Kessler Bars Intervenors Access to Protected Documents; Lack of Centralized Exhibit List Cited; Action May Delay Filing

August 20, 2005 1:44 pm by Gene Borio

Several snarky issues have arisen concerning the exhibits and testimonies which were relied upon by the parties in their Final Proposed Findings of Fact filed last Monday, 8/15.

The issues arose because of the new 3rd party to the suit, the Health Groups which on July 22 were granted intervenor status. Defense subsequently sought to exclude the Intervenors from access to protected documents.

Thus, on 8/10, Judge Kessler filed order #997, which barred Intervenors from “accessing sealed materials or information protected from disclosure under Order #7, Order #36, Order #394, and Order #638.”

On 8/16, the health group Intervenors requested a 1-week extension of their 8/24/05 deadline to file a post-trial brief. The Intervenors claimed they needed the time to:

1. Review both parties’ massive 8/15/05 Final Proposed Findings of Fact.

2. Obtain copies of the “CD-ROMs that contained the admitted testimony and exhibits upon which [the parties] rely in their Proposed Findings.”

It is this last item that is most intriguing.

Because the Defense has succeeded in preventing the Intervenors from access to sealed or protected documents, and the DOJ claims it “is impossible at this late stage for the United States to segregate its confidential materials from non-confidential materials, ” Judge Kessler in order #997 ruled that the Intervenors will just have to cool their heels “until a redacted public version is filed.”

This will be an interesting document, as no other such list of exhibits/testimonies has been filed in this case.

In fact, say the Intervenors in their request for an extension, “there is no centralized repository of admitted Exhibits, nor even a list of such Exhibits.” Even worse, “because many of the Exhibits were included in ‘Bulky Filings,’ they are not even available on PACER.”

The apparent lack of a centralized repository–or even list– of admitted exhibits is puzzling, if not a little unnerving.

There exists one attempt at an exhibit repository (presumably of non-protected exhibits), which is open to the press at ftp.ap.org/tobacco. Haphazardly organized, it still contains many of the admitted exhibits. However, despite repeated requests from tobaccoontrial.com, it has not been updated since April 22 of this year.

**———————————————————

Texts and Links to the relevant documents follow in chronological order:

8/4/05 Defense Motion To Clarify Order #987 To Exclude Plaintiff-intervenors From Obtaining Access To Sealed And Confidential Information

8/10/05 Order 997 barring Intervenors access to protected exhibits

8/16/05 Intervenors’ Request for 1-week Extension

**———————————————————

8/4/05 Defense Motion To Clarify Order #987 To Exclude Plaintiff-intervenors From Obtaining Access To Sealed And Confidential Information

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: ) None

**———————————————————

JOINT DEFENDANTS’ CORRECTED MOTION TO CLARIFY ORDER #987 TO EXCLUDE PLAINTIFF-INTERVENORS FROM OBTAINING ACCESS TO SEALED AND CONFIDENTIAL INFORMATION, INCORPORATED MEMORANDUM OF POINTS AND AUTHORITIES, AND REQUEST FOR EXPEDITED CONSIDERATION

Joint Defendants hereby move to clarify Order #987 to establish that the Plaintiff- Intervenors are not entitled to, and shall not receive, access to any sealed materials or confidential information protected from disclosure under Order #7, Order #36, Order #394, and Order #638, including any materials containing such information. In support of this motion, Defendants state as follows:

Plaintiff-Intervenors moved to intervene in this action “for the very limited purpose of being heard on the issue of the permissible and appropriate remedies in this case, should the Court find the defendants liable for the unlawful activities alleged in the Amended Complaint by the plaintiff United States.” Motion to Intervene at 1. In granting this motion in Order #987 over Joint Defendants’ strenuous and continuing objection, the Court stated:

[I]t is important to make it very clear that Intervenors will be held to their representation that

they do not seek to present any additional evidence in this case, nor do they seek to test any of the evidence that has already been produced . . . they seek only the opportunity to submit a brief and

2

reply brief . . . pursuant to the same schedule that now applies to the Government Plaintiff — i.e., a post-trial brief on August 24, 2005 and a reply brief on September 19, 2005 — and to be heard on this issue should the Court entertain further arguments on it. The Proposed Intervenors are also willing to limit the number of pages in the opening brief and reply brief, as the Court deems appropriate.

