Intervenors: University Asks to Intervene on Secret Documents

August 28, 2005 12:29 am by Gene Borio

The University of California has asked Judge Kessler to be allowed to file a brief on issues surrounding public access to tobacco industry documents, since “public disclosure of documents” is one of the remedies requested by the DOJ (Section V. F. of DOJ’s Final Proposed Findings of Fact).

The 8/24/05 motion by the Regents of the UC reads,

[T]he Library at the University of California at San Francisco has over the past decade devoted extensive resources to the goal of collecting and providing permanent public access to all tobacco industry documents that have become available as a result of prior settlements or otherwise. The University has obtained and cataloged many millions of pages of tobacco industry documents during this period, and likely has more experience than any other entity with the practical and technical problems that can interfere with public access to such documents. As set forth in the proposed brief, many of these problems can be avoided if appropriate provisions relating to document disclosure are included in the Court’s Judgment and Order from the outset. The Court and the parties will benefit from the University’s informed perspective on these issues. . . .

The proposed brief discusses the public and scholarly value of document disclosure. It also proposes certain technical and process revisions to the Government’s proposed document disclosure provisions, which, for the reasons discussed the proposed brief, will enhance the goal of public access to the disclosed documents.

UC notes that Defendants have said they will oppose the motion.

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Full Text of: 8/24/05 UC Regents’ Request to Intervene

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Case No. 99-CV-02496 (GK)

UNITED STATES OF AMERICA,

Plaintiff,

V.

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

Defendants.

MOTION OF THE REGENTS OF THE UNIVERSITY OF CALIFORNIA FOR LEAVE TO FILE AMICUS CURIAE BRIEF IN SUPPORT OF THE UNITED STATES’ PROPOSED FINAL JUDGMENT AND ORDER AND STATEMENT IN SUPPORT THEREOF

Regents of the University of California

1111 Franklin St.

Oakland, CA 94607-5200

The Regents of the University of California (”the University”), a public corporation existing pursuant to Article IX, section 9 of the California Constitution, hereby moves for leave to file the accompanying amicus curiae brief in support of Section IV.F of the Proposed Judgment and Order submitted by the United States of America in this action. Section IV.F requires defendants to publicly disclose and post on the Internet, certain documents. As detailed in Section II, “Interest of Amicus,” of The Regents’ proposed brief, the Library at the University of California at San Francisco has over the past decade devoted extensive resources to the goal of collecting and providing permanent public access to all tobacco industry documents that have become available as a result of prior settlements or otherwise. The University has obtained and cataloged many millions of pages of tobacco industry documents during this period, and likely has more experience than any other entity with the practical and technical problems that can interfere with public access to such documents. As set forth in the proposed brief, many of these problems can be avoided if appropriate provisions relating to document disclosure are included in the Court’s Judgment and Order from the outset. The Court and the parties will benefit from the University’s informed perspective on these issues.

The proposed brief discusses the public and scholarly value of document disclosure. It also proposes certain technical and process revisions to the Government’s proposed document disclosure provisions, which, for the reasons discussed the proposed brief, will enhance the goal of public access to the disclosed documents.

Pursuant to LCvR 7(m)1), counsel for the University has discussed this Motion with counsel for the Joint Defendants, Liggett Group, Inc., the United States, and the Intervenor. The United States and Intervenors have stated that they will not oppose the Motion. Joint

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Defendants and Liggett have stated that they will oppose the Motion.

Dated: August 24, 2005

JAMES E. HOLST #34654

CHRISTOPHER M. PATTI #118283

University of California

Office of the General Counsel

1111 Franklin Street, 8th Floor

Oakland, CA 94607-5200

Telephone: 510-987-9800

Facsimile: 510-987-9757

christopher.pattiucop.edu

PETER LEFF, DC Bar # 457476

O’DONNELL, SCHWARTZ & ANDERSON, P.C.

1300 L Street N.W., Suite 1200

Washington, D.C. 20005-4126

Telephone: 202-898-1707

Facsimile: 202 682-9276

pleffodsa1aw.com

By:

/s/ Peter Leff

Peter Leff

Attorneys for Amicus Curiae

THE REGENTS OF THE UNIVERSITY OF CALIFORNIA

137229.1

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Excerpt From: 8/25/05 DOJ’s Post-Trial Brief: pp 241-243

a. Public disclosure of documents produced or used in litigation or administrative actions

Requiring Defendants to make public the documents that they produce or use in litigation or administrative actions, with certain safeguards to protect privileged and confidential trade secret information, is the first step towards using disclosure to prevent and restrain Defendants from engaging in future fraudulent activities. Several Defendants are currently subject to existing document depository and website obligations, and they cite these current (but shortly expiring) obligations as preventing them from engaging in future unlawful conduct. For example, in a section of their proposed findings of fact asserting that the MSA “Address[es] the Misconduct Alleged by the Government,” Joint Defendants state that the MSA “contains comprehensive provisions for public disclosure of documents. Under these provisions, Defendants are required to establish at their own expense a series of Internet websites making publicly available tens of millions of pages of internal documents.” JD FF, ch. 12, ¶ 20 (citations omitted).146 Compelling such ongoing disclosures in the future will thus help prevent future fraudulent activity. Capital Gains Research Bureau, 375 U.S. at 191-92.

