorgement to one in which Plaintiff seeks $130 billion for a national smoking cessation program, as well as other relief not previously requested or seriously pressed. Few if any courts have faced a task more onerous than that this Court faces in wading through and resolving the myriad legal and factual issues presented, and creating a clear and coherent record for the inevitable appeals that will follow.

With this in mind, the only approach that offers this Court any hope of addressing and resolving these issues in a clear and efficient fashion is that proposed by Joint Defendants, namely, requiring staggered filings of proposed findings of fact, which would be submitted after this Court has made its final evidentiary rulings, followed by the submission of trial briefs by the parties setting forth their positions on the application of the law to these facts.1 The parties’ competing proposals for assisting the Court in resolving these issues in a clear and efficient manner could not be more different, and the differences could hardly matter more. Under plaintiffs’ proposal of simultaneous filings of massive proposed findings of fact — before the Court even completes its rulings on prior testimony and exhibits — the parties’ positions will be like two ships passing in the night, forcing the court to wade through hundreds if not thousands of pages of material in an attempt to match up the arguments and the evidence. Defendants’

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1 Joint Defendants agree with Plaintiff’s proposal to substitute trial briefs for proposed conclusions of law. Joint Defendants believe that trial briefs will allow a clearer presentation of the legal issues for the Court. Also, as discussed below, such trial briefs could effectively double as memoranda in support of Rule 52(c) motions, at least to the extent such motions may be deemed necessary to preserve the record for appeal.

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proposal of staggered filings, on the other hand, will place the burden squarely on the parties to identify what issues are and are not in dispute, to join issue directly on those that are, and to focus the Court directly on those legal and factual issues that require resolution.

Specifically, Plaintiff, as the party with the burden of proof, would first define the evidence on which it relies to support the proposed findings of fact that comprise its prima facie case. Defendants would then respond to that evidence and those proposed findings, identifying where the parties are in agreement as to the facts, where they are not (and why), and offering whatever additional evidence and proposed findings are necessary to support their defense. Plaintiff would then have a final opportunity to respond to the new evidence and proposed findings submitted by Defendants.2 And if evidence has been miscited — which is inevitable given the massive record in this case — staggered filings would permit the opposing party to bring that to the Court’s attention, too. After this, the parties would submit their trial briefs applying the law to their proposed facts. In this way, the Court would be presented with a coherent set of filings that identify what issues are not in dispute, directly join issue on those that are, and clearly identify those legal and factual issues requiring resolution by the Court. Staggered filings will also make it easier for this Court to create a clear record for appeal, by identifying which findings have been challenged and which have not. While Fed. R. Civ. P. 52(b) allows the parties to challenge the sufficiency of the evidence supporting this Court’s findings even if parties did not raise their objections with this Court, the D.C. Circuit has emphasized the desirability of alerting the trial court to such issues in advance of appeal. See FTC v. Beatrice Foods Co., 587 F.2d 1225 (D.C. Cir. 1978). Staggered findings will make much

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2 The Court could either require a reply or make it optional for Plaintiff. Joint Defendants only note that they are not opposed to giving Plaintiff an opportunity to respond to their submission, if the Court agrees that this could help clarify the matters at issue.

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clearer not only where the parties disagree with each other, but where they disagree with whatever the Court finally finds.

Conversely, Plaintiff’s proposal for the simultaneous filing of massive proposed findings of fact is an invitation to chaos. At this point, Defendants cannot possibly anticipate and address in a simultaneous filing the evidence and proposed findings of fact on which the Government will rely in support of its claims. While this might be feasible in a simpler case involving relatively clear legal standards and a limited set of issues, this is manifestly not such a case. This case presents a massive but amorphous set of facts, issues, and legal standards. As a result of a variety of developments, including but by no means limited to the Court of Appeals’ ruling, how these facts, issues, and standards fit together has been largely transformed since the parties filed their pre-trial proposed findings of fact and trial began.3 Plaintiff’s proposal for simultaneous filing, rather than clarifying the issues before this Court, will instead result in two massive submissions, possibly based on a tentative evidentiary record subject to change, that fail to join issue on the many matters that need to be resolved. Far from assisting this Court in efficiently addressing and resolving the issues before it, such an approach will infinitely prolong this task by requiring the Court itself to search through and identify the many points of contention between the parties, before attempting to resolve them.4

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3 For this reason, it is obvious that any suggestion that the parties might be able simply to “annotate” their prior proposed findings ignores the realities of this case. As discussed above, the evidence and issues in this case have been largely transformed from what they were pre-trial and at the outset of trial. Indeed, the parties’ final pretrial proposed findings demonstrate the fundamental defect from which Plaintiff’s present simultaneous filing proposal suffers: Because they were filed simultaneously, they only generally and imprecisely join issue on the matters before this Court. To attempt to annotate them would leave the Court with two massive, complicated, annotated documents that bear little relationship to each other or the case as it has developed.