Mot. to Intervene, p. 2.

Mem. Op. to Order #987 at 3-4.

Having been given this inch, Plaintiff-Intervenors seek to make it a mile. They have refused to consent to the entry of an order that would bar them from accessing sealed materials or information protected from disclosure under Order #7, Order #36, Order #394, and Order #638.

The Government has indicated that it intends to serve its sealed August 15 proposed findings on the Plaintiff-Intervenors.

This is simply inconsistent with the Plaintiff-Intervenors’ representations, to which the Court has stated they will be held. Specifically, if, as Plaintiff-Intervenors represented, “they do not seek to present any additional evidence in this case, nor do they seek to test any of the evidence that has already been produced” (Motion to Intervene at 2), then it is unnecessary for them to have access to sealed materials and Defendants’ confidential information. The “very limited” role that the Court has permitted Plaintiff-Intervenors in this case is the right to submit legal briefs on remedies, and nothing more.

Even more important, permitting Plaintiff-Intervenors to have access to Defendants’ confidential information would violate the plain language of the various protective orders in this case. The references to “parties” in those orders clearly contemplated only Defendants and the United States — not post-trial intervenors who represented that they only seek to file legal briefs on remedies. Indeed, specific terms of these orders expressly exclude Plaintiff-Intervenors. For

3

example, Order #36 defines a “Designated Attorney” who may have access to Defendants’ Category I confidential information “as an attorney who is a full-time employee of the Department of Justice, who represents the United States in the present litigation, and who has a need to review Category I information for purposes of the present litigation.” Order #36, ¶ 5(a). Access to Defendants’ Category II confidential information is restricted to specific Justice Department attorneys and those authorized by them. See id., ¶ 10(f)(ii). These orders clearly do not permit access to Defendants’ confidential information by the Plaintiff-Intervenors.

Joint Defendants face the prospect of real, palpable prejudice if the Plaintiff-Intervenors are given access to sealed and confidential information. As this Court undoubtedly recalls, the protective orders in this case were the result of protracted and largely unsuccessful negotiations, which made it necessary for the Court to issue the rulings resulting in Order #36, Order #394, and Order #638. The context for all of those hard-fought battles was the scope and degree of protection to be accorded Defendants’ confidential information in the hands of the Government. An issue not addressed in the course of those battles was the scope and degree of protection to be accorded Defendants’ confidential information in the hands of private anti-tobacco organizations and activists. This raises an entirely different set of concerns, including concerns about the security of confidential information in the hands of anti-tobacco organization dedicated to the eradication of the industry.1

Indeed, this is one of the fundamental problems with Plaintiff-Intervenors’ insistence that they are entitled to access to Defendants’ confidential information. Rather than simply seeking

—–

1 For example, in the briefing that ultimately led to Order #36, Joint Defendants set forth their concerns regarding past violations of confidentiality orders in litigation to illustrate the need for the additional, more stringent protections they sought. See Joint Defendants’ Memorandum of Law in Support of Their Motion for an Addendum to Protective Order for Highly Confidential Information at 14-19. Joint Defendants do not accuse Plaintiff- Intervenors of involvement in these prior violations, but the possibility of such violations remains a matter of concern for Joint Defendants.

**———————————————————

4

status as amicus curiae — which is all that would have been necessary to accomplish their stated goal of filing legal briefs on remedies issues — Plaintiff-Intervenors have entered the case posttrial and now assert rights as purported parties invoking procedures designed for a very different set of circumstances. Perhaps by design, “limited” intervention has become the Trojan Horse by which Plaintiff-Intervenors have injected themselves into this case and now seek information to confidential information otherwise denied to them and other members of the public.

