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Wednesday, November 26, 1997

Federal magistrate considers evidence in tobacco lawsuit

By TERRI LANGFORD / Associated Press Writer

BEAUMONT, Texas (AP) -- Texas' case against the tobacco industry inched forward Tuesday as a federal magistrate considered whether about 30 internal documents should be admitted as evidence.

If U.S. Magistrate Wendell Radford sides with attorney Ron Motley, who is leading the Texas case, the state could use the documents to attempt to prove the tobacco industry conspired against American smokers, with lawyers dictating everything from scientists' study results to campaigns suggesting cigarettes as a hip alternative activity for youth.

Motley argued that some of the memos illustrate how lawyers for the tobacco companies were "coaching scientists in the industry to what they can say" and how the companies went to great lengths to avoid discovery in courtrooms across the nation.

"It shows a pattern of conduct," Motley said.

Motley represents a majority of the 38 states with pending lawsuits against the tobacco industry. Several states also have class-action lawsuits filed.

The proceeding in Beaumont began Monday with Radford and the two sides spending four hours discussing what criteria should be met before the judge even would consider the first document.

"These are all documents that were generated as privileged documents. They were stolen a few years back and then in 1992 were spread out on the Internet and made publicly available without any legal process whatsoever. Those documents are privileged until a judge decides otherwise," said David Bernick, a spokesman for Brown & Williamson Tobacco Co.

Motley said the documents were lawfully obtained, playfully referring to some of them as "liberated," a reference to a series of documents that a former paralegal has been accused of releasing.

Brown & Williamson claims that Merrell Williams, who once worked for the law firm representing the company, took documents from his employer. The papers found their way to the Internet. Brown & Williamson has said in court papers that anti-tobacco lawyers paid for Williams' house, cars and boat in return for copies of the documents.

Radford said he would consider nothing that was already before U.S. District Judge David Folsom in Texarkana, where Texas' lawsuit against eight tobacco companies and three trade groups is filed. The state is attempting to recover money it says has been spent on Medicaid for treating tobacco-related illnesses.

It is not unusual to have a federal magistrate consider auxiliary matters such as evidence in a lawsuit this large and unwieldy.

Because Folsom put Oct. 27 jury selection on hold to undergo prostate surgery, Radford's role is now key to keeping the lawsuit moving forward.

Radford made it through the 30 or so documents by Tuesday afternoon, then told attorneys to meet back on Monday for another round of 50 the plaintiffs attorneys want considered.

What Radford must determine first is whether the documents may be lawfully excluded from the state's lawsuit because they are shielded by attorney-client privilege, which protects discussions between an attorney and his client.

Once Radford makes a determination, he then must decide whether the activity discussed in the memos is criminal or fraudulent in nature. If so, he may allow the memos to be admitted as evidence because they meet a "crime-fraud" exception to attorney-client privilege.

Motley calls the memos the "icing" on the state's attempt to prove the industry lied to consumers.

Mississippi, the first state to take the industry to court, settled its lawsuit July 3 for nearly $3.6 billion, or 1 percent of a proposed national settlement.

In August, Florida became the second state to settle with the tobacco industry, signing a $11.3 billion agreement that ended that state's drive to punish cigarette makers for decades of alleged fraud and racketeering.

Trials in Texas and Minnesota are likely to begin in January.

A $368.5 billion national tobacco settlement was reached in June between state attorneys general and the tobacco industry. The agreement is awaiting consideration next year by Congress and the president.