4 Even if the Court were, over Joint Defendants’ strenuous objections, to adopt Plaintiff’s proposal for simultaneous filings of proposed findings of fact based on a tentative evidentiary record, Plaintiff’s proposed July deadline is wholly unrealistic. The trial record in this case is massive, as are the parties’ prior testimony designations and exhibits. Moreover, Defendants must coordinate with multiple counsel and clients in order to make a unitary filing. Accordingly, no deadline before August 31, 2005 would allow enough time to accomplish this task.

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In addition to requiring staggered filings so that the parties clearly join issue, it is important that the parties have sufficient time to collate and organize the evidentiary record into a coherent format in their proposed findings, after that evidentiary record is closed. Again, whatever front-end gains in timing the Court might achieve by requiring early submissions before ruling on prior testimony submissions will be more than offset by the confusion later engendered by such a process, when the Court tries to work through and determine whether evidence cited by a party has been admitted or excluded from the case. And no system of notation — “admission pending” or otherwise — will avoid this. This is particularly true given that, as the record stands at present, more than half of the testimony and exhibits offered in this case have been submitted in the form of prior testimony designations that await rulings.

Requiring submission of proposed findings based on such a tentative evidentiary record would invite a later problem of gargantuan proportions. Given that the Court must, at some point, address and resolve objections to prior testimony, Joint Defendants respectfully submit that this task should be undertaken before the submission of proposed findings so as to determine the scope of the record and avoid later confusion.

For this reason, Joint Defendants have proposed that Plaintiff’s initial submission be due 60 days after the Court has finished ruling on the parties’ prior testimony designations, with Defendants’ filing to follow 60 days after that, and a final filing by Plaintiff 30 days after Defendants’ filing, with the parties’ trial briefs to be submitted 30 days thereafter.5 This proposal

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5 One potential advantage to substituting a trial brief for proposed conclusions of law is that such a trial brief could be used to support a motion brought pursuant to Fed. R. Civ. P. 52(c), if necessary to preserve the record for appeal or otherwise. Rule 52(c) is the bench-trial equivalent of a Rule 50(a) motion for judgment as a matter of law in a jury trial. Unlike Rule 50(a), however, Rule 52 does not appear to require that such a motion be filed in order to preserve issues for appeal, and some courts have so held. See, e.g., Colonial Penn Ins. v. Market Planners Ins. Agency Inc., 157 F.3d 1032, 1036 n.3 (5th Cir. 1998) (noting while in a jury trial a party must move for judgment as a matter of law under Rule 50(a) to preserve sufficiency of the evidence for appellate review, “nothing indicates that a similar rule applies to an appeal of the sufficiency of evidence to support findings or sufficiency of findings to support a judgment following a bench trial”). The D.C. Circuit, however, has not addressed the issue.

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is far better suited to assist this Court in meeting its obligations under the law than is Plaintiff’s proposal for simultaneous filings based on a tentative evidentiary record. Fed. R. Civ. P. 52(a) requires that “[i]n all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon, and judgment shall be entered pursuant to Rule 58.” The requirement of specificity aids the trial court by ensuring a careful connection between the evidence in the record and each finding of fact and conclusion of law, as well as providing findings explicit enough to enable appellate courts to carry out a meaningful review. See, e.g., Doll v. Brown, 75 F.3d 1200, 1204-05 (7th Cir. 1996). The importance of detailed findings that address the myriad issues is especially important in this case, where there are numerous factual determinations to be made and where — should the Court find that Defendants violated RICO and that there exists a reasonable likelihood of future RICO violations — any injunctive relief awarded must be narrowly tailored to remedy the specific harm shown. See, e.g., United States v. Microsoft Corp., 253 F.3d 34, 104 (D.C. Cir. 2001); Alpo Petfoods Inc. v. Ralston Purina Co., 913 F.2d 958, 969 (D.C. Cir. 1990). By ensuring that the parties’ filings join issue in a clear and coherent fashion, Joint Defendants’ proposal for staggered filings will more than make up at the back-end for any loss of time there may be at the front-end in comparison with Plaintiff’s proposal for simultaneous filings.

