Tobacco Documents - Order with Respect to Non-Liggett Defendants' Objections to the Special Master's Report Dated February 10, 1998 (March 7, 1998)
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,
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. | ORDER WITH RESPECT TO
NON-LIGGETT DEFENDANTS'
OBJECTIONS TO THE
SPECIAL MASTER'S REPORT
DATED FEBRUARY 10, 1998 |
The above matter came on for hearing on February 16, 1998, before the Honorable Kenneth J. Fitzpatrick. Robert Weber, Esq., appeared and began arguments on behalf of R.J. Reynolds Tobacco Company specifically and on behalf of all Defendants generally with the exception of Liggett Group, Inc. (herein "Non-Liggett Defendants"). David Bernick, Esq., appeared and argued on behalf of Brown & Williamson Tobacco Company with respect to 108 inadvertently logged documents. Noel Clinard, Esq., appeared and argued on behalf of Philip Morris Incorporated with respect to 458 additional documents allegedly related to nicotine and addiction sought by Plaintiffs. Michael Corrigan, Esq., appeared and argued on behalf of B.A.T. Industries, p.l.c., with respect to a footnote on page nine of the Special Master's Report. Roberta Walburn, Esq., appeared and argued on behalf of Plaintiffs. Additional counsel were present at the hearing on behalf of their clients. Members of the public and the media also attended and observed the proceedings.
The Court makes the following ORDER based upon the record, arguments of counsel, and supplemental filings made by the parties.
WHEREAS, the Non-Liggett Defendants have raised certain objections to the Report of Special Master: Findings of Fact, Conclusions of Law, and Recommendations, filed February 10, 1998 (CLAD docket # 2224) ("Special Master 's Report"), with respect to the documents for which the Non-Liggett Defendants claim privilege ("Non-Liggett Documents");
WHEREAS, this Court has carefully reviewed the Special Master's Report, the submissions of the parties, and the record with respect to the matters at issue;
WHEREAS, Category 1 contains the 457 documents listed in Appendix A,(1) not 365 as inadvertently stated in paragraph 317 of the Special Master's Report;
WHEREAS, the Court finds that the Non-Liggett Defendants had numerous, full, and fair opportunities to be heard with respect to the Non-Liggett Documents for which they asserted attorney-client privilege, work product privilege, and/or joint defense/common interest privilege as well as the procedure by which said documents were examined and evaluated;
WHEREAS, the Court finds that the Non-Liggett Defendants suffered no lack of due process;
WHEREAS, the Court finds the Report of the Special Master to be well-reasoned and supported by the law and by the evidence on the record;
THEREFORE, IT IS HEREBY ORDERED:
1. The Findings of Fact, Conclusions of Law, and Recommendations of the Report of the Special Master dated February 10, 1997 (CLAD docket # 2224) incorporated herein by reference, are hereby approved and adopted by this Court with the clarifications stated below. The Report as clarified shall constitute an Order of this Court in this action. Said document shall be released from seal, clarified as stated below, and made a part of the public record.
a. Paragraph 15 of the Special Master's Report shall be clarified by the addition of the following footnote: "B.A.T. Industries, p.l.c. ("BAT Ind."), British-American Tobacco Company Limited ("BATCo"), and B.A.T. (U.K. and Export) Limited ("BATUKE") have never themselves been members of the Tobacco Industry Research Committee ("TIRC") or the Council for Tobacco Research ("CTR") and did not themselves sign the "Frank Statement." Their subsidiary or sister corporation in the United States - Brown and Williamson Tobacco Company ("B&W") - did sign the Frank Statement and was a member of the TIRC, later CTR."
b. Paragraph 40 of the Special Master's Report shall be clarified by the addition of the following footnote: "Attorneys representing BAT Ind., BATCo, or BATUKE exclusively were not members of the Committee of Counsel. Attorneys representing their subsidiary or sister corporation in the United States - B&W - were active members."
c. Paragraph 295 of the Special Master's Report shall be clarified by replacing the words "in furtherance of the conduct or was closely related to it" with "in furtherance of the conduct and was closely related to it."
d. Paragraph 317 of the Special Master's Report shall be clarified by replacing the words "plaintiffs designated 365 privilege documents" with the words "plaintiffs designated 457 privilege documents."