Defendants’ current Minnesota and Guildford document depository obligations expire shortly: in May 2008 for the Minnesota and Guildford Depositories under the Minnesota settlement, and in June 2010 for document websites under the MSA. Minnesota consent judgment § VII(C)-(E) (JD-093326) (A); MSA § IV at 36-41 (JD-045158) (A). Moreover, Liggett and Altria are not subject to any document obligations at all, either depository or website; and BATCo has no document website obligations. US FF § V.F, ¶¶ 289, 295.

Document depositories provide hard copies of documents and thus reduce Defendants’ ability to remove documents from public access. However, the Court needs to ensure that sufficient public access is provided to document depositories to safeguard their role, and ensure that independent third parties run document depositories. Public access to the Guildford Depository is severely restricted, with only one organization allowed access per day, and no more than six visitors per day, and copying requested documents often takes weeks or months. Health Committee, U.K. House of Commons, The Tobacco Industry and the Health Risks of Smoking, vol. 1 (2000), (¶¶ 234, 237), US 93249 at 1282-1283 (O); US 88132 at 7994 (A).147

Document websites have several significant features that document depositories do not. Collections of tobacco documents placed on the internet following the litigation of the 1990s, unlike the majority of non-digitized archival materials, are generally searchable through the web. In addition, not all members of the public are able to travel to Minnesota to access the Minnesota Depository, so a document website increases the availability of the documents to the public. Brandt WD, 28:1-8; Szymanczyk WD, 202:4-6. As the Supreme Court has observed, “as the experience of the 1920’s and 1930’s amply reveals, the darkness and ignorance of commercial secrecy are the conditions upon which predatory practices best thrive.” Capital Gains Research Bureau, 375 U.S. at 200.

To make their public document disclosures fully usable, Defendants must also be compelled to provide meaningful finding tools. See State ex rel. Humphrey v. Philip Morris Inc., 606 N.W.2d 676, 692 (Minn. App. 2000) (“There is compelling public interest in the indices, which will assist the government and others researching the content of the millions of documents produced in this case”). Both document depositories (of hard copies of documents) and document websites (of documents freely accessible to the public via the Internet) must include finding tools with databases searchable by multiple fields (called “bibliographic fields”), such as Bates number, date, author, title, etc. The MSA specifies some 29 fields for such data, MSA App. I at (b)(2) (JD-045158) (A); similar fields with more precision should be adopted here.148

Disclosure of public records is needed to ensure transparency and to prevent future fraudulent activities, such as misrepresenting Defendants’ knowledge about the health hazards of their products, suppressing research into less hazardous products, denying the addictive nature of their products, denying that they manipulate nicotine deliveries, and the multiple other frauds proven at trial in this case.

FOOTNOTES:

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146 See also id., ch. 12, ¶ 266; id., ch. 8, ¶ 959. Such legally binding, ongoing document disclosure obligations “ensure that the information known by the tobacco companies is available and readily accessible to the public.” Szymanczyk WD, 202:15-19; see US FF § V.F, ¶ 282.

147 In addition, having an independent third party run any document depository is needed to prevent Defendants from gathering inappropriate information about – and from – members of the public and public health researchers who use the Court-ordered document depositories. For example, BATCo has its lawyers prepare daily “Guildford Reports” to summarize the documents that Guildford Depository visitors request, read, and/or ask to be copied. See R&R #112 at 10, adopted by Order #359. Because the Court will be ordering public disclosure to ensure transparency and prevent future misconduct, the Court should prohibit Defendants from such surveillance of members of the public and researchers who utilize the information that is made available by the Court’s Order.

148 Defendants must be compelled to provide these bibliographic fields on a document-bydocument basis. BATCo contends that there are 8 million pages of documents from August 1994 and earlier at its Guildford Depository, but its indices allow searches only by “folder” or “file,” rather than by document, and such folder-level indices are woefully deficient. As the U.K. Health Committee reported, “a search for ‘disease’ yielded only sixty nine entries. This was because only the title of the file was indexed and, as we discovered, this often gave absolutely no indication of the contents.” Health Committee (¶ 238), US 93249 at 1283 (O) (emphasis added).