Joint Defendants thus bring this motion to clarify that the Court did not intend to give Plaintiff-Intervenors access to Defendants’ confidential information and sealed materials in Order #987. Specifically, Joint Defendants seek an order instructing the Government and Plaintiff- Intervenors that:

• No party is to serve Plaintiff-Intervenors with any filing under seal or otherwise provide Plaintiff-Intervenors with access to sealed materials or information protected from disclosure under Order #7, Order #36, Order #394, and Order #638.

• Plaintiff-Intervenors are barred from accessing sealed materials or information protected from disclosure under Order #7, Order #36, Order #394, and Order #638.

Alternatively, if the Court contemplates giving Plaintiff-Intervenors access to Defendants’ confidential information and sealed materials, then Joint Defendants ask that the Court do so only under additional conditions that will be strictly enforced. There are a substantial number of sealed materials, and a large amount of confidential information produced in this action. While Joint Defendants do not believe that Plaintiff-Intervenors need access to any of it in order to file legal briefs, they clearly do not need access to all of it — and their refusal to agree to any limitation on their right of access speaks volumes about their intentions. No plausible reason

**———————————————————

5

exists why Plaintiff-Intervenors would claim access to all such confidential information if their only reason in intervening were to submit legal briefs on remedies.

Accordingly, if the Court is unwilling to bar any access by Plaintiff-Intervenors to Defendants’ confidential information, Joint Defendants request that any such access be limited as follows:

• To no more than two attorneys of record representing Plaintiff-Intervenors in this action, who (1) may not be officers or members of the Plaintiff-Intervenors’ organizations; (2) must sign and agree to be bound by the confidentiality acknowledgements of Order #7 and Order #36; and (3) must maintain any confidential information they receive as required by those Orders.

• To the confidential information contained in the parties’ upcoming proposed findings filed under seal, provided that such confidential information shall only be disclosed to Plaintiff-Intervenors pursuant to an Order of the Court. Before the Court enters such an Order, Joint Defendants shall be permitted to file a praecipe under seal (without service on the Plaintiff- Intervenors) explaining why the disclosure of confidential information in the proposed findings is unnecessary to permit the Plaintiff-Intervenors to submit legal briefs on remedies. Any such praecipe shall be filed by August 19, 2005.

Pursuant to LCvR 7(m), the parties have met and conferred on this motion. The Government opposes the motion. The Plaintiff-Intervenors do not consent to the entry of Joint Defendants’ proposed order, but are willing to file a response to this motion on an expedited basis, within one day of its filing.

In light of the impending August 15 deadline for the parties to file and serve their proposed findings, Defendants request expedited consideration of this motion.

6

DATED: August 4, 2005 Respectfully submitted,

/s/ Jane E. Chang 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/ Jane E. Chang 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

7

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/ Jane E. Chang for ______________________

David E. Mendelson (D.C. Bar No. 471863)

KlRKLAND & 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

Renee D. Honigberg

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/ Jane E. Chang 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

8

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/ Jane E. Chang for ______________________

Bruce G. Sheffler

David L. Wallace

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/ Jane E. Chang for ______________________

Steven Klugman

Steven S. Michaels

DEBEVOISE & PLIMPTON LLP

9 1 9 Third Avenue

New York, New York 10022

Telephone: (212) 909-6000

9

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/ Jane E. Chang 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.

**———————————————————

Text of:

8/10/05 Order 997 barring Intervenors access to protected exhibits

**———————————————————

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)

**———————————————————

O R D E R #997

Upon consideration of Joint Defendants’ Motion to Clarify Order #987 to Exclude Plaintiff-Intervenors from Obtaining Access to Sealed and Confidential Information, Plaintiff-Intervenors’ Opposition, the United States’ Opposition, the Joint Defendants’ Reply, and the entire record herein, it is this 10 day of August th 2005:

ORDERED that the Motion is hereby granted; and it is further

ORDERED that no party is to serve Plaintiff-Intervenors with any filing under seal or otherwise provide Plaintiff-Intervenors with access to sealed materials or information protected from disclosure under Order #7, Order #36, Order #394, and Order #638;1

—–

1 The Government claims that it “is impossible at this late stage for the United States to segregate its confidential materials from non-confidential materials” in order to serve the Plaintiff- Intervenors with only the non-confidential materials. United States’ Opp’n at 2. If that is the case, Plaintiff-Intervenors will have to wait to be served until a redacted public version is filed.

