BAT Responds to DOJ Praecipe on Mowbray Case

June 13, 2006 9:34 pm by Gene Borio

On June 6, BAT (BATAS and BATCo) filed its response to the DOJ’s Mowbray/Brambles Praecipe directing Judge Kessler’s attention to an Australian court’s judgment on privileged documents. BAT counters that the Dust Diseases Tribunal decision is unworthy of Judge Kessler’s attention.

BAT’s filing notes that the Australian court did not have the testimonies of Mr. Cannar or Mr. Foyle, nor did it have the cross examinations of Mr. Welch, Mr. Wigand or Mr. Gulson (The DDT’s Judge Curtis relied heavily on the DOJ’s Written Direct Testimonies of these three).

Thus, the Australian court did not have as much evidence before it as Judge Kessler had during the DOJ trial, and much of the evidence Judge Curtis did consider was not the same as the evidence on record in the DOJ case. In addition, the Australian rules governing evidence are different from those of US Courts.

Finally, BATAS has not yet filed a legal response to the DDT decision. But it might(!) and Judge Kessler should bear that possibility in mind.

Therefore, BAT claims:

“The Court does not need to consider the (Re Mowbray) opinion, which would require it to sort through precisely what evidence was before the Dust Diseases Tribunal, understand the procedural and substantive nature of those proceedings, consider any evidence BATAS presents to the Dust Diseases Tribunal in the near future (if there is any challenge to the privileged documents it sets forth on its privilege log), and give due weight to BATAS’s right to appeal any order that requires it to produce privileged documents, should any such order ever be entered.”

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Text follows of:
BAT’s response to Mowbray Praecipe, June 6, 2006

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA,

Plaintiff,

PHILIP MORRIS USA INC., et al.,

Defendants.

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

Next scheduled court appearance: ) None scheduled

____________________________________

RESPONSE OF BRITISH AMERICAN TOBACCO AUSTRALIA SERVICES LIMITED AND BRITISH AMERICAN TOBACCO (INVESTMENTS) LIMITED TO PRAECIPE OF THE UNITED STATES REGARDING RECENT AUSTRALIA DUST DISEASES TRIBUNAL JUDGMENT

Intervenor British American Tobacco Australia Services Limited (“BATAS”) and Defendant British American Tobacco (Investments) Limited (“BATCo”) file this response to the Praecipe of the United States regarding a recent decision of the Dust Diseases Tribunal of New South Wales in (Re Mowbray) Brambles Australia Ltd. v. British American Tobacco Australia Services Limited [2006] NSWDDT 15. The United States urges the Court to consider the (Re Mowbray) opinion in deciding certain privilege issues that remain before the Court.

The Court should not consider the (Re Mowbray) opinion. Reviewing the opinion and sorting through the evidence submitted to the Dust Diseases Tribunal would add nothing to the extensive record already before the Court concerning these issues.

First, the (Re Mowbray) decision is an interlocutory decision; it is not a final decision concerning the application of Australia’s crime-fraud exception to any document of BATAS. See (Re Mowbray) opinion at ¶¶ 50, 53, 56, 57, and 90.1

Second, BATAS will have an opportunity later in the (Re Mowbray) proceeding to present evidence and argument that the Australian crime-fraud exception should not apply to its privileged documents. If the Dust Diseases Tribunal orders that BATAS turn over any privileged document, BATAS would have the right to appeal any such order.

Finally, the record upon which the Dust Diseases Tribunal made its recent decision was not the same as – and, indeed, was far less extensive than – the record before the Court on these issues. When it issued the opinion at issue, the Dust Diseases Tribunal had before it no testimony from Nicholas Cannar or Andrew Foyle, no transcript of the live cross examination of Frederick Gulson before this Court, and no cross examination of John St. Vincent Welch or Jeffrey Wigand.

This Court has more than enough evidence to decide the outstanding privilege issues raised by Report & Recommendation Nos. 155 and 172. Indeed, both BATCo and BATAS extensively briefed those matters in relation to the record adduced during the discovery phase and trial of this matter. The Court does not need to consider the (Re Mowbray) opinion, which would require it to sort through precisely what evidence was before the Dust Diseases Tribunal, understand the procedural and substantive nature of those proceedings, consider any evidence BATAS presents to the Dust Diseases Tribunal in the near future (if there is any challenge to the privileged documents it sets forth on its privilege log), and give due weight to BATAS’s right to

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1 It bears mentioning that BATCo is not now and never was a party to the (Re Mowbray) proceedings.

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appeal any order that requires it to produce privileged documents, should any such order ever be entered.

Dated: June 6, 2006

Respectfully submitted,

PILLSBURY WINTHROP SHAW PITTMAN LLP

_/s/___________________________________

Jack McKay (DC Bar No. 159335)

Alvin Dunn (DC Bar No. 423229) 2300 N Street, N.W.

Washington, DC 20037-1128

United States of America

Telephone: (202) 663-8439

Facsimile: (202) 663-8007

E-mail: jack.mckay@shawpittman.co…

Counsel for British American Tobacco Australia Services Limited

__/s/__________________________________

Bruce G. Sheffler

David L. Wallace

CHADBOURNE & PARKE LLP

30 Rockefeller Plaza

New York, NY 10112-0219

Telephone: (212) 408-5100

Attorneys for Defendant

British American Tobacco (Investments)

Limited

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