This is Chapter 22 of my new book, working title “The Industry Playbook: Corporate Cartels, Corruption and Crimes Against Humanity” that is being published online chapter by chapter.
An earlier chapter covered the army of lawyers used by Big Tobacco in mounting a solid legal defense against any threat. And this defense was very successful.
But lawyers aren’t all bad. There are also lawyers on the other side who were fighting for the truth to come out. “For all the significant political objections to judicial activism and the public disparagement of trial lawyers, it seems important to recognize that the legal process serves certain social ends that the legislative process is poorly structured to address,” writes Brandt. “The courts possess a highly articulated set of procedures for the production and evaluation of evidence on behalf of the public adjudication of responsibility for harms. Demonstrating these harms, within institutional structure that are relatively insulated from the pressures of political and economic interests, serves a critical social good. It is because they brought such facts into public view that the courts have offered such a crucial civic arena for pursuing the control of tobacco.”
We previously saw how legal counsel came to dominate overall strategy for Big Tobacco. However, it was also through the legal process that discovery happens, that is what the tobacco companies knew and when they knew it that could be revealed. Ultimately, it was in the courts the key cases were eventually won.
Understand that this was how the science was really settled, in that we’d see Big Tobacco talking internally about the risks and dangers of their product, separate from their PR campaigns.
Big Tobacco was able to defy regulation due to their influence. Thus, “Tort law became a tool for indirect regulatory policy,” states Brandt. “Between 1994 and 1997, more lawsuits were filed against tobacco firms than in the previous thirty years.”
In one case the judge Kenneth J. Fitzpatrick ruled that Philip Morris had engaged “in an egregious attempt to hide information.” There was proof that they destroyed documents. Here he found that the lawyers had explicitly reviewed industry materials, such as scientific studies, for the purpose of claiming privilege.
Special Master Mark W. Gehan reviewed privileged documents of Big Tobacco in the 90’s. He found that the attorney-client privilege had been abused. Brandt writes, “His ruling implicated the attorneys as not ‘representing’ the legal interests of their clients but as full-fledged participants in a decades-long conspiracy.”
Attorney Mike Ciresi had argued “that counsel for the tobacco industry advised the industry to conceal documents and research harmful to the industry by depositing documents with counsel, by routing correspondence through the industry counsel, by naming damning research projects as ‘special projects’ purportedly ordered by counsel, etc., to cover potentially dangerous materials under a blanket of attorney-client privilege protection, and Plaintiffs wish to tear this blanket away.”
The legal process was necessary to showcase Big Tobacco’s lawyers as conspirators. Again, it was discovery of internal documentation that proved this publicly.
One court case builds upon the next. With discovery out in the open and rulings in place, the next court case could often be a little more successful.
Such was the case for the Cipollone case. The lawyer for the plaintiff, Marc Edell, had amassed 300,000 internal tobacco documents. Although Edell won the case, he never received damages for his clients.
This case was appealed up to the Supreme Court, but they refused to hear it. Accordingly, these industry documents were made public. Attorney Richard Daynard said these documents would “provide a firm foundation for future plaintiffs to build a convincing case of fraud and conspiracy against the tobacco industry.”
In the last chapter we covered the paralegal who became a whistleblower, Merrell Williams and his leaking of what became known as the ‘Cigarette Papers’. While a huge milestone that was just one piece of the action.
Through discovery, there are now over 40,000,000 pages of tobacco documents available online.
The proof is all available there. But it is a massive amount! (Burying the opponents in useless paperwork being another tactic of a strong legal defense. You must disclose some things but sometimes you can hide it, in volume, especially if your opponent is short-staffed.)
The legal process, especially through the component of discovery, is key to unveiling conspiracies. We’ll see this time and time again in industry after industry.
Key Takeaways on Discovery and Litigation
- The judicial system, specifically tort law, was a critical area where the truth of Big Tobacco came to light through the discovery process.
- While Big Tobacco was successful in any and all civil lawsuits for many years, the tide eventually turned against them.
- Each successful discovery of proof of Big Tobacco’s deceit, each successful court case, was a stepping stone for the next. The internal documentation revealed in one case could be used to build the following one.
- It was shown in court cases that the lawyers for Big Tobacco were not only representing their clients, but part of the conspiracy in covering up criminal activity, abusing the attorney-client privilege.
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