**———————————————————

2

and it is further

ORDERED that Plaintiff-Intervenors are barred from accessing sealed materials or information protected from disclosure under Order #7, Order #36, Order #394, and Order #638.

____/s/_______________________

GLADYS KESSLER

United States District Judge

Copies to: attorneys on record via ECF

**———————————————————

Text of: 8/16/05 Intervenors’s Request for 1-week Extension

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA,

Plaintiff,

and

TOBACCO-FREE KIDS ACTION FUND, AMERICAN CANCER SOCIETY, AMERICAN HEART ASSOCIATION, AMERICAN LUNG ASSOCIATION, AMERICANS FOR NONSMOKERS’ RIGHTS, and NATIONAL AFRICAN AMERICAN TOBACCO PREVENTION NETWORK,

Plaintiff-Intervenors,

V.

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

Defendants.

Civil Action No. 99-CV-2496 (GK)

**———————————————————

PLAINTIFF-INTERVENORS’ MOTION FOR SHORT EXTENSION OF TIME 1N WHICH TO FILE POST-TRIAL BRIEF, REQUEST FOR AN EXPEDITED RULING AND SUPPORTING MEMORANDUM

Plaintiff-Intervenors respectfully seek a one week extension of time to file their post-trial brief, from August 24 to August 31, 2005, so that they will have time to obtain and review the non-confidential Exhibits that form the basis of the parties’ Proposed Findings of Fact, and will also have sufficient time to review and refer to those Proposed Findings in their brief. The United States government has represented that it does not oppose the requested extension; the
defendants take no position on this request if the Government takes an extra week to file its brief, but defendants oppose this motion if the Government does not do so. Although the Intervenors apologize to the Court for having to request this additional time, for the reasons set forth below, they respectfully request that their motion be granted.

1. When the Plaintiff-Intervenors moved to intervene in this case and represented to the Court that they would file their post-trial brief on August 24, 2005, the Government and defendants were then required to file their respective Proposed Findings of Fact by August 9, 2005, and they were also required to include in those Proposed Findings citations (hyperlinks) to “any testimony and exhibits upon which they rely which have already been admitted into evidence.” See Order # 964 (subsequently stayed by Order 964-A). However, pursuant to an oral motion by defendants, on August 1, 2005 the Court extended the date for filing the Proposed Findings of Fact to August 15, 2005. Order # 994. The Court also apparently agreed to accept from the parties CD-roms that contained the admitted testimony and exhibits upon which they rely in their Proposed Findings.

Although Plaintiff-Intervenors had already been granted party status when the defendants requested their extension of time, they were not privy to the defendants’ oral motion for the extension, and hence had no opportunity to advise the Court that this might make it difficult for them to meet their previous commitment to file their brief on August 24. However, the Government apparently did make its own similar concern known to the Court, and, accordingly, in its Order granting the defendants the extension, the Court made clear that, “after submission of Joint Defendants’ Final Proposed Findings of Fact,” should the Government need an additional week to file its brief, it could file a praecipe notifying the Court of such action. Order

2

**———————————————————

#994. Therefore, because the Plaintiff-Intervenors were served yesterday, August 15, 2005, with the parties’ Proposed Findings of Fact, they hereby request an additional week to file their brief.

2. Additional time is needed to allow the Plaintiff-Intervenors to obtain the nonconfidential Exhibits upon which the parties rely in the Proposed Findings of Fact that they filed yesterday. Thus, when Plaintiff-Intervenors moved to intervene, they believed that, if they were granted intervention, they would at least have access to the non-confidential Exhibits that the parties are relying on in this case. However, since they became parties, the Intervenors have learned that there is no centralized repository of admitted Exhibits, nor even a list of such Exhibits. This has made it difficult for the Intervenors to ensure that, in support of the remedies they will be advocating to the Court, they accurately cite the records that have in fact been admitted into evidence during the course of this case.