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DATED: May 27, 2005

Respectfully submitted,

/s/ Matthew A. Campbell for _________________

Timothy M. Broas (D.C. Bar No. 391145)

WINSTON & STRAWN LLP

1700 K Street, N.W.

Washington, D.C. 20006-3817

Telephone: (202) 282-5000

Fax: (202) 282-5100

Dan K. Webb

Thomas J. Frederick

WINSTON & STRAWN LLP

35 West Wacker Drive

Chicago, Illinois 60601-9703

Telephone: (312) 558-5600

Fax: (312) 558-5700

Theodore V. Wells, Jr. (D.C. Bar No. 468934)

James L. Brochin (D.C. Bar No. 455456)

PAUL, WEISS, RIFKIND, WHARTON &

GARRISON LLP

1285 Avenue of the Americas

New York, New York 10019-6064

Telephone: (212) 373-3000

Fax: (212) 757-3990

Attorneys for Defendants

Altria Group Inc. and Philip Morris USA Inc

/s/ Matthew A. Campbell for _________________

Robert F. McDermott (D.C. Bar No. 261164)

Peter J. Biersteker (D.C. Bar No. 358108)

Jonathan M. Redgrave (D.C. Bar No. 474288)

JONES DAY

51 Louisiana Avenue, N. W.

Washington, D.C. 20001-2113

Telephone: (202) 879-3939

Fax: (202) 626-1700

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Robert C. Weber

Paul G. Crist

JONES DAY

North Point

901 Lakeside Avenue

Cleveland, Ohio 44114-1190

Telephone: (216) 586-3939

Fax: (216) 579-0212

Attorneys for Defendant

R. J. Reynolds Tobacco Company

/s/ Matthew A. Campbell for _________________

Kenneth N. Bass (D.C. Bar No. 386070)

KIRKLAND & ELLIS LLP

655 15th Street, N.W., Suite 1200

Washington, D.C. 20005

Telephone: (202) 879-5000

Fax: (202) 879-5200

David M. Bernick

Stephen R. Patton

KIRKLAND & ELLIS LLP

200 East Randolph Drive, Suite 5900

Chicago, Illinois 60601

Telephone: (312) 861-2000

Fax: (312) 861-2200

Attorneys for Defendant

Brown & Williamson Tobacco Holdings, Inc.

/s/ Matthew A. Campbell for _________________

Edward C. Schmidt (D.C. Bar No. 199315)

Matthew D. Schwartz (D.C. Bar No. 436619)

THOMPSON COBURN LLP

1909 K Street, N.W.

Suite 600

Washington, D.C. 20006

Telephone: (202) 585-6900

Fax: (314) 552-7597

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J. William Newbold

Michael B. Minton

Richard P. Cassetta (D.C. Bar No. 457781)

THOMPSON COBURN LLP

One US Bank Plaza, Suite 3500

St. Louis, Missouri 63101-1693

Telephone: (314) 552-6000

Fax: (314) 552-7597

Gene E. Voigts

Richard L. Gray

SHOOK, HARDY & BACON LLP

2555 Grand Blvd.

Kansas City, Missouri 64108-2613

Telephone: (816) 474-6550

Fax: (816) 421-2708

Attorneys for Defendant

Lorillard Tobacco Company

/s/ Matthew A. Campbell for _________________

David L. Wallace

Jessica L. Zellner

CHADBOURNE & PARKE LLP

30 Rockefeller Plaza, 34th Floor

New York, New York 10112-0219

Telephone: (212) 408-5100

Attorneys for Defendant

British American Tobacco (Investments)

Limited (f/k/a British-American Tobacco

Company Limited)

/s/ Matthew A. Campbell for _________________

Steven Klugman

Steven S. Michaels

DEBEVOISE & PLIMPTON LLP

9 1 9 Third Avenue

New York, New York 10022

Telephone: (212) 909-6000

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J. William Newbold

Michael B. Minton

Richard P. Cassetta (D.C. Bar No. 457781)

Jason A. Wheeler

THOMPSON COBURN

One US Bank Plaza, Suite 3500

St. Louis, Missouri 63101-1693

Telephone: (314) 552-6000

Attorneys for Defendant

The Council for Tobacco Research-U.S.A., Inc.

