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Tobacco Documents - Order Regarding Privilege and the Crime-Fraud Exception and Setting Forth Procedures to Determine Privilege Beginning with the Liggett Documents (May 9, 1997)

STATE OF MINNESOTA
COUNTY OF RAMSEY

DISTRICT COURT
SECOND JUDICIAL DISTRICT
CASE TYPE: OTHER CIVIL
Court File No. C1-94-8565

The State of Minnesota,
By Hubert H. Humphrey, III,
Its Attorney General,

and

Blue Cross and Blue Shield of Minnesota,

Plaintiffs,

vs.

Philip Morris Incorporated,
R.J. Reynolds Tobacco Company,
Brown & Williamson Tobacco Corporation,
B.A.T. Industries, p.l.c.,
British-American Tobacco Company Limited,
BAT (U.K. & Export) Limited,
Lorillard Tobacco Company,
The American Tobacco Company,
Liggett Group, Inc.,
The Council for Tobacco Research - U.S.A., Inc., and
The Tobacco Institute, Inc.

Defendants.

ORDER REGARDING PRIVILEGE
AND THE CRIME-FRAUD EXCEPTION
AND SETTING FORTH PROCEDURES
TO DETERMINE PRIVILEGE
BEGINNING WITH
THE LIGGETT DOCUMENTS
CONFIDENTIAL - SUBJECT TO MINNESOTA PROTECTIVE ORDER

The above matter came on for hearings on April 8, 1997, and April 15, 1997, before the Honorable Kenneth J. Fitzpatrick. Roberta Walburn, Esq., appeared and argued on behalf of Plaintiffs. David Bernich, Esq., appeared and argued on behalf of all Defendants with the exception of Liggett Group, Inc. The following also were present at one or both of the hearings and identified themselves as appearing on behalf of the party or parties set forth opposite their names:

Name	Party
Susan R. Nelson	State of Minnesota and Blue Cross and Blue Shield of Minnesota
Corey Gordon	State of Minnesota and Blue Cross and Blue Shield of Minnesota
Gary Wilson	State of Minnesota and Blue Cross and Blue Shield of Minnesota
Tara Sutton	State of Minnesota and Blue Cross and Blue Shield of Minnesota
Martha K. Wivell	State of Minnesota and Blue Cross and Blue Shield of Minnesota
Tom Pursell	State of Minnesota
Cheryl Heilman	State of Minnesota
Carol Bennett	State of Minnesota
Luanne Nyberg	State of Minnesota
Heather Gould	State of Minnesota
Brenda Mammerga	State of Minnesota
Joe Lovelad	State of Minnesota
Tom Gilde	Blue Cross and Blue Shield of Minnesota
Peter Sipkins	Philip Morris Incorporated
Bob Schwartzbauer	Philip Morris Incorporated
Maurice Leiter	Philip Morris Incorporated
Timothy Lindon	Philip Morris Incorporated
James I. Ham	Philip Morris Incorporated
Anne Walker	Philip Morris Incorporated
Chip Nunley	Philip Morris Incorporated
Tom Silfen	Philip Morris Incorporated
Charles Scarborough	Philip Morris Incorporated
Paul Dieseth	Philip Morris Incorporated
James Simonson	R. J. Reynolds Tobacco Company
Jonathan Redgrave	R. J. Reynolds Tobacco Company
Christopher Skorina	R. J. Reynolds Tobacco Company
Jack M. Fribley	Brown & Williamson Corporation
Ram Padmanabhan	Brown & Williamson Corporation
Patrick Bonner	B.A.T. Industries, p.l.c.
Gerald Svoboda	B.A.T. Industries, p.l.c.
David Martin	Lorillard Tobacco Company
Howard Roston	Lorillard Tobacco Company
John Monica	Lorillard Tobacco Company
Jeff Nelson	Lorillard Tobacco Company
Connie Iversen	Lorillard Tobacco Company
Craig Proctor	Lorillard Tobacco Company
Jeff Nelson	Lorillard Tobacco Company
Byron Starns	The American Tobacco Company
Tom McCormack	The American Tobacco Company
John Getsinger	The American Tobacco Company
Mary Yelenich	The American Tobacco Company
Larry Savell	The American Tobacco Company
Steven Kelley	Liggett Group, Inc.
Jim Stricker	Liggett Group, Inc.
Kirk Kolbo	The Council for Tobacco Research - U.S.A., Inc.
Eric Falkenstein	The Council for Tobacco Research - U.S.A., Inc.
Hal Shillingstad	The Tobacco Institute, Inc.
George Flynn	The Tobacco Institute, Inc.

David Shaffer of the St. Paul Pioneer Press, David Phelps of the Minneapolis Star Tribune, and other members of the public and media also attended and observed the proceedings.

Based upon the record and arguments of counsel, the Court makes the following

FINDINGS OF FACT

What the Tobacco Industry Promised to Do

1. Plaintiffs have produced evidence that the Defendants have acted in concert for their mutual benefit and defense, at least since 1954, when each of the Defendants with the exception of Liggett Group, Inc. (the "Non-Settling Defendants"), published a document under the name Tobacco Industry Research Committee, now the Defendant The Counsel for Tobacco Research - U.S.A., Inc. ("CTR"). This document, entitled "A Frank Statement to Cigarette Smokers" ("Frank Statement"), challenged the "theory that cigarette smoking is in some way linked with lung cancer in human beings." CTR MN 11309817.⁽¹⁾

A. In the "Frank Statement," the Non-Settling Defendants made the following statements, among others:

We accept an interest in people's health as a basic responsibility, paramount to every other consideration in our business.

We always have and always will cooperate closely with those whose task it is to safeguard the public health.

We are pledging aid and assistance to the research effort into all phases of tobacco use and health.

B. The "Frank Statement" also made three specific promises:

1. We are pledging aid and assistance to the research effort into all phases of tobacco use and health. This joint financial aid will of course be in additional to what is already being contributed by individual companies.

2. For this purpose we are establishing a joint industry group consisting initially of the undersigned. This group will be known as TOBACCO INDUSTRY RESEARCH COMMITTEE.

3. In charge of the research activities of the Committee will be a scientist of unimpeachable integrity and national repute. In addition there will be an Advisory Board of scientists disinterested in the cigarette industry. A group of distinguished men from medicine, science, and education will be invited to serve on this Board. These scientists will advise the Committee on its research activities.