9 Responses to “Intervenors: University Asks to Intervene on Secret Documents”

  1. Dr. Keyvan Davani Says:

    Thank you for your efforts- and if you were able to have more documents pertaining to the specific and secret tobacco industry activities in EUROPE, I and the tobacco control community in Europe would be much more thankful.

    Best wishes from Vienna

    (Mr.) K. Davani (Ph.D. Law)

  2. tobacco observer Says:

    >>Thank you for your efforts- and if you were able to have more documents pertaining to the specific and secret tobacco industry activities in EUROPE, I and the tobacco control community in Europe would be much more thankful.

    As you know, the tobacco industry defendants in this lawsuit don’t sell cigarettes in Europe.

    If you want the “secret” European tobacco documents from the European tobacco companies, you’ll have to get them yourself!

  3. Gene Borio Says:

    >>As you know, the tobacco industry defendants in this lawsuit don’t sell cigarettes in Europe.

    I know you mean that the defendants aren’t _on trial_ for selling cigarettes in Europe, but Altria, which in a broad sense does sell cigarettes in Europe, remains a defendant.

    Testimony on Marlboro/Formula One racing and promotion in Europe has been admitted, though only as such promotion bleeds into the US market. Although this aspect would seem a rich vein to mine, no relevant “secret” documents have been admitted to my knowledge.

    Some Europe-specific documents and compilations are listed at: http://www.tobacco.org/resources/documents/secretdocuments.html

    The databases which hold many European documents are of course:

    http://www.tobaccodocuments.org

    and

    http://legacy.library.ucsf.edu/

  4. krueger Says:

    One of the insights to come out of this trial has been the extent to which Big Tobacco cooperates internationally. Lines of company and nation are regularly crossed to protect industry interests.

    In this trial Frederick Gulson provided compelling examples of this with respect to document destruction.

    Gulson says BAT, Brown and Williamson, and BAT operating companies all shared research. BAT Australia incriminating documents were incriminating for other tobacco companies. So Wills document destruction policy was the same as BAT policy was the same as Tobacco Institute of Australia policy.

    In the AFCO case the Tobacco Institute of Australia was being sued to stop making misleading statements that secondhand smoke was OK. Gulson says Philip Morris, R. J. Reynolds, and BATCO decided BAT Australia wouldn’t settle the case. Why? Settlement would entail admissions that might later be used to hold other tobacco companies accountable for effects of secondhand smoke.

    Strategies developed by the tobacco industry in the U.S. to spread smoking and undermine health efforts, are then deployed by the industry in countries around the world:

    http://www.smokefreeforhealth.org/studies/OngGlantz.htm

    http://repositories.cdlib.org/ctcre/tcpmi/Swiss2001/

    http://www.essentialaction.org/addicted/addicted.html

    This is why advocates like Mr. Davani are looking for documents about tobacco industry activity in Europe. They know it will inform and guide their advocacy, and help them educate the public on how tobacco is promoted in their countries.

  5. tobacco observer Says:

    I know you mean that the defendants aren’t _on trial_ for selling cigarettes in Europe, but Altria, which in a broad sense does sell cigarettes in Europe, remains a defendant.
    ***

    Gene,

    With connections to the alleged predicate RICO acts tenuous, how long Altria will remain a defendant in this lawsuit is questionable.

    But apart from that, as you know, Altria is a holding company. It doesn’t sell cigarettes in Europe or elsewhere, nor does it manufacture them or market them. This isn’t just semantics, this is the legal reality.

    I own shares of Merck. . .that doesn’t mean I manufacture pharmaceuticals. It certainly doesn’t mean I have access to Merck’s secret internal documents!

    The subsidiary that *does* conduct business in Europe, PM International, has never sold a cigarette in the United States, and is not a defendant in this lawsuit. Furthermore, the jurisdiction of the RICO statute, the American Federal Court system, Judge Kessler, and the American gov’t does not extend over foreign companies such as PMINTL and their European business.

    As such, Judge Kessler lacks the jurisdiction to compel PMINTL to turn over any documents in this case. Its that simple. She also lacks the jurisdiction to influence their marketing policy outside the United States.

    As a holding company, the actual defendant, Altria, is legitimately not likely in possession of *any* “secret” European tobacco documents. Whether or not Altria would (or even could) compel PMINTL to turn over its “secret” documents is another matter. Possibly it could, but that certainly isn’t going to happen in this case.

  6. krueger Says:

    This is the legal fiction that Philip Morris has pushed in the trial: oh gosh, we don’t know what that other Philip Morris does over there. Can’t say, don’t know, they’re not us, wish I could help. And so on.

    It is a convenient fiction, and on paper it’s entirely true. In the real world of course it’s hogwash. Not only is the line pretty thin between Philip Morris here and Philip Morris there, the lines between any of the players that comprise Big Tobacco are pretty thin. That’s what Frederick Gulson’s testimony in this trial was about.