Moreover, although the Government and defendants have apparently exchanged copies of the Exhibits upon which they rely in their Proposed Findings of Fact, to date, neither the Government nor the defendants has provided the Intervenors with any of the non-confidential Exhibits. See also Order # 997, note 1 (anticipating that the Plaintiff-Intervenors would in fact be “served” with such materials). Therefore, to allow the Intervenors some opportunity to obtain copies of non-confidential Exhibits that are relevant to the arguments they wish to make in their brief, and that will also allow them to respond to the defendants’ Proposed Findings of Fact on remedies issues, the Plaintiff-Intervenors request a modest amount of additional time to file their opening post-trial brief

3

**———————————————————

3. Additional time is also needed to allow the Intervenors to review and, to the
extent possible, verify, evaluate, and respond to the numerous Proposed Findings of Fact
asserted by the defendants that are relevant to the remedies issues in this case. See, Joint
Defendants’ Proposed Findings of Fact, Chapter 13, pp. 1-244. The Intervenors also need time
to review the Government’s Proposed Findings of Fact, so that they can cite relevant findings in
their brief. Indeed, referring to the Government’s Proposed Findings should allow the
Intervenors to avoid some duplication in their brief.

4. The Government does not oppose this motion. The defendants have requested
that we represent their position as follows:

If the Government seeks a one-week extension

The Joint Defendants state that they opposed, and continue to oppose, the Plaintiff-Intervenors’ involvement in this action as improper under law. The Joint Defendants take no position on the Plaintiff-Intervenors’ request for a oneweek extension.

If the Government does not seek a one-week extension

The Joint Defendants state they opposed, and continue to oppose, the Plaintiff-Intervenors’ involvement in this action as improper under law. Further, because the Government has not sought the one-week extension to which it alone is entitled under Order #964-A, the Joint Defendants oppose a one-week extension for the Plaintiff-Intervenors’ brief.

5. Although the defendants continue to disagree with the Court’s ruling granting intervention, the fact of the matter is that the Plaintiff-Intervenors are now parties to this case who are entitled to file a post-trial brief on the remedies issue. Accordingly, while they understand that their role has been limited to this specific purpose, they should at least be afforded the opportunity to obtain the same non-confidential Exhibits that the other parties have already served on each other, and that are extremely relevant to the arguments they have been

4

**———————————————————

permitted to make to the Court, and to have a modest amount of time to review those Exhibits. On the other hand, the defendants will not be prejudiced in any way if the requested extension is granted, since the Court previously made clear that if the Government took an additional week to file its opening brief after the defendants filed their Proposed Findings of Fact on August 15, the defendants could likewise file a praecipe notifying the Court that they would take an additional week to file their opening brief and opening brief on affirmative defenses, and that the other briefing dates could similarly be extended by a week. $ Order 994, & 2.

5. Plaintiff-Intervenors also respectfully request an expedited ruling on this motion, since, if it is not granted, they may have to make immediate arrangements to seek copies of nonconfidential Exhibits relied on by the Government and the defendants directly from the clerk’s office. Indeed, because many of the Exhibits were included in “Bulky Filings,” they are not even available on PACER

CONCLUSION

For the foregoing reasons, Plaintiff-Intervenors’ motion for a one week extension of time to file their opening post-trial brief should be granted. Respectfully submitted,

Kattherine A. Meyer

(D.C. Bar No. 244301)

Howard M. Crystal

(D.C. Bar No. 446189)

Ethan Carson Eddy

(California Bar No. 237214)

MEYER GLITZENSTEIN & CRYSTAL

1601 Connecticut Avenue, Suite 700

5

**———————————————————

Washington, DC 20009 202-588-5206

OF COUNSEL:

David C. Viadeck

(D.C. Bar No. 945063)

Georgetown University Law Center

600 New Jersey Avenue, N.W.

Washington, D.C. 20001

202 - 662-9535

Date: August 16, 2005

6

Leave a Reply

The primary purpose of this site is to provide information in a timely manner. Postings should be informative. The usual rules apply: No libel, no profanity, no personal abuse, keep it on topic, and short.

If you are scheduled as a court witness, CHECK with your lawyer before posting anything here!