2. Individual Defendants made additional promises, for example:

A. In 1962, Defendant The Tobacco Institute, Inc. ("Tobacco Institute") issued a press release which stated, in pertinent part:

We in the tobacco industry recognize a special responsibility to help science determine the facts. And we believe we are fulfilling this responsibility through the Tobacco Industry Research Committee.

PM 105136953, at 1005136955.

B. In 1971, the Tobacco Institute in a press release stated:

Any organization in a position to apply resources in the search for those keys - and which fails to do so - will continue to be guilty of cruel neglect of those whom it pretends to serve.

LG 0069275 at 0069279.

C. In a 1972 Wall Street Journal article, James Bowling, a Vice President of Defendant Philip Morris, Inc., ("PM") was quoted as saying:

If our product is harmful. . . we'll stop making it. We now know enough that we can take anything out of our product, but we don't know what ingredients to take out. . .

RJR 500324162 at 500342163.

D. In 1982, the Tobacco Institute published a pamphlet in which it wrote:

Since the first questions were raised about smoking as a possible health factor, the tobacco industry has believed that the American people deserve objective, scientific answers. The industry has committed itself to this task.

B&W 670500617.

E. In 1990, a public relations employee of Defendant R.J. Reynolds Tobacco Company ("RJR") wrote a letter to a person by the name of Rook in Minnesota, apparently in response to a letter from Rook. The public relations employee asserted in that letter that ". . . scientists do not know the cause or causes of the chronic diseases reported to be associated with smoking." The letter went on:

Our company intends, therefore, to continue to support [research] in a continuing search for answers.

RJR 507703861-03862

3. The Court finds that the facts presented by Plaintiffs constitute a prima facie case, for the limited purpose of establishing the crime-fraud exception to privilege, that a reasonable reader of the "Frank Statement" would conclude that he or she has been assured by the members of the Tobacco Industry Research Committee [now CTR] that those companies would not knowingly distribute a dangerous product. That same reader would also reasonably conclude that the three specific promises were made to solidify such an assurance rather than to limit it. Moreover, the findings above, both as to the Tobacco Industry⁽²⁾ and as to individual Defendants, reflect an effort to inform the American consumer that the tobacco industry was committed to providing safe products. For the limited purpose stated above, the Court finds that it is reasonable to conclude that this was the purpose of such statements, and it is reasonable to conclude that this was how such statements were viewed and relied upon by the consumer.

What the Industry Had Discovered

4. The Defendants and their representatives have, in fact, been aware that cigarette smoking is probably hazardous to the health of the smoker.

A. In 1959, an RJR scientist, Alan Rodgman, concluded that there is a "distinct possibility" that substances in cigarette smoke could have a carcinogenic effect. RJR 500945942.

B. In 1962, Rodgman wrote:

The amount of evidence accumulated to indict cigarette smoke as a health hazard is overwhelming, [while] the evidence challenging the indictment is scant.

RJR 504822847 at 504822850.

C. In 1967, G.F. Todd of the Tobacco Research Council wrote a letter to Mr. Addison Yeaman. Yeaman was the Vice President and general counsel of Brown & Williamson Tobacco Corporation. In his letter, Todd observed:

The only real difficulties that we encountered arose out of the unavoidable paradox at the centre of our operations - namely that, on the one hand the manufacturers control TRC's operations and do not accept that smoking has been proved to cause lung cancer while, on the other hand, TRC's research programme is based on the working hypothesis that this has been sufficiently proved for research purposes. In addition, the Council senior scientists accept that causation theory . . . We have not yet found the best way of handling this paradox.

LG 298942 at 298943.

D. In 1979, P.N. Lee of BAT expressed his impressions of a 1979 Surgeon General's report dated January 11, 1979. In this memorandum, Lee considered at length the Tobacco Institute publication entitled "The Continuing Controversy," also identified as TA73. BAT 100214029, beginning at 100214045. That document itself is identified as TIMN 84430. Lee characterized that report as "misleading." He wrote that the report did not appear to understand what causation is. Lee wrote:

Discussion of the role of other factors can be particularly misleading when no discussion is made of relative magnitudes of effects. For example, heavy smokers are observed to have 20 or more times the lung cancer rates of non-smokers. Sure, this does not prove smoking causes lung cancer, but what it does mean, and TA73 never considers this, is that for any other factor to explain this association, it must have at least as strong an association with lung cancer as the observed association for smoking (and be highly correlated with the smoking habit).

***

TA73 seems ready to accept evidence implicating factors other than smoking in the aetiology of smoking associated disease without requiring the same stringent standards of proof that it requires to accept evidence implicating smoking. This is blatantly unscientific.

BAT 100204046.

E. In 1984, a paper written by Colin Greig for BAT described a cigarette as ". . . a 'drug' administration system for public use . . . ." It further went on to state:

Within 10 seconds of starting to smoke, nicotine is available in the brain. Before this, impact is available giving an instantaneous catch or hit, signifying to the user that the cigarette is 'active.' Flavor, also, is immediately perceivable to add to the sensation.

BAT 100503495.

5. This Court finds that, for the limited purpose of establishing a prima facie case for application of the crime-fraud exception to privilege, the foregoing documents reasonably lead to the conclusion that the Tobacco Industry, and the individual Defendants, intentionally denied or minimized known health risks at the same time they internally discussed those health risks.

How Scientific Research was Handled

6. Legal counsel for the Tobacco Industry were actively involved in handling the scientific research being conducted by the Tobacco Industry. For example,

A. In 1978, Sheldon Sommers, M.D., who was then Chairman of the CTR Scientific Advisory Board, complained to William Gardner, who was then the Scientific Director for CTR, that he [Sommers] was unable to understand the legal counsel he was being given. The clear import of Sommers' letter was that the CTR lawyers were controlling tobacco research by CTR based upon legal considerations. CTR SF 0800031.

B. In 1970, Helmut Wakeham, head of Research and Development of the Philip Morris Company wrote a memorandum to the president of Philip Morris, Joseph Cullman. In this memorandum, Wakeham discussed the raison d'etre of The Counsel for Tobacco Research - U.S.A., Inc. ("CTR").⁽³⁾ Wakeham wrote:

It has been stated that CTR is a program to find out the 'truth about smoking health.' What is truth to one is false to another. CTR and the industry have publicly and frequently denied what others find as 'truth.' Let's face it. We are interested in evidence which we believe denies the allegations that cigarette smoking causes disease.