    However its significance goes way beyond this trial. Smokefree advocates in Europe are interested in secret tobacco industry memos for the same reason smokefree advocates in the US are: these documents reveal how Big Tobacco operates, how it engineers product for addicction, how it recruits kids, how it defeats smokefree policies, how it covers up its secrets, how it manufactures and distributes its disinformation. This is critical to understanding industry behavior in America and worldwide.

  7. krueger Says:

    The Department of Justice Post-Trial Brief explains why it’s silly to pretend that Philip Morris International is separate and distinct from Philip Morris USA. Some excerpts:

    Altria, which was incorporated in 1985 (as Philip Morris Companies Inc.), effectively and actively controls the activities of all of its subsidiaries, including Defendant Philip Morris USA Inc. and Philip Morris International, Inc.

    Overall policies on all major aspects of the companies operations are set by Altria management, and senior Altria executives, employees, and agents participate in and/or control decisions about how the operating companies implement those policies, through both formal and informal reporting relationships.

    Altria’s relationship with its subsidiaries was structured to maintain consistency among its companies on sensitive issues such as smoking and health, addiction, and passive smoking. The CEO and Chairman of Philip Morris Companies, Geoffrey Bible, was the ultimate authority on content of public statements on smoking and health made by Philip Morris Companies
    subsidiaries, including Philip Morris USA.

    The document retention procedures and policies that led to the destruction of email from senior executives at Philip Morris while this lawsuit was pending were created with and approved by Altria.

    Through to the late 1990s, the General Counsel of Philip Morris, along with all Philip Morris in-house counsel, were actually employees of Altria Corporate Services (ACS) and reported directly to the General Counsel of Altria.

    Worldwide Scientific Affairs (WSA) is a group established by Altria to coordinate science and science policy, including policy about smoking and health issues, across all of the Altria companies. WSA was organized in regions covering various operating company subsidiaries, including Philip Morris, Philip Morris International, and their subsidiaries, in various parts of the world; scientific policy was coordinated across these regions and Altria subsidiaries.

    Altria has a Scientific Research Review Committee (SRRC) with responsibility for overseeing all scientific studies, related to tobacco, smoke and/or smoking, conducted or funded by Philip Morris Companies or any of its subsidiaries around the world.

    Worldwide Regulatory Affairs was a department established by Altria to coordinate and ensure consistency in regulatory policy statements and responses across all of the Altria companies.

    Altria controls Philip Morris’s communications on sensitive issues such as litigation against Philip Morris, Philip Morris’s opposition to federal excise taxes on cigarettes, and Philip Morris’s support for FDA regulation of tobacco products,

    It is disingenuous to argue, as Altria does, that its control, through the reporting relationship, of decisions taken by Altria Corporate Services (ACS) employees on behalf of its subsidiaries does not constitute control of those decisions.

  8. tobacco observer Says:

    >>This is the legal fiction that Philip Morris has pushed in the trial: oh gosh, we don’t know what that other Philip Morris does over there.

    You miss the point.

    The point is that what happens “over there” is outside the purview of the American justice system.

    Its not even on trial.

    Incidentally, having “secret documents” is not a RICO violation, its not illegal, and by itself its not even suspicious. In fact, the more secret the documents, the less relevant they are to allegations of public deception.

  9. krueger Says:

    “The point is that what happens “over there” is outside the purview of the American justice system.”

    Sorry, that’s neither the point nor the case.

    Documents discovered in U.S. tobacco litigation have provided information about Big Tobacco’s activities elsewhere, including Europe.

    Example: “We now have a clear view of the tobacco industry’s strategies in Switzerland as a result of lawsuits in the United States which have made millions of pages of previously secret tobacco industry documents public.”
    http://repositories.cdlib.org/ctcre/tcpmi/Swiss2001/

    Example: http://legacy.library.ucsf.edu/tid/luy51c00

    Example: http://legacy.library.ucsf.edu/tid/mfq20d00

    Example: http://legacy.library.ucsf.edu/tid/rkt49c00

    Thus Mr. Davani’s request. We may expect this case to provide more internal documents that enlarge our understanding of Big Tobacco’s activities in Europe, what’s spreading smoking in Europe, what’s undermining health efforts in Europe, and so on.

    And of course it goes the other way too. What Big Tobacco does in Europe has informed and become part of legal action in the U.S., including this case. That’s pretty much inevitable when Big Tobacco conspires globally; its documents here become incriminating there, and vice versa.

    “having “secret documents” is not a RICO violation, its not illegal”

    I all depends on what you do with them. Just ask Mr. Gulson:
    http://www.tobacco-on-trial.com/archives/2005/02/16/frederick-gulson

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