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Massive Disclosure Urged in Minnesota Tobacco Lawsuit

Smoking: Attorney general hails key step in unraveling 'conspiracy.' Industry cites privilege, vows appeal.

September 11, 1997|HENRY WEINSTEIN | TIMES LEGAL AFFAIRS WRITER

WASHINGTON — The special master reviewing confidential documents in Minnesota's massive lawsuit against the tobacco industry recommended Wednesday that the industry be compelled to turn over to the Minnesota attorney general 834 internal documents that the cigarette companies were trying to keep secret.

If special master Mark Geehan's recommendation is sustained by state court Judge Kenneth Fitzpatrick in Ramsay County, the companies would be required to release documents on youth-targeting, industry research on smoking's impact on health, lawyers' control of scientific research and other issues of interest to Minnesota Atty. Gen. Hubert H. Humphrey III.

"This ruling is a monumental step in our effort to uncover the truth about the tobacco cartel's 40 years of lies, fraud and conspiracy," Humphrey said. "Today's ruling calls for releasing more secret privileged documents than have ever been uncovered in the history of the tobacco wars."

Geehan issued only a brief order, listing the categories of documents he said should be turned over to the state. The explanation of his reasoning was given to the judge under seal.

Geehan's recommendation is likely to add fuel to the debate in Washington concerning the importance of document disclosure as the White House and Congress consider the proposed $368.5-billion national tobacco settlement.

"That's good news," said Tom Harkin (D-Iowa), one of the senators who has taken the position that the Senate should not take any action on the settlement until it has obtained thousands of industry documents that have not been made public.

Maurice A. Leiter, a Los Angeles attorney who represents Philip Morris, said the industry will appeal Geehan's recommendation to the court and, if necessary, to appellate courts in Minnesota. That process could take months.

On the other hand, Leiter said he was pleased that Geehan had "found that the vast majority of privilege claims made by the defendants were proper."

Geehan sustained the industry's claims of privilege in nine of the 14 categories in question--a total of nearly 1,700 documents.

The documents in question were turned over to the court in March by Liggett Group as a key element of a settlement the nation's smallest tobacco company made with 22 states. The industry immediately objected to any of that material being made public, saying it was entitled to confidentiality under the well-established privilege governing confidential communications between attorneys and their clients.

Lawyers for Minnesota contended that they were entitled to the documents under an exception to the rule, which comes into play when there is evidence of crime or fraud.

A 160-page log of the 2,500 Liggett documents obtained by The Times is replete with summaries of letters, memos and notes made by Liggett attorneys during meetings of "The Committee of Counsel," a group composed of attorneys from all the major tobacco companies who conferred regularly on strategy and tactics.

Since Liggett made the settlement in late March, industry lawyers have attempted to block release of the material in courts around the country. Most of those decisions are still pending.

Earlier this summer, after rulings by five judges in Florida, eight of the documents were made public. Soon thereafter, the industry entered into an $11.3-billion settlement with Florida.

Geehan now will turn to the task of making recommendations to Fitzpatrick about 150,000 more documents--about 1 million pages in all--that the industry claims are privileged.

The special master made his recommendation on the Liggett materials after reviewing hundreds of documents in his chambers and conducting a three-day hearing in July, some of which was conducted behind close doors in a St. Paul courtroom because some of the confidential documents were discussed. Geehan conducted his chambers review pursuant to a procedure instituted by Judge Fitzpatrick in May.

Over industry objection, Fitzpatrick said Geehan did not have to read all 2,500 Liggett documents or all of the 150,000 other documents before making his recommendations. Rather, he said that based on legal precedents, Geehan could make recommendations after reviewing representative documents in each of 14 categories.

Fitzpatrick said at the time that if Geehan had to review every document, the Minnesota trial--scheduled to begin in mid-January--would not start for years.

Philip Morris attorney Leiter said the industry continues to object to the procedure Fitzpatrick instituted. "Under Geehan's recommendation, he is recommending that documents be released that we believe he has not reviewed. We will appeal both the substance of those findings and the procedures," Leiter said.

Geehan sustained the industry's claim of privilege on several categories of documents, including those relating to cigarette formulas.

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