PM 2022200161, 2022200162.

C. A hand-written memorandum dated April 21, 1978, produced from the files of Defendant Lorillard Tobacco Company ("Lorillard"), complains that:

We have again abdicated the scientific research directional management of the Industry to the "Lawyers" with virtually no involvement on the part of the scientific or business management side of the business.

LOR 01346204.

D. A 1976 internal memo by a tobacco scientist at BAT, S.J. Green, also discusses the extent to which "legal considerations" dominated scientific research:

The public position of tobacco companies with respect to causal explanations of the association of cigarette smoking and diseases is dominated by legal considerations. . . By repudiation of a causal role for cigarette smoking in general they [the companies] hope to avoid liability in particular cases. This domination by legal consideration thus leads the industry into a public rejection in total of any causal relationship between smoking and disease and puts the industry in a peculiar position with respect to product safety discussions, safety evaluations, collaborative research etc.

BAT 109938433.

E. In November, 1979, the corporate counsel for B&W, Kendrick Wells, wrote a memorandum to Ernest Pepples, B&W's vice president of law. PM 2048322229. In this memorandum, Wells outlined a plan to wrap scientific information in attorney-client privilege. Mr. Wells' proposal specifically provided that ". . . in the operational context BAT would send documents without attempting to distinguish which were and which were not litigation documents." PM 20483222230.

7. In the pleadings which Plaintiffs have filed with the Court accompanying the motions on the subject of privilege, they have demonstrated that Defendants have claimed attorney-client privilege for and refused to produce thousands of documents which appear to be scientific in nature and specifically related to health issues. Affidavit of Tara Sutton, dated April 8, 1997, CLAD No.A01 842, paragraphs 2 and 3.

What the Industry Said to the Public

8. Over the years, Tobacco Industry spokespersons made many comments clearly intended to create doubt as to a connection between smoking and illness. For example:

A. In 1969, a CTR press release stated:

There is no demonstrated causal relationship between smoking and any disease. . . If anything, the pure biological evidence is pointing away from, not toward, the causal hypothesis.

B&W 670307882.

B. In 1970, a CTR press release stated:

The deficiencies of the tobacco causation hypothesis and the need of much more research are becoming clearer to increasing numbers of research scientists.

RJR 500015901 at 500015902.

C. In 1972, a Tobacco Industry advertisement stated:

After millions of dollars and over twenty years of research: The question about smoking and health is still a question.

TI MN 81352.

D. In 1972, a Tobacco Industry press release stated:

The 1972 report of the Surgeon General. . . 'insults the scientific community'. . . [T]he number one health problem is not cigarette smoking, but is the extent to which public health officials may knowingly mislead the American public.

TI 120602.

E. In 1978, a Tobacco Institute pamphlet stated:

The flat assertion that smoking causes lung cancer and heart disease and that the case is proved is not supported by many of the world's leading scientists.

RJR 500184766 at 500184776.

F. In 1983, an RJR advertisement said:

It has been stated so often that smoking causes cancer, it's no wonder most people believe this is an established fact. But, in fact, it is nothing of the kind. The truth is that almost three decades of research have failed to produce scientific proof for this claim . . . in our opinion, the issue of smoking and lung cancer is not a closed case. It's an open controversy.

RJR 504638051.

G. On February 2, 1984, the chairman of the board of RJR made the following comments as part of a panel discussion:

It is not known whether cigarettes cause cancer. RJR 502371216.
Despite all the research to date, there has been no causal link established [between smoking and emphysema]. RJR 502371217.
. . . as a matter of fact, there are studies that while we are accused of being associated with heart disease, there have been studies conducted over ten years that would say, again, that science is still puzzled over these forces. RJR 502371217.

9. The Court finds that, for the limited purpose of establishing a prima facie case for application of the crime-fraud exception to privilege, the foregoing statements by the Defendants and their representatives were intended to create doubt that cigarette smoking causes illness. It is reasonable to infer that these statements were relied upon by the public, at least to some extent.

Conclusion

10. The Plaintiffs have met their threshold burden of establishing a reasonable basis to believe that the crime-fraud exception to the general rule of privilege should be invoked in this matter with respect to the documents for which Defendants claim privilege. Defendants are now allowed an opportunity to present evidence to rebut the prima facie finding.

11. The Court's finding that Plaintiffs have made a prima facie case for crime-fraud is a finding made for the preliminary purpose of pretrial discovery procedure; this preliminary finding is not a finding that Defendants or any one of them has committed crime or fraud in this action.

12. The extraordinary number⁽⁴⁾ of documents which have been designated as privileged in this case makes it impossible to conduct an in camera inspection of each document individually to determine whether it is so closely related to Plaintiffs' prima facie showing of crime-fraud that any claim of privilege is lost. If each document for which privilege were claimed were to be examined individually, the trial in this matter could not commence until the next millennium. Accordingly, this Court must fashion a process and procedure which will balance the need for judicial efficiency and timeliness with due process.

13. In order to accommodate the competing needs of the parties in this case, it is necessary to categorize the documents subject to the claims of privilege. Such categories would necessarily include, but not be limited to, the type of privilege claimed (e.g., opinion work product, fact work product, attorney- client, or joint defense), the subject matter of the document, the maker of the document, and the recipient of the document, if any.

14. Once categorized, the Special Master appointed by the Court in this matter shall set a schedule for hearing the parties with respect to each such category of documents and make his determination as to the application of privilege.

ORDER

1. Based on the foregoing, the issues of privilege, and loss of privilege based on the crime-fraud exception, are herewith referred to the Special Master for consideration of the following:

A. Which documents subject to a claim of privilege are associated with the alleged crime-fraud of the Defendants to the extent that any valid claim of privilege would be lost.

B. With respect to the remaining documents, which documents are subject to valid assertions of privilege.

2. In resolving these questions, the Special Master and parties are instructed that consideration of these questions is to occur by category or grouping of documents, rather than on a document-by-document basis. To facilitate this process of review, the Special Master and the Court Observer shall require the parties to meet and confer within five (5) days to agree on and establish such categories. On the fifth day after filing of this Order, the parties shall submit their proposed categories to the Special Master via filing on CLAD. In the event that no such agreement can be reached by the parties, the Court will resolve the question itself, naming the categories into which the parties shall place their allegedly privileged documents. Once the categories have been established, the parties shall have ten (10) additional days to divide the documents for which they claim privilege into such categories and shall submit their categorized documents for review by the Special Master and argument by counsel on a schedule to be determined by the Special Master.

