NOTICE of Submission in Response to Order #30 Remand by LORILLARD TOBACCO COMPANY 2012-06-11

July 6, 2012 1:07 pm by Gene Borio

The PDF is Here

The PDF of the document list is Here

EXCERPT:

After conducting a diligent review of the more than 3,000 documents, Lorillard has determined that all but 641 can be returned to the Depository’s publicly available population, and has sent a list of these documents to representatives of the Minnesota Depository. For the 641 documents that Lorillard has determined should remain in the Depository’s SDR on the grounds of privilege, trade secret, formula, or confidentiality,2 Lorillard has prepared a Log attached hereto as Exhibit A, identifying, to the extent available, the document number, author(s), addressee(s), copyee(s), document date, document type, the reason for sealing the document, and whether the procedures contained in Judge Lawrence Cohen’s January 12, 1999 Order were followed. . . .

Nearly all the documents identified on the Depository List relate to claw-backs of documents inadvertently produced in smoking and health litigation a decade or more ago. Despite the passage of time, Lorillard has been able to locate written confirmation for 571 of the 641 documents that the appropriate procedures were followed with respect to the underlying litigation that caused the document to be produced to the Depository. . . .

Additionally, with respect to this Court’s requirement to identify whether “removal procedures” in Judge Cohen’s Order were followed regarding the documents listed on the Log, based on the information available to Lorillard, it appears that these documents were sealed in the SDR within the Depository as opposed to being removed from the Depository. Thus, the requirement to give “notice of any removal of documents” from the Minnesota Depository to the Ramsey County District Court Administrator would not apply. Nonetheless, Lorillard did attempt to determine if the Ramsey County District Court was contemporaneously notified regarding the sealing of these documents in the SDR, but for the reasons mentioned above regarding the dissolution of the two law firms that served as Lorillard’s local counsel in Minnesota, Lorillard has been unable to determine whether any notification occurred.

END EXCERPT

FULL TEXT:

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

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UNITED STATES OF AMERICA, Plaintiff,

- against -

PHILIP MORRIS USA INC., et al., Defendants.

Civil Action No. 99-2496(GK)

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LORILLARD TOBACCO COMPANY’S SUBMISSION IN RESPONSE TO ORDER #30 Remand

Lorillard Tobacco Company (“Lorillard”) makes the following submission in response to Order # 30 Remand. Shortly after the Court issued Order # 30 Remand, counsel for Lorillard contacted administrators of the Minnesota Depository in order to facilitate compliance with the Court’s Order. As part of the ongoing communications between Lorillard’s representative and the Minnesota Depository administrators, on April 24, 2012, counsel for Lorillard received a listing from Carol Smith, an administrator of the Minnesota Depository, identifying 1684 Bates ranges the Depository designated as Lorillard documents moved from the publicly available population to the non-public secure document room (“SDR”) within the Minnesota Depository after March 30, 1999 (the “Depository List”). After receiving the Depository List, Lorillard diligently investigated each of the 1684 Bates ranges on the Depository List and determined that many identified Bates ranges actually comprised more than one document.1 Of the 1684 line item Bates ranges on the Depository List, approximately 475 contained either multiple documents or portions of additional documents. After re-paginating the Depository List on a document-by-document basis, and identifying complete documents where only partial documents are listed, Lorillard identified more than 3,000 individual documents within the Depository List. After conducting a diligent review of the more than 3,000 documents, Lorillard has determined that all but 641 can be returned to the Depository’s publicly available population, and has sent a list of these documents to representatives of the Minnesota Depository. For the 641

1 For example, Bates range 82128604/8693 on the Depository List includes 33 individual Lorillard documents.

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documents that Lorillard has determined should remain in the Depository’s SDR on the grounds of privilege, trade secret, formula, or confidentiality,2 Lorillard has prepared a Log attached hereto as Exhibit A, identifying, to the extent available, the document number, author(s), addressee(s), copyee(s), document date, document type, the reason for sealing the document, and whether the procedures contained in Judge Lawrence Cohen’s January 12, 1999 Order were followed.