/s/ Matthew A. Campbell for _________________

James A. Goold

COVINGTON & BURLING

120 1 Pennsylvania Avenue, N. W.

Washington, D.C. 20004-2401

Telephone: (202) 662-6000

Attorneys for Defendant

The Tobacco Institute, Inc.

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May 27, 2005 DOJ re Findings of Fact Submissions

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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)

Next Scheduled Court Appearance: Trial (ongoing)

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UNITED STATES’ PROPOSAL REGARDING POST-TRIAL SUBMISSIONS

There is no dispute that this case involves a multitude of factual and legal issues spanning many years and implicating a vast amount of evidence. But while the record in this case is large and there are many issues to be resolved by the Court, there is little doubt at this stage about what those issues are. Perhaps as opposed to other cases, here, given the extensive discovery and pre-trial briefing, over eight months of direct and cross examination, three mid-trial summation arguments, and closing arguments scheduled for June 7-9, 2005, there is little fear that the opposing parties’ submissions will be “two ships passing in the night.” Moreover, to the extent that the parties do not squarely meet the issues raised by the other, it is highly unlikely, given the years of experience this case has produced, that staggered briefing would cure any such failure.

Of equal importance, there should be no dispute that this case involves important issues that deserve finality. As the Court recognized, “[b]ecause of the significance of the allegations, the enormity of the remedies being sought, and the need for the Government to be vindicated or the tobacco companies to be exonerated, the American public and the parties deserve to have this case tried expeditiously.” Order 230, at 2. So too, should an opinion of judgment be issued as

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expeditiously as is possible. Thus, the parties should not create any post trial delay that would interfere with the Court’s ability to do so. Moreover, practical concerns for an expeditious process, as is recognized by the Manual for Complex Litigation, are not insignificant. It states, “[w]hatever time savings may be realized by a bench trial can easily be lost if the case is not decided promptly. Decisions become more difficult as the record grows cold with the passage of time, and long delay undermines public confidence in the justice system.” Manual for Complex Litigation – Third (2001), §22.52. Therefore, the United States respectfully proposes a post trial process that endeavors to provide reasonable time limits, while maintaining time efficiency.

A. Post Trial Proposed Findings of Fact

1. Process

The parties agree that it is important to provide the Court with accurate and helpful post trial proposed findings of fact in an effort to assist the Court in accomplishing the significant task of writing its opinion in this case. To do so, it will be incumbent upon the parties to update the proposed findings of fact filed on July 1, 2004 to conform to the evidence that was adduced at trial. To be sure, in order to create a meaningful and useful work product, the proposed findings of fact will have to be re-crafted to fairly present the facts that were proven at trial. In some instances, that will mean that various substantive sections, or portions thereof, will be rewritten, added to, detracted from, or even eliminated altogether. A fair assessment of this process, however, cannot ignore that other sections, or portions thereof, of the pre-trial proposed findings will not change at all, save incorporation of proper trial citation. In other words, there are certainly instances where the evidence unfolded exactly as the parties anticipated it would.

As is always critical in drafting proposed findings of fact, consideration of all the evidence established during the trial must be accomplished in any fair analysis. Thus, the parties

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will necessarily need to cite to and reference evidence presented through prior testimony and related exhibits in writing their respective proposed findings. Given the competing factor of time, however, the United States submits that it is not necessary for the Court to complete its review of all the prior testimony and related exhibits and provide rulings on the objections lodged thereto in advance of the parties’ submission of their proposed findings of fact. When referencing prior testimony or exhibits not yet admitted, the parties should simply indicate in the citation for the fact that the evidence is pending admission, with objection, if appropriate.