3. The process for review of documents to determine whether or not the documents are privileged, and whether or not such privilege has been lost or waived, shall begin with the Liggett documents:

A. All Liggett documents for which the Non-Settling Defendants do not claim a joint defense/common interest privilege shall be unsealed and released to Plaintiffs. The documents shall be placed in the Minneapolis depository in accordance with the procedures established in this case. Such documents include:

(1) Of the five boxes of Liggett documents filed with the Court, under seal, on March 28, 1997:

(A) All documents designated by Liggett as Liggett-only privileged documents, with the exception of those listed in paragraph 1 of this Court's Order Unsealing Certain Documents of Liggett Group, Inc., dated April 15, 1997 (CLAD A01 873).

[Previously released. See Stipulated Order Regarding Court's April 15, 1997, Order, filed April 28, 1997 (CLAD A01 903).]

(B) All documents, release of which has been agreed to by the Non-Settling Defendants, to wit:

LG 2004953/4960
LG 2004997/5006
LG 2004973/4996
LG 2004961/4972
LG 2006143
LG 2004915/4917
LG 2006651/6652
LG 2008291/8294
LG 2001184
LG 2004179
LG 2004270
LG 2006217/6219
LG 2006426/6429
LG 2006430/6451
LG 2006452/6473
LG 2006474/6477
LG 2006518/6551

LG 2006558/6561
LG 2007170/7175
LG 2007279/7281
LG 2007311/7341

[Previously released. See this Court's Order Unsealing Certain Documents of Liggett Group, Inc., dated April 15, 1997 (CLAD A01 873), paragraph 3, and Order Unsealing a Second Group of Certain Documents of Liggett Group, Inc., dated April 28, 1997 (CLAD A01 902).]

© Those documents to which Liggett has waived its privilege and to which the Non-Settling Defendants assert no Joint Defense/Common Interest Privilege (see Defendants' Objections to Disclosure of Documents Identified on Liggett's Privilege Log - Joint Defense Documents - 2, filed April 28, 1997 (CLAD A01 893) - Exhibit T), to wit:

LG 2001258/1438
LG 2001634/2059
LG 2002064/2105
LG 2002106/2137
LG 2002138/2173
LG 2002765/2801
LG 2002802/2837
LG 2002869/2902
LG 2002903/2938
LG 2002940/2941
LG 2002942/2979
LG 2002986/2987
LG 2003119/3136
LG 2003137/3171
LG 2003172/3192
LG 2003193/3226
LG 2003247/3293
LG 2003294/3298
LG 2003299/3304
LG 2003307/3311
LG 2003336/3337
LG 2003338/3349
LG 2003440/3514
LG 2003515/3550
LG 2003551/3586
LG 2003796/3832
LG 2003878/3885
LG 2003898/3934
LG 2003939/3942
LG 2003947/3951
LG 2003952/3992
LG 2003993/3997

(D) Those documents to which Liggett has waived its privilege and to which the Non-Settling Defendants assert no Joint Defense/Common Interest Privilege (see Defendants' Objections to Disclosure of Documents Identified on Liggett's Privilege Log - Joint Defense Documents - 2, filed April 28, 1997 (CLAD A01 893) - Exhibit U), to wit:

(2) Of the two boxes of Liggett documents received by Defendants on April 8, 1997:

(A) That document to which Liggett does not assert any privilege or protection and to which the Non-Settling Defendants assert no Joint Defense/Common Interest Privilege (see Defendants' Objections to Disclosure, filed April 23, 1997 (CLAD A01 893) - Exhibit I, to wit:

LG 0304127/4176

[Apparently released. See Letter to Hon. Kenneth J. Fitzpatrick, dated April 30, 1997 (CLAD A01 911).]

(3) Of the one box of Liggett documents received by Defendants on April 10, 1997:

(A) Those documents to which Liggett does not assert any privilege or protection and to which the Non-Settling Defendants assert no Joint Defense/Common Interest Privilege (see Defendants' Objections to Disclosure, filed April 23, 1997 (CLAD A01 893) - Exhibit M, to wit:

LG 0310305/0311 LG 0310505/0506

[Apparently released. See Letter to Hon. Kenneth J. Fitzpatrick, dated April 30, 1997 (CLAD A01 911).]

(B) That document to which Liggett does not assert any privilege or protection and to which the Non-Settling Defendants assert no Joint Defense/Common Interest Privilege (see Defendants' Objections to Disclosure, filed April 23, 1997 (CLAD A01 893) - Exhibit N, to wit:

LG 0308366/8374

[Apparently released. See Letter to Hon. Kenneth J. Fitzpatrick, dated April 30, 1997 (CLAD A01 911).]

(4) Of the eight boxes of Liggett documents filed with the Court, under seal, on April 10, 1997:

(A) Those documents to which Liggett has waived its privilege and to which the Non-Settling Defendants assert no Joint Defense/Common Interest Privilege (see Defendants' Objections to Disclosure of Documents Identified on Liggett Privilege Log - Joint Defense Documents - Box A, filed April 28, 1997 (CLAD A01 905) - Exhibit Y), to wit:

(B) Those documents to which Liggett has waived its privilege and to which the Non-Settling Defendants assert no Joint Defense/Common Interest Privilege (see Defendants' Objections to Disclosure of Documents Identified on Liggett Privilege Log - Joint Defense Documents - Box A, filed April 28, 1997 (CLAD A01 905) - Exhibit Z), to wit:

LG 2008897/8900
LG 2008913/8915
LG 2008921/8922
LG 2008973/8975
LG 2008976/8977

© Those documents to which Liggett has waived its privilege and to which the Non-Settling Defendants assert no Joint Defense/Common Interest Privilege (see Defendants' Objections to Disclosure of Documents Identified on Liggett Privilege Log - Joint Defense Documents - Box B, filed April 28, 1997 (CLAD A01 905) - Exhibit DD), to wit:

LG 2011851/1853
LG 2011854/1857
LG 2011859/1863
LG 2011864/1869
LG 2011870/1872
LG 2011873/1879

LG 2011880/1882

(D) The document to which Liggett has waived its privilege and to which the Non-Settling Defendants assert no Joint Defense/Common Interest Privilege (see Defendants' Objections to Disclosure of Documents Identified on Liggett Privilege Log - Joint Defense Documents - Box B, filed April 28, 1997 (CLAD A01 905) - Exhibit EE), to wit:

LG 2011858

(E) Those documents to which Liggett has waived its privilege and to which the Non-Settling Defendants assert no Joint Defense/Common Interest Privilege (see Defendants' Objections to Disclosure of Documents Identified on Liggett Privilege Log - Joint Defense Documents - Box D, filed April 28, 1997 (CLAD A01 905) - Exhibit KK), to wit:

LG 2017753/7755
LG 2017975/7981
LG 2017982/7984
LG 2018465/8466
LG 2018495/8496
LG 2018500
LG 2018501
LG 2018502
LG 2018503
LG 2018504
LG 2018505
LG 2018506/8607
LG 2018508/8513
LG 2018514
LG 2018515
LG 2018516/8518
LG 2018546
LG 2018547/8548
LG 2018549/8552
LG 2018554/8555
LG 2018558
LG 2018563
LG 2018564/8565
LG 2018566/8568
LG 2018569/8570
LG 2018572/8575
LG 2018576
LG 2018577/8591
LG 2018593
LG 2018594/8595
LG 2018596
LG 2018597/8600
LG 2018601/8602
LG 2018605/8606
LG 2018615/8622
LG 2018624

LG 2018627/8628
LG 2018629/8660

(F) Those documents to which Liggett has waived its privilege and to which the Non-Settling Defendants assert no Joint Defense/Common Interest Privilege (see Defendants' Objections to Disclosure of Documents Identified on Liggett Privilege Log - Joint Defense Documents - Box D, filed April 28, 1997 (CLAD A01 905) - Exhibit LL), to wit:

LG 2018494 LG 2018559/8562

(5) All other Liggett documents not otherwise listed herein, excepting only those listed on the Order Requiring Legible Copies of Certain Documents of Liggett Group, Inc., filed May 9, 1997, by this Court.

B. The Special Master is ordered to review the following documents, those for which the Non-Settling Defendants claim a joint defense/common interest privilege not claimed by Liggett, and determine whether the joint defense/common interest privilege asserted by the Non-Settling Defendants is valid:

(1) Of the five boxes of Liggett documents filed with the Court, under seal, on March 28, 1997:

(A) Those documents designated by Liggett as Liggett-only privileged documents, listed in paragraph 1 of this Court's Order Unsealing Certain Documents of Liggett Group, Inc., dated April 15, 1997 (CLAD A01 873); to wit:

LG 2002496
LG 2008179/8181
LG 2008291/8294
LG 2000027
LG 2000028/0029
LG 2000419
LG 2000431
LG 2000432/0433
LG 2000633
LG 2001184
LG 2003688/3706
LG 2004116
LG 2004128
LG 2004179
LG 2004270
LG 2004294
LG 2004310
LG 2004511

LG 2004714
LG 2005780
LG 2005869
LG 2006013/6014
LG 2006217/6219
LG 2006226
LG 2006426/6429
LG 2006430/6451
LG 2006452/6473
LG 2006474/6477
LG 2006518/6551
LG 2006558/6561
LG 2007170/7175
LG 2007279/7281
LG 2007311/7341
LG 2007990/7991
LG 2008038/8039

(2) Of the two boxes of Liggett documents received by Defendants on April 8, 1997:

(A) Those documents to which Liggett does not assert any privilege or protection, listed by the Non-Settling Defendants in Defendants' Objections to Disclosure, filed April 23, 1997 (CLAD A01 893) - Exhibit G, to wit:

LG 0303944/3954
LG 0304047
LG 0304750/4760
LG 0308285
LG 0308286/8287

[Copies filed with the court, under seal for in camera review, by Liggett on April 30, 1997. See Letter to Hon. Kenneth J. Fitzpatrick, filed April 30, 1997 (CLAD A01 911).]

(3) Of the one box of Liggett documents received by Defendants on April 10, 1997:

LG 0308468
LG 0309952/9957
LG 0310739
LG 0310807/0808
LG 0310827/0846

[Copies filed with the court, under seal for in camera review, by Liggett on April 30, 1997. See Letter to Hon. Kenneth J. Fitzpatrick, filed April 30, 1997 (CLAD A01 911).]

(4) Of the eight boxes of Liggett documents filed with the Court, under seal, on April 10, 1997:

(A) Those documents identified on Liggett Privilege Log - Non-Joint Defense Documents - Box G, listed by the Non-Settling Defendants in Defendants' Objections to Disclosure, filed April 28, 1997 (CLAD A01 905) - Exhibit TT, to wit:

(B) Those documents identified on Liggett Privilege Log - Non-Joint Defense Documents - Box H, listed by the Non-Settling Defendants in Defendants' Objections to Disclosure, filed April 28, 1997 (CLAD A01 905) - Exhibit WW, to wit:

C. As to the balance of the Liggett documents, those listed below and those which the Special Master has found, pursuant to paragraph B above, to be within the joint defense/common interest privilege, the Defendants shall divide the documents into categories according to the type of privilege claimed. The Defendants shall have the opportunity to rebut the prima facie showing made by Plaintiffs that the privilege should be lost under the crime-fraud exception. The Special Master shall set forth the schedule for briefing and argument of said rebuttal. Said documents include:

(1) Of the five boxes of Liggett documents filed with the Court, under seal, on March 28, 1997:

(A) Those documents identified on Liggett's Privilege Log - Joint Defense Documents - 1, listed by the Non-Settling Defendants in Defendants' Objections to Disclosure, filed April 15, 1997 (CLAD A01 872) - Exhibit A.

(B) Those documents identified on Liggett's Privilege Log - Joint Defense Documents - 2, listed by the Non-Settling Defendants in Defendants' Objections to Disclosure, filed April 15, 1997 (CLAD A01 872) - Exhibit C.

© Those documents identified on Liggett's Privilege Log - Joint Defense Documents - 2, listed by the Non-Settling Defendants in Defendants' Amended Objections to Disclosure, filed May 2, 1997 (CLAD A01 915) - Exhibit C1.