In order to address all the Log fields required by Order #30 Remand, including the reason why a document was moved into the SDR and whether Lorillard complied with the procedures in Judge Lawrence Cohen’s January 12, 1999 order, Lorillard conducted a diligent, good faith review of historical case-related and administrative records corresponding to each of the 641 documents listed on the attached Log. This effort included locating and reviewing records, which in many instances were more than a decade old. These efforts were complicated by the fact that the law firms that served as Lorillard’s Minnesota local counsel, whose responsibilities included facilitating Lorillard’s compliance with Court Orders in the Minnesota Attorney General action and communicating with the Minnesota Depository administrators during the relevant time period encompassed by Order #30 Remand, no longer exist. Specifically, Lorillard’s Minnesota local counsel in the Minnesota Attorney General litigation, Doherty Ruble & Butler (“Doherty Rumble”), ceased operating in approximately June 1999, and Doherty Rumble’s successor as Lorillard’s Minnesota local counsel, Rider Bennett Egan & Arundel (“Rider Bennett”), ceased operating in approximately June 2007. Lorillard’s due diligence efforts to comply with Order # 30 Remand included efforts to interview former Doherty Rumble and Rider Bennett employees involved with facilitating Lorillard’s compliance with Court Orders in the Minnesota Attorney General action and communicating with the administrators of the Minnesota Depository on Lorillard’s behalf.

Nearly all the documents identified on the Depository List relate to claw-backs of documents inadvertently produced in smoking and health litigation a decade or more ago. Despite the passage of time, Lorillard has been able to locate written confirmation for 571 of the 641 documents that the appropriate procedures were followed with respect to the underlying litigation that caused the document to be produced to the Depository. For example, Lorillard

2 By contrast, more than 800,000 Lorillard documents are resident in the publicly available population of the Depository.

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located documentation showing that pursuant to Court order in this action, it notified counsel for the Department of Justice that certain documents had been inadvertently produced.

For 55 documents (which are denoted with an “*” in the ninth column of the Log), based on its investigation described above, Lorillard has been unable to locate written confirmation of compliance with the claw-back procedure in the underlying case prior to the sealing of the document in the SDR. However, based on its investigation and the pattern of compliance that emerged, Lorillard believes that it complied with the claw back procedures in the underlying litigation, but due to the passage of time and the inherent difficulty in locating such highly specific back-up materials, it has simply been unable to locate the back-up documentation. Lorillard has found no indication that claw back procedures were not to be followed. Lorillard continues to review its records related to the Log and will supplement this submission, as appropriate.

For another 8 documents (which are denoted with an “**” in the ninth column of the Log), Lorillard’s investigation reflects that the documents were never included in any document production in a smoking and health litigation; thus there was no claw-back procedure in an underlying case for which compliance could be confirmed for the purpose of this filing. It appears that these documents were simply mistakenly included in a box shipped to the Depository.

Additionally, with respect to this Court’s requirement to identify whether “removal procedures” in Judge Cohen’s Order were followed regarding the documents listed on the Log, based on the information available to Lorillard, it appears that these documents were sealed in the SDR within the Depository as opposed to being removed from the Depository. Thus, the requirement to give “notice of any removal of documents” from the Minnesota Depository to the Ramsey County District Court Administrator would not apply. Nonetheless, Lorillard did attempt to determine if the Ramsey County District Court was contemporaneously notified regarding the sealing of these documents in the SDR, but for the reasons mentioned above regarding the dissolution of the two law firms that served as Lorillard’s local counsel in Minnesota, Lorillard has been unable to determine whether any notification occurred.

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Dated: June 11, 2012

Respectfully submitted,

/s/ Michael B. Minton

Michael B. Minton

THOMPSON COBURN LLP

One US Bank Plaza, Suite 3500

St. Louis, Missouri 63101-1693

Telephone: (314) 552-6000

Fax: (314) 552-7597

Attorneys for Defendant

Lorillard Tobacco Company

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CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of the foregoing Submission in Response to Order #30 Remand was filed electronically on June 11, 2012. Notice of this filing will be sent to all parties by operation of the Court’s electronic filing system.

Dated: June 11, 2012 __

/s/_Michael Minton, Esq._________

Michael Minton, Esq.

Thompson Coburn LLP

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