JULY/AUGUST 1998 · VOLUME 19· NUMBER 7&8
THE TOBACCO PAPERS
I. Meet the Tobacco Papers
Where the Tobacco Papers Come From,
How to Locate Them, and What's Missing
The state suits began in 1994, when the state of Mississippi decided to seek reimbursement for the medical care costs incurred by the state government in treating Medicaid patients who became sick or acquired disease as a result of smoking. This novel theory successfully shifted attention away from individual smokers, and to the industry. The argument that smokers knew the potential risks of their actions would be no defense.
Other states soon followed the Mississippi lead, with 40 states having filed suits by mid-1997. So far, Mississippi, Florida, Texas and Minnesota have all achieved multi-billion dollar settlements with Big Tobacco
The Minnesota case was widely viewed as the best prepared, and the state presented its full case to a jury before reaching a settlement.
A unique element of the Minnesota case was the extraordinary work the state's lawyers had done in the "discovery" phase of the suit. Discovery permits each side in a lawsuit to demand documents, including confidential materials, from the opposing litigant. The tobacco industry has long claimed broad exemptions from the discovery rules, primarily by arguing that millions of pages of important documents were covered by different forms of the attorney-client privilege, a set of doctrines that let parties to a lawsuit keep confidential materials involving correspondence between lawyers and clients or papers produced in preparation for litigation.
The Minnesota lawyers were ultimately able to defeat these claims for millions of pages of industry documents. And, with Congress demanding to see the secret industry documents as it considered tobacco legislation that might have settled the lawsuits against the tobacco industry, Big Tobacco unilaterally posted the documents on the world wide web. The U.S. House of Representatives later posted tens of thousands of additional documents that it demanded from the industry.
These documents reveal stunning industry secrets -- as well as the manner in which the industry operated on a day-to-day basis -- but they are quite difficult to sort. The indexes published by the tobacco companies are very inadequate (they maintain a separate index that they have not made public), the text of the documents is not searchable, the software to search the documents is somewhat unwieldy and the structure of the industry search sites is awkward.
The result: very few reporters or researchers have carefully scrutinized what is probably the greatest cache of internal industry documents ever made public.
In this issue, Multinational Monitor presents what is probably the most detailed examination of the company documents yet published.
Finding the documents on the 'net
Commerce Committee Site: All documents referenced with PM, BW, TI, RJR are located on the House Commerce Committee's web site at http://www.house.gov/commerce/TobaccoDocs/documents.html. After arriving at the site on a web browser, click on the appropriate company link under the heading "39,000 Documents Released April 22, 1998." In the screen that appears, type in the document's "Bates numbers." In order to view the documents some users may need to download the special TIFF or Adobe Acrobat viewer plug-ins available on the Committee's site.
Tobacco Resolution Site: All documents referenced with pm, ti, bw, rjr
are located on the Tobacco Resolution web site at http://www.tobaccoresolution.com.
After arriving at the site in your Web browser click on the "Document
Archives" link. In the screen that appears, click on the appropriate company
and follow the prompts to the search screen. Type the entire Bates number
into the search field.
1) Search for "TIMN0136055/6056"
Minnesota Litigation Site: All documents referenced with MN can
be found on the Minnesota Blue Cross tobacco site, at http://www.mnbluecrosstobacco.com/toblit/trialnews/docs/.
The documents are indexed by trial exhibit number. Note, in order to view
the documents some users may need to download the special Adobe Acrobat
viewer plug-in available on the site.
Note: All of the emphases in document quotations in this issue of Multinational Monitor are from the original.
Off to the Shredder!
A handwritten document used in the Minnesota lawsuit lists eight precautions being taken to hide and destroy documents. The note reads "Ship all documents to Cologne ... Keep in Cologne ... OK to phone and telex (these will be destroyed) ... Please make available file cabinet. Jim will [illegible] into shape end of August to beginning Sept. If important letters have to be sent please send to home -- I will act on them and destroy" <MN2501>.
An article in the April, 1984 issue of Legal Briefs, an internal RJR newsletter, gives memo writing "tips" to employees <RJR503773915/3921>. Titled "Favorite Myths About Memo Writing," the article is prefaced, "I can't complain -- I think our people do an excellent job of writing 'good paper.' Occasionally, however, I run across something that supports the old maxim that 'there is always room for improvement. If you are writing anything that could prove troublesome, please consider these 'myths' and note my comments." This is followed by three fallacies and their variations, and the author's comments on each:
"Myth #1 -- 'I can explain this away' -- but you may not be here or have a chance to explain it in court.
Myth #2 -- 'This is just exploratory work' -- this makes no difference. It is still your thought and thus assumed to be the Company's intent.
Myth #3 -- 'This memo will be thrown away' -- but what if we are served with a subpoena in the meantime? Answer: Your draft may be caught up in the net of the subpoena. 'I'll just stick this copy of the memo in my desk and in that way no one can get at it.' -- a subpoena can reach materials in your desk or even at home. ... 'I'll put on my memo in big red letters "destroy after reading"'-- but what if a subpoena intercepts it in the meantime? The note 'destroy after reading' simply tells the plaintiff's attorney 'this is the smoking gun.'"
Another RJR document records a meeting between lawyers and other company employees. The notes warn, "The problem, of course, as with everything we will discuss this morning is that your records could be subpoenaed by a private litigant or by the government. If there was damaging material, this material could be used against us. For instance, if we should do research concerning the Warning Statement which indicated that the Warning was not heeded or believed by consumers, this could be subpoenaed and thrown in our faces by the FTC if an initiative were made to change the Warning" <RJR503761197/1199>.
Various memos from company lawyers instruct company officials to assume everything they write will one day be discoverable in civil litigation, company lawyer efforts to conceal documents notwithstanding.
The text of a draft speech to RJR employees demands, for example, "And despite our clear policy, are there any smoking guns in your files? Are there any memoranda that suggest that the smoker would be wise to smoke low tar? Are there any questionnaires that ask the smoker whether he believes smoking is harmful? Are there any strategy documents that suggest since smoking is harmful the best we can do is develop a 'safer' cigarette? The answer to those questions is of course a firm no, at least insofar as the past is concerned, and I am here with your help to ensure that continues in the future. You really have to communicate both internally and with your outside professionals on the assumption that what you write will end up on the front page of the public press, or on public television" <RJR503794771/4781>.