(2) Of the eight boxes of Liggett documents filed with the Court, under seal, on April 10, 1997:

(A) Those documents identified on Liggett Privilege Log - Joint Defense Documents - Box A, listed by the Non-Settling Defendants in Defendants' Objections to Disclosure, filed April 28, 1997 (CLAD A01 905) - Exhibit W.

(B) Those documents identified on Liggett Privilege Log - Joint Defense Documents - Box B, listed by the Non-Settling Defendants in Defendants' Objections to Disclosure, filed April 28, 1997 (CLAD A01 905) - Exhibit BB.

© Those documents identified on Liggett Privilege Log - Joint Defense Documents - Box C, listed by the Non-Settling Defendants in Defendants' Objections to Disclosure, filed April 28, 1997 (CLAD A01 905) - Exhibit GG.

(D) Those documents identified on Liggett Privilege Log - Joint Defense Documents - Box D, listed by the Non-Settling Defendants in Defendants' Objections to Disclosure, filed April 28, 1997 (CLAD A01 905) - Exhibit JJ.

(E) Those documents identified on Liggett Privilege Log - Joint Defense Documents - Box E, listed by the Non-Settling Defendants in Defendants' Objections to Disclosure, filed April 28, 1997 (CLAD A01 905) - Exhibit NN.

(F) Those documents identified on Liggett Privilege Log - Joint Defense Documents - Box F, listed by the Non-Settling Defendants in Defendants' Objections to Disclosure, filed April 28, 1997 (CLAD A01 905) - Exhibit QQ.

4. This process shall then be applied to the documents for which privilege is claimed by the remaining parties according to the schedule set forth by the Special Master.

Dated: May 9, 1997

BY THE COURT:

/s/ Kenneth J. Fitzpatrick
Kenneth J. Fitzpatrick

705CFSEA.ORD

MEMORANDUM

Background

Throughout the more than two and one-half years since this action was filed, the parties have expended an unprecedented amount of time and money in the discovery phase. Millions of pages of documents have been produced to date and deposited in the Minneapolis Depository for review by the parties. Of the millions of pages found to be responsive to discovery requests, the parties have claimed privilege with respect to approximately 150,000 documents. Pursuant to the Case Management Order,⁽⁵⁾ as amended, the parties have prepared "privilege logs" which contain objective information with respect to each document for which privilege is claimed. The parties have exchanged privilege logs. Based upon their review of the logs and the documents which have been produced to date, the Plaintiffs contend that the Defendants have improperly asserted privilege with respect to certain categories of documents, such as scientific studies. Whether privilege has been properly asserted is now ripe for consideration.⁽⁶⁾

On March 25, 1997, the Court appointed a Special Master to establish procedures for determining issues with respect to claims of privilege.⁽⁷⁾ In determining such procedures, the Special Master and the Court note that privilege is claimed for at least 150,000 documents. An in camera review of each and every of the 150,000 documents is a stupendous, if not impossible, undertaking. Arbitrarily assuming that it would take only five minutes to retrieve a document, check it against the privilege log, read it quickly, and assign it to a "privilege category" (such as ordinary work product or attorney-client communication), it would take the Special Master 750,000 minutes, or 12,500 hours, to review all the privileged documents. This is roughly 6.25 years of a lawyer's working career. To complete the task in two months, in order that documents found to be non-privileged would be available during the deposition period, it would take more than 30 people working 200 hours per month. Thus, an in camera review of each and every individual document, not to mention briefing and arguments with respect to such documents, is not feasible. An efficient procedure by which groups of documents can be examined and dealt with, while preserving due process, must be created and implemented.

The Court and the Special Master have considered the procedures and processes suggested by the parties. Some of the suggested procedures, indeed, would serve the cause of expediency and judicial efficiency. Others would provide extensive protection of due process rights. However, no one proposal appears to sufficiently balance the rights of the parties with the real problem of the sheer volume of documents for which privilege is claimed.

⁽⁸⁾

We have a unique opportunity to construct a process for determining privilege, a process that can be applied first to the Liggett documents, and later to the allegedly privileged documents of each of the other parties to this action. The process is as follows. As the preliminary step in the process, each party shall divide the documents for which it claims privilege into privilege classes or "categories" such as attorney-client, work product, and joint defense and deposit the documents with the Special Master. Once all the documents are assigned to the appropriate categories, the Special Master will apply the law with respect to that category to the documents in the category. On a schedule established by the Special Master, each party would have the opportunity to present arguments with respect to its categorized documents. Based on his review, the parties' arguments, and a random review or "spot check" of documents produced in each category, the Special Master will make his determination as to whether such documents are, indeed, entitled to the protection of privilege. The Court will then make the appropriate rulings.

By categorizing the documents and dealing with them in batches,⁽⁹⁾ we can reduce repetitious briefing and argument without sacrificing due process to the need for an expeditious determination in order to maintain a reasonable pretrial schedule.

Analysis

The relationship between an attorney and his or her client is unique. The attorney is the advocate of the client and his or her rights. In order to provide the best representation, communications between client and attorney must be uninhibited by fears that information shared might be disseminated to others. In order that the fullest communication can take place between client and attorney, the law has provided protection for these communications - the attorney-client privilege:

An attorney cannot, without the consent of the attorney's client, be examined as to any communication made by the client to the attorney or the attorney's advice given thereon in the course of professional duty; nor can any employee of the attorney be examined as to the communication or advice, without the client's consent.

Minn. Stat. § 595.02(b).

The attorney-client privilege is "the oldest of the privileges for confidential communications known to the common law." Upjohn Co. V. United States, 449 U.S. 383, 389 (1981). The party asserting the privilege has the burden of establishing the privilege. The elements of the attorney-client privilege are well established: (1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or the legal adviser, (8) except the protection be waived. Brown v. St. Paul City Ry. Co., 241 Minn. 15, 62 N.W.2d 688 (1954) (citing 8 Wigmore, Evidence (3d ed.) §2324).