2. The Court makes the following additional Findings of Fact:
a. Defense counsel could not make the unqualified representation that all documents were properly categorized.(2) The Court agrees with the Special Master's conclusion that "plaintiffs in this case must be permitted to inspect documents withheld on claims of privilege which relate [to] nicotine addiction and manipulation (even if such documents are privileged in the first instance.)" Special Master's Report paragraph 306 (emphasis added). Plaintiffs have listed documents which Non-Liggett Defendants have described in their privilege logs using the words "nicotine" or "addiction"(3) which were not placed in Category 3. Accordingly, documents listed in Exhibit 1 shall be remanded to the Special Master for examination as set forth below.
b. Upon review of randomly selected documents, it has been determined that Defendants have in numerous instances claimed privilege where none is due and blatantly abused the categorization process. Examples include, but are not limited to, the following:
(1) Brown and Williamson Tobacco Corporation ("B&W") produced document 689453650-3860, placing it in "Category 8 - Advertisement." B&W described this document as attorney work product prepared by in-house counsel for a BAT Canadian affiliate with whom B&W maintains a common legal interest, identifying and evaluating the significance of certain company documents produced as exhibits in the course of litigation. The actual title of this document, however, is "Series B, ITL Documents: Apparent Difficulties and Relevant Facts, Volume II, Project 16 and Project Plus-Minus" and labeled "for internal use with the B.A.T. group of companies." Under the heading "Apparently Problematic Research, " the author, Kwechansky Marketing Research, Inc., has noted: "The research was conducted among 16-17 year olds." @ 689453653. "The research examined the behaviour of youth towards starting, smoking and quitting and their attitudes to these activities." Id. "The studies reported on youngsters' motivation for starting, their brand preferences, etc. as well as the starting behaviour of children as young as 5 years old." @ 689453654. "The studies examined examination [sic] of young smokers' attitudes towards 'addiction,' and contain multiple references to how very young smokers at first believe they cannot become addicted, only to later discover, to their regret, that they are." Id. Certainly this document should have been placed in "Category 7 - Children," a category specifically released via this Court's December 16, 1997, Order.(4)
(2) American Tobacco Company ("American") placed a document in "Category 7 - Children" which references a doctor "who had the recent AMA article criticizing the articles etc. associating cigarette smoking causally with heart and cardiovascular diseases." ATMNPRIV0009796-98 The doctor preferred to be a consultant to a law firm and refused to take grants. "Instead of paying for expenses, . . . he should cover this [travel expenses] in his consultation charges. This is to be a Special Account #11 Item." @ 9796 (emphasis in the original). Since the document expressly refers to a Special Account, it should have been categorized as Category 4b - a category which was released by the Court in its December 16, 1997, Order.
(3) A document produced from the files of B.A.T. Industries, p.l.c., was described as legal advice from external counsel re legal issues in US smoking and health litigation and placed in "Category 9 - Discovery." While this is the correct category, the document itself states: "There appears to have been an effort, at different times, to disguise the fact that material was routinely sent to B&W or, at least, to attempt to make it attorney privileged." In his note to Dr. Blackman, Morini suggests that "contentious" items from R&DC be transmitted "through me to Pepples thus maintaining the legal privilege - 'attorney work product.'" BAT 503144927-45 at 503144942. Such evidence is highly relevant to claims of abuse of the work product privilege in this litigation.
(4) Numerous documents found via examination of documents placed in "Category 12 - Other" reveal that a more proper categorization would have been "Category 3 - Science" or "Category 4b - Special Projects," for which privilege cannot be claimed. For example, B&W 620619083-85 refers to grants and research and B&W 521035153 refers to "a new research period."
(5) B&W produced document 383003577 which they describe on their privilege log as "attorney work product prepared to identify subjects covered in a deposition conducted in connection with the case entitled Rogers et al. v. RJ Reynolds Tobacco Company et al." The document is nothing but a file folder tab labeled "III. INDEPENDENT STUDIES" which words, of course, were redacted on the copy provided for Plaintiffs.
(6) The Tobacco Institute, Inc. ("TI") claimed privilege for a deposition of Anne Duffin, in camera. Ms. Duffin is a former TI employee; and her deposition included topics such as whether the deponent was seeking legal advice from in-house and outside counsel for TI, a Special Master's determination regarding the deponent's contacts; the "White Paper," and attorneys acting in an editorial role when it came to reviewing documents concerning scientific and medical information. TIMN 8001-8036.
