Tobacco Firms Seek to Snuff Damage by Disclosing Papers

Faced with disclosure of internal documents they had fought hard to keep secret in a major Florida lawsuit, cigarette makers Wednesday took the unusual preemptive step of releasing the papers themselves, along with an analysis of why they believe the material is not damaging.

In an attack on the legal reasoning that led to the disclosure, tobacco companies claimed their poor “political standing” had resulted in a denial of their rights to shield documents under the attorney-client privilege.

Climaxing a fierce legal battle, the eight documents from cigarette maker Liggett were turned over to attorneys for the state, who said the revelations should help them prove the industry engaged in fraud and racketeering, thus bolstering their claims for punitive damages in the state’s massive anti-tobacco suit.

Among the documents was one from 1984 quoting an industry scientist as saying tobacco lawyers had thwarted efforts to test the safety of cigarette ingredients. Another, written in 1978 by Brown & Williamson Tobacco Corp.’s general counsel Ernest Pepples, urged its rivals to oppose disclosure of carbon monoxide yields in cigarette brands.

A lengthy October 1966 memo by an attorney at Shook, Hardy & Bacon, one of the industry’s primary law firms, provides recommendations on whether numerous scientific projects that were underway should be continued.

An examination of the documents shows they are similar to--and even less dramatic than--many others that anti-tobacco lawyers have introduced in court in the last year. But the court-ordered release of documents, which followed the exhaustion of industry appeals, vindicated anti-tobacco lawyers in this and other cases who have long accused the cigarette makers of improperly invoking the attorney-client privilege to cloak evidence that they knew their products were dangerous and addictive.

“These documents show that lawyers were part of a conspiracy to suppress information about the safety of this product from getting into the public domain,” said Florida Atty. Gen. Robert Butterworth.

But Gregory G. Little, senior assistant general counsel for Philip Morris Cos., said plaintiffs’ crowing about the documents is “simply more of their now-familiar sound-bite litigation.”

And in a statement issued Wednesday, the world’s biggest tobacco firm said the industry has “fought hard to preserve the attorney-client privilege because it is an integral part of our American legal system. That the privilege could be so easily lost because of an industry’s political standing should be of grave concern to all.”

More contested documents are likely to be revealed soon. Last Friday, a special master reviewing disputed papers in the Florida case ruled that cigarette makers also had improperly used the attorney-client privilege to block release of documents from the Tobacco Institute, the industry’s lobbying group, concerning the group’s efforts to blunt criticism of youth-oriented tobacco advertising.

In his ruling on those documents, the special master, R. William Rutter Jr., wrote that he had again seen “evidence that the defendants utilized attorneys in carrying out and planning fraudulent activities and undertook to misuse the attorney-client relationship to keep secret research and other activities related to the true health dangers of smoking.”

He added that he had not determined the truth of such claims, but had concluded that there “is sufficient evidence for a jury to consider . . . whether prior tobacco industry lawyers were involved in such fraudulent activity.”

Normally, internal documents are exempt from disclosure in lawsuits if they involve confidences between attorney and client, or work being done by attorneys preparing for lawsuits.

In the Florida case and many others, anti-tobacco lawyers had been seeking to review documents provided by Liggett Group, as part of a settlement it reached with state attorneys general in March. But the other companies objected to the release of certain Liggett documents reflecting communications between their attorneys and Liggett lawyers. Their argument was that release of these documents would violate either their attorney-client privilege or another known as the “joint defense privilege,” so Liggett could not disclose them.

But a judge, after reviewing contested documents in chambers, can order release of the normally privileged documents if the party seeking the document makes a sufficient showing that they reveal acts of fraud or other crimes. And in the Florida case, lawyers for the state argued successfully that the fraud exception did apply--and that there was evidence the fraud involved not only the companies but their lawyers as well.

The document release and Rutter’s ruling on the Tobacco Institute documents increase pressure on the industry to settle the Florida case to keep damaging news reports--or a possible loss--from jeopardizing a national settlement of tobacco litigation.

Now in jury selection, the case was one of 39 state lawsuits that the industry hoped to resolve through the $368.5-billion accord. But with congressional approval of the deal uncertain, Florida has insisted on going forward with the trial or reaching a separate settlement, and state and industry negotiators are said to be far apart.

More Liggett papers are likely to surface in the case. The ones released Wednesday “represent only a small sample of the documents Liggett has submitted for court review, which have not yet been ruled on,” said Bennett LeBow, chairman of Brooke Group Ltd., owner of Liggett, the smallest of the major cigarette firms.

He called on Congress and the White House to “require Big Tobacco to meet the disclosure standard Liggett has set before any global settlement is enacted into law.”