The attorney-client privilege is nearly absolute. Such communications cannot be disseminated by the attorney, as the privilege belongs to the client. Only the client may waive the privilege. The privilege may be waived expressly or by disclosure of the information to a third party. Either the client or the client's attorney, on the client's behalf, can assert the privilege

Similarly, protection from disclosure is provided to the work product of the attorney. Attorney work product is divided into two categories - opinion work product and ordinary work product. Again, the party asserting the privilege has the burden of establishing that the privilege applies. Opinion work product is that consisting of an attorney's opinions, impressions, and theories: "[T]he court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation." Minn R. Civ. P. 26.02(c). Opinion work product is absolutely privileged from disclosure. Brown v. Saint Paul City Ry., 241 Minn. 15, 35, 62 N.W.2d 688, 701 (1954) ("[t]he immunity of the so-called 'work product of the lawyer[]' . . . was made absolute in our rule."); but c.f. Haines v. Liggett Group, Inc., 975 F.2d. 81, 94 ("[t]his court has accorded an attorney's work product almost absolute protection from discovery . . ." (emphasis added)).

Ordinary work product does not enjoy the same protection; the privilege is not absolute. "[D]ocuments and tangible things . . . prepared in anticipation of litigation or for trial by or for another party or by or for another party's representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent) [are discoverable] only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party's case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means." Minn. R. Civ. P. 26.02(c). Thus, ordinary work product is protected, but the protection will be withdrawn if the party seeking discovery of the ordinary work product can demonstrate substantial need for the information and is unable to obtain the information by other means.

Another privilege is the joint defense or "common interest" privilege. It is an extension of the attorney-client privilege. United States v. Schwimmer, 892 F.2d 237, 243 (2d Cir. 1989). It is invoked to protect communications between different persons or entities "when the communications are 'part of an on-going and joint effort to set up a common defense strategy.'" Eisenberg v. Gagnon, 766 F.2d 770, 787 (3d Cir.), cert. Denied, 474 U.S. 946 (1985). Defendants in this action claim that certain of the Liggett documents should not be disclosed because they are covered by the joint defense privilege. To establish this privilege, the Defendants "must show that (1) the communications were made in the course of a joint defense effort, (2) the statements were designed to further the effort and (3) the privilege has not been waived." Matter of Bevill, Bresler & Schulman Asset Management, 805 F.2d 120, 126 (3d Cir. 1986). "[T]he joint defense privilege cannot be waived without the consent of all parties to the defense." John Morrell & Co. V. Local Union 304A of United Food & Commercial Workers, 913 F.2d 544, 556 (8th Cir. 1990) (citations omitted). Defendants assert, correctly, that Liggett cannot waive the joint defense privilege; all parties must agree to do so. The non-settling Defendants, of course, have not. Thus, the Liggett documents over which Defendants claim a joint defense privilege must be examined. Defendants bear the burden of establishing the three elements listed above apply to the documents since they seek to apply the privilege to bar discovery.

Assuming that the party asserting the privilege can demonstrate the necessary elements for privilege to attach, the information may yet be discoverable. The privileges are not absolute. "[S]ince the privilege has the effect of withholding relevant information from the fact finder, it applies only where necessary to achieve its purpose." Haines v. Liggett Group, Inc., 975 F.2d 81, 84 (3rd Cir. 1992) (citing with approval Fisher v. United States, 425 U.S. 391,403 (1976)). In this matter, Plaintiffs argue that the privilege asserted by the Defendants is lost by application of the crime-fraud exception and, therefore, the documents should be made available.

The purpose of the crime-fraud exception to documents otherwise protected by the attorney-client privilege is "to ensure that the 'seal of secrecy' between lawyer and client does not extend to communications from the lawyer to the client made by the lawyer for the purpose of giving advice for the commission of a fraud or crime." Haines v. Liggett Group, Inc., 975 F.2d 81, 90 (3rd Cir. 1992) (emphasis in the original). "The advice must relate to future illicit conduct by the client . . ." Id. This is exactly what the Plaintiffs argue - that counsel for the tobacco industry advised the industry to conceal documents and research harmful to the industry by depositing the 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 Court, however, does not determine whether the crime or fraud averred has in fact occurred; it does not opine about the merits of the assertions of crime or fraud. It merely examines known facts to determine whether or not the party seeking disclosure has made a prima facie showing of crime or fraud. In re A. H. Robins Co., Inc., 107 F.R.D. 2, 9 (1985). The privilege blanket is torn away if the court finds that the documents in question "bear a close relationship to the client's existing or future scheme to commit a crime or fraud." Robins, 107 F.R.D. at 15, citing In Re Murphy, 560 F.2d 326, 338 (8th Cir. 1977).

In considering whether the crime-fraud exception may be applied to the facts of this case, this Court has made several findings relating to statements made by the Defendants to the public. Collectively, these statements could be characterized as assurances by the industry that it would make an honest attempt to learn whether the smoking of cigarettes created health hazards. The Court also concludes that the Defendants had an independent obligation to conduct research into the safety of its product, and to warn the product's consumers if the research results supported negative conclusions. A manufacturer has a special duty, apart from litigation, to keep abreast of the hazards posed by its products. See Jenkins v. Raymark Indus. Inc, 109 F.R.D. 269, 278 (E.D. Tex. 1985), aff'd, 782 F.2d 468 (5th Cir. 1986); see also Minnesota Civil Jury Instruction Guides, No. 117 ("You are instructed that the manufacturer is obligated to keep informed of scientific knowledge and discoveries in its field") and No. 119 (duty to warn). The cigarette industry itself has recognized this duty. PM 1000335622. Plaintiffs have presented evidence, and the Court has found, however, that the Defendants have claimed that safety-related scientific research conducted by the Defendants has been the subject of claims of attorney-client privilege.

At the same time, it is indisputable that the Defendants have made public statements intended to minimize or reduce fears that smoking is dangerous to one's health. This Court does not believe that Defendants should be permitted to use in its advertising and public relations campaigns, health-related research which supports their economic interests, and to claim privilege for research which may to lead the opposite conclusion. See Laughlin v. A.H. Robins, Minn. Dist. Ct. No. 776-868 (March 21, 1984). If the Defendants had an obligation to disclose the hazards of tobacco products, and this Court concludes that they did, their obligation to disclose cannot be eliminated by the assertion of attorney-client privilege.

A two-part test is necessary in determining whether the crime-fraud exception applies to the privileged material.

First, there must be a prima facie showing that the client was engaged in criminal or fraudulent conduct when he sought the advice of counsel, that he was planning such conduct when he sought the advice of counsel, or that he committed a crime or fraud subsequent to receiving the benefit of counsel's advice. Second, there must be a showing that the attorney's assistance was obtained in furtherance of the criminal or fraudulent activity or was closely related to it.