(7) The Council for Tobacco Research - U.S.A., Inc. ("CTR") classified document HK 0670077 as "Category 12 - Other" despite its subject - Franklyn Institute's proposal of January 23, 1978, regarding a scientific study on tobacco glycoprotein - which would more properly have been classified as "Category 3 - Science."
(8) Lorillard Tobacco Company ("Lorillard") placed document 87660429-0473A in "Category 12 - Other." This report entitled "Why Bio-Research" details Lorillard's collaborative association with "Bio-Research" and others with respect to scientific research and includes such matters as mouse skin painting tumor data, a copy of "Gelhorn-On the Cocarcinogenic Activity of Cigarette Tobacco Tar" (Cancer Research 1958) which is characterized as the first study undertaken by Bio-Research for Lorillard, Dr. Spears's discussions of numerous variables in experimental design to assess carcinogenic activity of smoke condensate subfractions, etc. Such a scientific report should have been classified as "Category 3 - Science" which was released.
3. Non- Liggett Defendants may claim no privilege for the following documents (hereafter "Released Documents") subject to the exceptions set forth in paragraph 7 of this Order:
a. All Non-Liggett Documents designated by Defendants and Plaintiffs as Category 1, i.e., the 458 documents listed in Exhibit 1.
b. All Non-Liggett Documents designated by Defendants as Category 3.
c. All Non-Liggett Documents designated by Defendants as Category 4b.
d. All Non-Liggett Documents designated by Defendants as Category 5.
4. The Released Documents shall be made available to Plaintiffs and deposited within the Minneapolis Depository (if they have not already been so deposited) within forty-eight (48) hours from the date and time of filing of this Order. Failure to do so without good cause shown shall be deemed cause for imposition of sanctions.
5. Non-Liggett Defendants' Motion for Stay of Document Production is DENIED.
6. The Special Master shall supplement his February 10, 1998, Report after examining randomly selected documents from Categories 7, 8, and 12. The Special Master shall specifically report abuses of the categorization process. Documents in those categories exhibiting violation of the Court's Orders, as well as those which constitute non-privileged information or those for which privilege has been lost, may be released by subsequent order of this Court.
7. With respect to the 108 documents which Defendant B&W claims were inadvertently produced, said documents shall remain in the Minneapolis Depository in the form produced. The Special Master shall examine each of the eighteen documents listed in the Affidavit of Todd Gale filed February 12, 1998 (CLAD # 2245) and determine whether any or all such documents, or any portions thereof, shall be released subject to appropriate legal objections at trial, e.g., objections for relevance or hearsay. In making such determination, the Special Master shall consider the Orders of this Court, including but not limited to, Order Granting in Part and Denying in Part Plaintiffs' Motion in Limine for an Order Excluding Post-1994 Material, filed February 4, 1998 (CLAD # 2187).
8. With respect to the 458 documents listed in Exhibit 1 which Plaintiffs claim were miscategorized (i.e., those which contain references to nicotine or addiction and should have been categorized as Category 3), such documents shall be remanded to the Special Master for further examination of a random sample to determine whether same were miscategorized. Because Defendant R.J. Reynolds claims that, of these 458 documents, 68 documents were authored by Jones Day and constitute attorney opinion work product,(5) the Special Master shall examine a randomly selected number of said 68 documents to determine whether same were miscategorized. If the Special Master finds that mischaracterization is more than a statistical anomaly, privilege shall be waived as to all the documents listed in Exhibit 1; the Court will not tolerate a pattern of abuse of the categorization process.
9. As mandated by the Rules of Civil Procedure, Non-Liggett Defendants and counsel for same are ordered to pay Plaintiffs the reasonable expenses incurred, including attorneys' fees, because of the Non-Liggett Defendants' improper claims of privilege and noncompliance with the Court's Orders. To assist the Court in determining the appropriate amount, Plaintiffs shall within thirty (30) days submit their affidavit of costs and expenses, including attorneys' fees, incurred with respect to this issue.
9. This Order does not apply to any document from which a Non-Liggett Defendant has withdrawn its claim of privilege. The Court notes, however, that the substantial number of documents from which Defendants withdrew claims of privilege after the Special Master's initial review of Liggett documents suggests that claims of privilege were not always made in good faith.