Cited that way, there will be no ambiguity about what cited evidence is still pending admission and the Court will be able to reference the eventual rulings on the prior testimony and exhibits when considering that evidence.2 Just as the parties will certainly reference the evidence adduced through the prior testimony and related exhibits during closing arguments – in advance of any rulings on its admission – so too should the parties reference the evidence in their proposed findings of fact. If, thereafter, the Court determines that certain of the relied upon evidence will not be admitted, the parties will be no worse off for having cited to it in either their proposed findings or closing arguments. Certainly, the parties will support their findings of fact with all relevant evidence adduced, and, therefore, exclusion of any given prior testimony or related exhibit may well not negate the establishment of the fact.

2. Timing

The United States proposes that each party file their proposed findings of fact no later than 5:00 p.m., July 25, 2005. The proposed findings should be filed simultaneously by the parties. That deadline provides the parties forty-five days from completion of closing arguments

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2 According to our count, there are approximately 8000 exhibits pending admission with 161 prior testimony witnesses, but objections have been lodged to only 2700 of those exhibits; the United States understands that the Court intends to address as many of those outstanding objections as possible before post-trial findings are due.

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(and 60 days from the filing of this proposal) to draft their proposed findings of fact. Despite the massive record in this case, a July 25 deadline should provide the parties ample time to draft proposed findings of fact. As noted earlier, the parties have already provided the Court with two sets of preliminary proposed findings of fact and, although those proposed findings will certainly be modified to comport with the evidence adduced at trial, the pre-trial findings will undoubtedly provide a solid framework from which to work.

As opposed to a smaller, more manageable litigation, in this instance the unwieldy size of the record may serve to minimize rather than maximize the need for post trial delay to draft proposed findings. Here, by necessity, the parties are forced to tackle the process by broad issue, certain of which were tried to completion months ago. Furthermore, notwithstanding the massive record, this trial is not unlike others in the sense that no matter what deadline is set, the parties are certain to fill the time working on the proposed findings. Thus, because of the overriding need for finality in this case, together with the practical issues facing both the parties and the Court, July 25 is a reasonable deadline that should legitimately address all concerns.

Likewise, the parties should submit simultaneous proposed findings of fact. As set out at length above, there should be no legitimate assertion at this stage in these voluminous proceedings that the parties will not meet the claims asserted and evidence adduced through discovery, trial, and accompanying, substantive argument.

B. Post Trial Briefs

1. Process

The United States further proposes that the parties file post trial briefs. As the Court suggested during discussion of this issue, it may well be appropriate for such post trial briefs to replace the filing of proposed conclusions of law. Certainly, the briefs should incorporate both

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the relevant legal standards and reference the facts that have been established during trial. The briefs should consist of the parties’ arguments regarding the various issues that the Court will ultimately need to decide, supported by the relevant facts and law. They should not exceed 350 pages in length.3 The parties should cite evidence proffered through prior testimony and exhibits in the same way as was suggested for the proposed findings of fact, i.e., by indicating that the evidence is pending admission and whether there is any objection pending with respect to the evidence.

2. Timing

Pursuant to the same rationale that applies to the proposed findings of fact, the parties should simultaneously file their post trial briefs no later than 5:00 p.m. on July 25, 2005.

C. Proffer of “Orphan” Exhibits

Finally, the United States proposes that, in accordance with Order 471B, Section VIII (Exhibits), at 4, each party should be permitted to proffer no more than 150 authentic, nonhearsay, “orphan” exhibits, on the basis of their relevancy and importance. Each party should proffer these orphan exhibits no later than 5:00 p.m. on June 16, 2005. Opposing parties should be permitted to file objections, if any, to these exhibits no later than 5:00 p.m. on June 20, 2005, and any responses thereto should be filed by 5:00 p.m. on June 24, 2005.

CONCLUSION

For the foregoing reasons, the Court should adopt the proposal set forth by the United States and enter the attached proposed order.

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3 The limit of 350 pages should be enforced as a limit of 163,100 words. In order to insure uniformity, the briefs should be on 8 1/2 by 11 inch paper. The text should be double-spaced, but quotations more than two lines long may be indented and single-spaced. Headings and footnotes may be single-spaced, as well. Margins should be a least one inch on all four sides. The typeface should be proportionally spaced. Headings, footnotes, and quotations should count toward the word and page limitations and should comport with the margin and typeface restrictions described above. These guidelines have been adapted from Fed. R. App. Proc. 32.

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Dated: May 27, 2005

Washington, D.C.