Haines v. Liggett Group, Inc., 140 F.R.D. 681 (D.N.J. 1992) (citing In re Grand Jury Investigation, 842 F.2d 1223, 1226 (11th Cir. 1987)(citations omitted)), order vacated on other grounds, 975 F.2d 81 (3rd Cir. 1992).

The burden of establishing that the crime-fraud exception should apply now falls on the Plaintiffs. The Plaintiffs "bear[] the burden of presenting a prima facie case that the crime-fraud exception applies. Levin v. C.O.M.B. Co., 469 N.W. 2D 512, 515 (Minn. Ct. App. 1991). Just what constitutes a prima facie case has been expressed by the courts in different words, yet the evidentiary standard is fundamentally the same. The Supreme Court used these words: "To drive the privilege away, there must be 'something to give colour to the charge;' there must be 'prima facie evidence that it has some foundation in fact.' When the evidence is supplied, the seal of secrecy is broken." Clark v. United States, 289 U.S. 1, 14-15 (1933) (citations and footnote omitted). The Second Circuit phrased it a little differently: "[The tests] require that a prudent person have a reasonable basis to suspect the perpetration or attempted perpetration of a crime or fraud, and that the communications were in furtherance thereof." In re Grand Jury Subpoena Duces Tecum, 731 F.2d 1032, 1039 (2d Cir. 1984).

The evidentiary burden is lessened when disclosure is initially made only to the Court or Special Master for an in camera review, because such an inspection is a lesser intrusion into the attorney-client communications than full public disclosure. United States v. Zolin, 491 U.S. 554, 572 (1989).

Before engaging in in camera review to determine the applicability of the crime-fraud exception, "the judge should require a showing of a factual basis adequate to support a good faith belief by a reasonable person," Caldwell v. District Court, 644 P.2d 26, 33 (Colo. 1982), that in camera review of the materials may reveal evidence to establish the claim that the crime-fraud exception applies.

Once that showing is made, the decision whether to engage in in camera review rests in the sound discretion of the district court.

Id.

Thus, the Court or Special Master may examine the submission of the Plaintiffs and decide whether there is enough factual evidence "to support a good faith belief by a reasonable person that the materials may reveal evidence of a crime or fraud." Haines v. Liggett Group Inc., 975 F.2d 81, 96 (3rd cir. 1992). This is only a preliminary step, however. It can result, at best, in an in camera review of the challenged document. To determine whether or not the exception applies, the Defendants must "be given an opportunity to be heard, by evidence and argument, at the hearing seeking an exception to the privilege." Id. at 97. This evidentiary hearing must provide due process, i.e. "notice and an opportunity to be heard at a meaningful time and in a meaningful manner." In re A.H. Robins Co., Inc., 107 F.R.D. 2, 6 (1985) (citing In Goldberg v. Kelly, 397 U.S. 254, 267 (1970)). The fact finder then will apply the crime-fraud exception only when it "determines that the client communication or attorney work-product in question was itself in furtherance of the crime or fraud." In re Richard Roe, 68 F.3d 38, 40 (2nd Cir. 1995).

The court has the discretion whether or not to engage in an in camera review and the extent of that in camera review.

[T] decision whether to engage in in camera review [should] rest[] in the sound discretion of the [trial] court. The court should make that decision in light of the facts and circumstances of the particular case, including, among other things, the volume of materials the [] court has been asked to review, the relative importance to the case of the alleged privileged information, and the likelihood that the evidence produced through in camera review, together with other available evidence then before the court, will establish that the crime-fraud exception does apply.

United States v. Zolin, 491 U.S. 554,572 (1989). It follows, then, that the court must exercise its discretion in light of the factors set forth in Zolin to create a process that balances the need for judicial efficiency with the parties' due process rights. The process set forth herein, infra, has been designed to do just that

While other courts have mentioned examination of up to 15,000 pages of documents, this suit involves ten times that amount. An in camera review of each and every individual document for which a privilege is asserted, followed by rebuttal arguments and submissions, would take years. The court will not countenance such a delay. Accordingly it incorporates the "categories" system, similar to the "batches of documents" system set forth in the Robins case.

Conclusion

Pursuant to the Attorneys General Settlement Agreement dated 3/20/97, Liggett has produced documents for which it claimed privilege. Liggett has waived its privilege with respect to certain of those documents, and such documents have been ordered produced to the Plaintiffs herein. Defendants claim a joint defense privilege with respect to the remaining documents produced by Liggett. Plaintiffs, however, have made a prima facie case to invoke the crime-fraud exception. Thus, further review of the remaining Liggett documents by the Special Master is warranted. Such review shall proceed according to the procedures established herein by the Special Master and approved by this Court, which procedures shall apply to all parties' allegedly privileged documents unless otherwise ordered.

K.J.F.

1. All references herein, unless otherwise indicated, are to the Bates numbers of documents produced in this action and made a part of the parties' submissions with respect to these hearings. This document, for example, was produced by CTR for the Minnesota litigation (this action) and is Bates-stamped number 11309817.

2. For purposes of this order and memorandum, the phrase "Tobacco Industry" refers to all of the Defendants as a whole.

3. CTR is a named defendant in this action. It is the successor organization to the Tobacco Industry Research Committee.

4. The parties have represented that at least 150,000 documents have been listed on the privilege logs to date; no party, with the exception of Liggett, has yet completed its privilege logs.

5. See Case Management Order, dated March 29, 1995.

7. See Order Referring Certain Matters to a Special Master, dated March 25, 1997.

8. See Order Unsealing Certain Documents of Liggett Group, Inc., filed April 15, 1997; Order Unsealing a Second Group of Certain Documents of Liggett Group, Inc., filed April 28, 1997; and subsequent Orders.

See Order Unsealing Certain Documents of Liggett Group, Inc., filed April 15, 1997; Order Unsealing a Second Group of Certain Documents of Liggett Group, Inc., filed April 28, 1997; and subsequent Orders.

9. The review of 'batches' of documents as opposed to a document-by-document review was specifically envisioned by the U.S. District Court, District of Kansas. In Re A.H. Robins Co., Inc., 107 F.R.D. 2, 15 (1985).

Judge of District Court

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Tobacco Documents - Order Regarding Privilege and the Crime-Fraud Exception and Setting Forth Procedures to Determine Privilege Beginning with the Liggett Documents (May 9, 1997)

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