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Tobacco Firm Sought to Cull Studies as 'Deadwood' : Litigation: Lawyer wrote memo as company resisted efforts in wrongful death suits to disclose research.

August 02, 1994|MYRON LEVIN | TIMES STAFF WRITER

It was an interesting time to be cleaning house.

The year was 1985, and tobacco companies, facing a surge in wrongful death claims, were being pressed to disclose internal documents on their knowledge of the risks of smoking.

Even as they fought the discovery requests, lawyers at Brown & Williamson Tobacco Corp., the third biggest U.S. cigarette maker, sought to clear what they called "deadwood" from company files.

In a memo that used the term seven times, B&W corporate counsel J. Kendrick Wells said he had advised Earl Kohnhorst, B&W's vice president for research, development, and engineering, on the need to prune scientific reports from his files.

Wells said he had marked certain reports "with an X" to designate those that "were deadwood in the behavioral and biological studies area."

These papers, he wrote, should be segregated, boxed and put in the basement for possible shipment to B&W's parent firm, BAT Industries, in England. But no one "should make any notes, memos or lists" of the documents, Wells said in the Jan. 17, 1985, memo, recently leaked to several news organizations and Congress.

Whether B&W sent scientific reports from its Louisville, Ky., headquarters to England is unknown. Company officials have refused to say if they took Wells' advice. What is known is that the industry's legal efforts--including fierce resistance to disclosing internal documents--were a huge success.

The cigarette makers repulsed about 150 lawsuits in the 1980s, preserving their record of never paying a nickel in settlements or judgments to people seeking damages for smoking-related illness.

Realizing that a few losses could bring an avalanche of claims, the companies assigned platoons of lawyers to fight each suit, sparing no expense to overwhelm their opponents. By resisting every motion and appealing every ruling that could be appealed, they exploited the cash-flow problems of plaintiff lawyers, who worked for contingency fees.

Only a handful of cases made it to trial. Some were dismissed by judges, but many plaintiffs--drained by the industry's hardball tactics--simply gave up.

"To paraphrase General Patton, the way we won these cases was not by spending all of Reynolds' money, but by making that other son of a bitch spend his," crowed a memo by an RJ Reynolds lawyer.

Like the other cigarette makers, Brown & Williamson stubbornly fought requests for internal memos and reports on smoking and health. But here the company was more successful than its rivals.

Philip Morris, Lorillard, and Liggett Group, for example, were compelled by court orders to surrender reams of internal records in the Cipollone wrongful death case in New Jersey. Disclosure of the documents during the 1988 trial triggered a flood of bad publicity and a $400,000 damage award against Liggett that was reversed on appeal.

Brown and Williamson, on the other hand, apparently was not forced in any of its lawsuits to disclose similar sensitive documents.

However, some legal experts say the "deadwood" memo puts the firm's resistance in a new light. If B&W sought to conceal evidence in the midst of relevant litigation or knowing court battles were likely, experts say the firm may have violated state criminal laws and standards of legal ethics.

For example, in both Texas and New Jersey, where B&W faced injury claims, it was a crime to destroy, conceal or remove any "record, document . . . or thing" to impair its availability in an "official proceeding"--including a civil court case.

The model rules of conduct of the American Bar Assn. held it improper to counsel clients to unlawfully destroy or hide "a document or other material having potential evidentiary value." Kentucky State Bar rules stated that a lawyer should "not suppress any evidence that he or his client has a legal obligation to reveal or produce."

Businesses aren't required to save paperwork forever. Some balance legal and housekeeping requirements with formal record retention policies that dictate how long to keep records. It is common practice to make opponents work hard in lawsuits to get information.

But experts in legal ethics and procedure say it is improper at best to purge documents based on their potential value to legal adversaries.

Some of these experts said the deadwood memo raises suspicions that that is what B&W was up to. Among other things, they questioned why Wells' memo said to keep no lists of the "deadwood" documents--and how a lawyer could know better than B&W's vice president for research what was scientific deadwood.

Some legal experts also questioned why true deadwood would be parked offshore and not merely trucked to a landfill.

" 'Deadwood' sounds like a euphemism," said Geoffrey Hazard, a law professor at the University of Pennsylvania and expert in civil procedure.

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