Respectfully submitted,

PETER D. KEISLER

Assistant Attorney General

/s/ Sharon Y. Eubanks

SHARON Y. EUBANKS (D.C. Bar No. 420147)

Director, Tobacco Litigation Team

/s/ Stephen D. Brody

STEPHEN D. BRODY (D.C. Bar No. 459263)

Deputy Director, Tobacco Litigation Team

/s/ Renée Brooker

RENÉE BROOKER (D.C. Bar No. 430159)

Assistant Director, Tobacco Litigation Team

/s/ Linda M. McMahon

LINDA M. McMAHON (D.C. Bar No. 446130)

Trial Attorney, Tobacco Litigation Team

Torts Branch, Civil Division

United States Department of Justice

Post Office Box 14524

Washington, D.C. 20044-4524

Telephone: (202) 616-4185

Attorneys for Plaintiff

United States of America

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June 1, 2005 DOJ re Findings of Fact Submissions

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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)

Next Scheduled Court Appearance: Trial (ongoing)

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RESPONSE TO JOINT DEFENDANTS’ PROPOSAL REGARDING THE FORMAT AND TIME OF THE PARTIES’ POST-TRIAL PROPOSED FINDINGS OF FACT

Defendants argue that “the only approach that offers this Court any hope of addressing and resolving these issues in a clear and efficient fashion is that proposed by Joint Defendants, namely, requiring staggered filings of proposed findings of fact, which would be submitted after this Court has made its final evidentiary rulings, followed by the submission of trial briefs by the parties setting forth their positions on the application of the law to these facts.” Defendants’ Proposal at 1. Pursuant to this proposal, it is contemplated that the Court will not endeavor to resolve the disputed factual and legal issues presented in this case until after it has the opportunity to analyze and absorb the post-trial proposed findings of fact and trial briefs submitted by the parties. Nevertheless, Defendants propose a schedule whereby, even if, by way of example, the Court were able to finalize rulings on all of the objections made to the evidence proffered with prior testimony witnesses by July 8, 2005,1 which may well be an unrealistic date,

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1 July 8 – chosen somewhat arbitrarily for discussion purposes – is one month after the tentative final date for closing arguments. It cannot be disregarded, however, that if the

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the Court would not begin to work on the opinion for this case until January, 2006.2

Any proposal that does not require final post-trial submissions from the parties until – at the earliest – January 6, 2006, as is advocated by the Defendants here, should be viewed as nothing more than a blatant plea for delay – delay that is not warranted and should not be tolerated. Not only would such a dramatic post-trial delay impede the public’s need for finality in this case, but it would create tremendous practical concerns ignored by Defendants’ proposal.

For example, Defendants fail to address the issue that the Court will inevitably be disserved by allowing the record to grow cold for many months while the Court presumably resumes its normal, busy docket. Moreover, by postponing the drafting of the opinion, as Defendants suggest, the Court would be forced to fit what all parties expect to be the enormous task of resolving the legal and factual disputes at issue in this case into the Court’s schedule as it will exist in 2006.

On the other hand, the United States’ proposal contemplates the parties’ ability – after nine months of litigating this matter – to sufficiently frame the disputed factual and legal issues for the Court by July 25, 2005. The United States is confident that the Court, after sitting

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United States puts on a rebuttal case, closing arguments may well be postponed. Moreover, given the Court’s schedule, a one month estimate may amount to a practical impossibility.

Assuming such rulings are issued later than July 8, the date which Defendants propose final submissions would likewise be later than January 6, 2006.

2 Ironically, although Defendants’ maintain that the parties’ cannot be expected to make comprehensive arguments about the evidence adduced or legal issues in dispute until months after the close of trial, in arguing against the United States’ request for a short delay in presentation of closing arguments, counsel for Defendants maintained, just yesterday, that “No one is going to have the ultimate masterpiece. I don’t know how critical it is, given nine months of trial. . . We have been working very hard to meet the schedule for next week and there is no reason, given the prior summations that have taken place, why the government can’t put together their submissions for next week.” Trial Tr. at 22431-32. Defendants two arguments are inherently inconsistent.

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through nine months of evidence – not to mention having ruled on significant pretrial and midtrial motions, will certainly be able to make effective use of the parties’ post-trial, simultaneously filed submissions. At the same time, the United States’ proposal balances the policy and practical needs for efficiency and finality. The United States therefore respectfully requests that the Court reject Defendants’ proposal in favor of the United States’ proposal for post-trial submissions. A proposed order was attached to our submission filed on May 27, 2005.

Dated: June 1, 2005

Washington, D.C.

Respectfully submitted,

PETER D. KEISLER

Assistant Attorney General

/s/ Sharon Y. Eubanks

SHARON Y. EUBANKS (D.C. Bar No. 420147)

Director, Tobacco Litigation Team

/s/ Stephen D. Brody

STEPHEN D. BRODY (D.C. Bar No. 459263)

Deputy Director, Tobacco Litigation Team

/s/ Renée Brooker

RENÉE BROOKER (D.C. Bar No. 430159)

Assistant Director, Tobacco Litigation Team

/s/ Linda M. McMahon

LINDA M. McMAHON (D.C. Bar No. 446130)

Trial Attorney, Tobacco Litigation Team

Torts Branch, Civil Division

United States Department of Justice

Post Office Box 14524

Washington, D.C. 20044-4524

Telephone: (202) 616-4185

Attorneys for Plaintiff

United States of America

**———————————————————

June 1, 2005 JD re Findings of Fact Submissions

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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)

Next Scheduled Court Appearance: Trial (ongoing)

**———————————————————

JOINT DEFENDANTS’ REPLY IN SUPPORT OF THEIR PROPOSAL REGARDING THE FORMAT AND TIME OF THE PARTIES’ POST-TRIAL PROPOSED FINDINGS OF FACT

Without prior notice to Defendants or leave of Court — but with the baseless allegations of bad-faith by Defendants that typify many of the Government’s filings — the Government filed a response immediately after court today to Joint Defendants’ proposal submitted last Friday regarding the format and timing of the parties’ post-trial submissions. In its response, the Government charges that Defendants’ proposal for post-trial submissions “should be viewed as nothing more than a blatant plea for delay — delay that is not warranted and should not be tolerated.” United States’ Resp. at 2. Because of the importance of the pending issue and seriousness of the charge, Joint Defendants are compelled to reply briefly.

The Government’s charge that Joint Defendants’ proposal is made for purposes of delay is utterly ridiculous. As Joint Defendants detailed in their opening submission, “Defendants’ proposal of staggered filings . . . will place the burden squarely on the parties to identify what issues are and are not in dispute, to join issue directly on those that are, and to focus the Court on those legal and factual issues that require resolution.” Joint Defendants’ Mem. at 1-2. The Government claims that, under Joint Defendants’ proposal, “the Court will inevitably be disserved by allowing the record to grow cold for many months while the Court presumably resumes its normal, busy docket.” United States’ Resp. at 2. This is an assertion uninformed by experience or common sense. The primary practical issue facing this Court is not the record “growing cold”; it is how the Court can best make sense and address the massive tangle of legal and factual issues presented by one of the most extensive trial records in history. It is virtually self-obvious that staggering the parties’ filings so they are directly responsive to each other is far preferable to simultaneous filings for this purpose.

Joint Defendants do not discount the need for the Court to proceed expeditiously to resolve these issues and make a final determination in this case. But, as the saying goes, haste makes waste. Not only should it be the obligation of the Government, as the party with the burden of proof in this case, to go first and detail the evidence on which it relies to support its claims, but simultaneous filings are certain to result in a second round of filings — whether or not anticipated in the schedule — where the opposing sides detail what they consider to be the overstatements, misstatements, and inevitable errors in their opponent’s submission. Indeed, the Court almost certainly would want such responsive submissions to make sense of the enormous but not directly responsive filings that would result from simultaneous submissions. Better to stagger the parties’ submissions at the outset — ideally, after the Court has ruled on prior testimony submissions — as suggested by Joint Defendants.

In their opening submission, Joint Defendants set forth what they believe is a sensible schedule for post-trial submissions, given the enormity of the task facing the parties and the Court. Staggering the parties’ submissions as proposed by Joint Defendants is essential to a sensible and orderly presentation of the parties’ claims and defenses in this case. Any other

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approach threatens chaos, as well as the delay that the Government wrongly charges is Joint Defendants’ goal.

DATED: June 1, 2005 Respectfully submitted,

/s/ Matthew A. Campbell for _________________

Timothy M. Broas (D.C. Bar No. 391145)

WINSTON & STRAWN LLP

1700 K Street, N.W.

Washington, D.C. 20006-3817

Telephone: (202) 282-5000

Fax: (202) 282-5100

Dan K. Webb

Thomas J. Frederick

WINSTON & STRAWN LLP

35 West Wacker Drive

Chicago, Illinois 60601-9703

Telephone: (312) 558-5600

Fax: (312) 558-5700

Theodore V. Wells, Jr. (D.C. Bar No. 468934)

James L. Brochin (D.C. Bar No. 455456)

PAUL, WEISS, RIFKIND, WHARTON &

GARRISON LLP

1285 Avenue of the Americas

New York, New York 10019-6064

Telephone: (212) 373-3000

Fax: (212) 757-3990

Attorneys for Defendants

Altria Group Inc. and Philip Morris USA Inc

/s/ Matthew A. Campbell for _________________

Robert F. McDermott (D.C. Bar No. 261164)

Peter J. Biersteker (D.C. Bar No. 358108)

Jonathan M. Redgrave (D.C. Bar No. 474288)

JONES DAY

51 Louisiana Avenue, N. W.

Washington, D.C. 20001-2113

Telephone: (202) 879-3939

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Fax: (202) 626-1700

Robert C. Weber

Paul G. Crist

JONES DAY

North Point

901 Lakeside Avenue

Cleveland, Ohio 44114-1190

Telephone: (216) 586-3939

Fax: (216) 579-0212

Attorneys for Defendant

R. J. Reynolds Tobacco Company

/s/ Matthew A. Campbell for _________________

Kenneth N. Bass (D.C. Bar No. 386070)

KIRKLAND & ELLIS LLP

655 15th Street, N.W., Suite 1200

Washington, D.C. 20005

Telephone: (202) 879-5000

Fax: (202) 879-5200

David M. Bernick

Stephen R. Patton

KIRKLAND & ELLIS LLP

200 East Randolph Drive, Suite 5900

Chicago, Illinois 60601

Telephone: (312) 861-2000

Fax: (312) 861-2200

Attorneys for Defendant

Brown & Williamson Tobacco Holdings, Inc.

/s/ Matthew A. Campbell for _________________

Edward C. Schmidt (D.C. Bar No. 199315)

Matthew D. Schwartz (D.C. Bar No. 436619)

THOMPSON COBURN LLP

1909 K Street, N.W.

Suite 600

Washington, D.C. 20006

Telephone: (202) 585-6900

Fax: (314) 552-7597

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J. William Newbold

Michael B. Minton

Richard P. Cassetta (D.C. Bar No. 457781)

THOMPSON COBURN LLP

One US Bank Plaza, Suite 3500

St. Louis, Missouri 63101-1693

Telephone: (314) 552-6000

Fax: (314) 552-7597

Gene E. Voigts

Richard L. Gray

SHOOK, HARDY & BACON LLP

2555 Grand Blvd.

Kansas City, Missouri 64108-2613

Telephone: (816) 474-6550

Fax: (816) 421-2708

Attorneys for Defendant

Lorillard Tobacco Company

/s/ Matthew A. Campbell for _________________

David L. Wallace

Jessica L. Zellner

CHADBOURNE & PARKE LLP

30 Rockefeller Plaza, 34th Floor

New York, New York 10112-0219

Telephone: (212) 408-5100

Attorneys for Defendant

British American Tobacco (Investments)

Limited (f/k/a British-American Tobacco

Company Limited)

/s/ Matthew A. Campbell for _________________

Steven Klugman

Steven S. Michaels

DEBEVOISE & PLIMPTON LLP

9 1 9 Third Avenue

New York, New York 10022

Telephone: (212) 909-6000

J. William Newbold

Michael B. Minton

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Richard P. Cassetta (D.C. Bar No. 457781)

Jason A. Wheeler

THOMPSON COBURN

One US Bank Plaza, Suite 3500

St. Louis, Missouri 63101-1693

Telephone: (314) 552-6000

Attorneys for Defendant

The Council for Tobacco Research-U.S.A., Inc.

/s/ Matthew A. Campbell for _________________

James A. Goold

COVINGTON & BURLING

120 1 Pennsylvania Avenue, N. W.

Washington, D.C. 20004-2401

Telephone: (202) 662-6000

Attorneys for Defendant

The Tobacco Institute, Inc.

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