10. The attached memorandum is incorporated herein by reference.
11. To the extent that this Court's Order with Respect to Non-Liggett Defendants' Objections to the Special Master's Report Dated September 10, 1997, and the Memorandum incorporated therein, filed December 16, 1997 (CLAD # 1821), are not inconsistent with this Order, they are hereby incorporated by reference.
Dated: March 7, 1998 BY THE COURT:
/s/ Kenneth J. Fitzpatrick
Kenneth J. Fitzpatrick
Judge of District Court
M E M O R A N D U M
BACKGROUND AND PROCEDURES
Non-Liggett Defendants(6) in this action have objected to producing certain documents, claiming attorney-client privilege, work product privilege, and/or joint defense/common interest privilege with respect to more than 230,000 documents, comprising more than one million pages. Plaintiffs demanded production of the documents. Non-Liggett Defendants refused. After meeting and conferring in attempts to resolve the issue, the parties were unable to come to a mutually agreeable solution. The procedures for this Court's determination as to whether certain documents must be produced were described in this Court's December 16, 1997, Order and thus will not be repeated here, other than to note that (1) this Court found that Plaintiffs had established a prima facie case of crime/fraud on the part of Defendants; (2) the Minnesota Court of Appeals found that Non-Liggett Defendants' challenge to the categorical review process ordered by this Court to be untimely;(7) and (3) reiterating that the categories into which documents were to be designated(8) are:
1. Other Litigation (Documents reviewed in other litigation for which privilege was denied)
2. No Attorney Identified (Documents that, on their face, do not indicate they were written or received by an attorney.)
3. Science (Documents relating to or referencing scientific research or research reports on smoking and health.)
4. Attorney-Related Involvement in Smoking and Health:
4.A. Communications of Counsel (Documents relating to or referencing the Committee of Counsel, Scientific Liaison Committee, or Research Liaison Committee.)
4.B. Special Projects (Documents relating to or referencing "Special Projects" including CTR Special Products, Lawyers' Special Projects, or Special Accounts.)
4.C. LS, Inc. (Documents relating to or referencing LS, Inc., 3i, or LRD which were formed to index, store, and retrieve information relating to smoking and health for the tobacco industry.)
5. Public Statements (Documents relating to or referencing positions taken or statements made by a defendant or by the industry regarding smoking and health.)
6. Additives (Documents relating to or referencing ingredients, formulae, constituents, chemicals, or components added to tobacco or tobacco products.)
7. Children (Documents relating to or referencing persons under age 18.)
8. Advertisements (Documents relating to or referencing advertising, promotion, or marketing of cigarettes.)
9. Discovery (Documents relating to or referencing requests for information, including document destruction and document transfer..)
10. Government Regulations (Documents relating to or referencing regulatory activity by the government, including labeling.)
11. Patents/EPA (Documents relating to or referencing the Environmental Protection Agency or patents.)
12. Other Documents (Documents for which privilege is claimed which do not fit into any of the previous categories.)
The issues of privilege and loss of privilege based on the crime-fraud exception were referred to the Special Master appointed in this matter (see May 9, 1997, Order at p. 13, para. 14). The privilege review process commenced with the Liggett Settlement Documents, hearings on which concluded in July, 1997. The parties were invited to submit suggestions and recommendations with respect to the privilege review process, and a number of procedural changes were ordered by the Special Master.(9)
With respect to the Non-Liggett Documents, the Special Master generated a random selection of the hundreds of thousands of documents, including a selection from each party's documents in each category. Presentations and arguments by the parties, in open court and ex parte, with respect to the randomly selected documents and any other documents which the parties chose to present took place before the Special Master on October 15, 16, 17, and 18, 1997. Upon conclusion of the hearings, the parties were ordered to submit their proposed findings of fact and conclusions of law for consideration by the Special Master.
After review of the record and each of the hundreds of randomly selected documents, the Special Master issued the Report of Special Master: Findings of Fact, Conclusions of Law, and Recommendations Regarding Non-Liggett Privilege Claims (CLAD # 2224, filed February 10, 1998) ("Special Master's Report"). In his extensive and well-supported report, the Special Master found that the Non-Liggett Defendants failed to rebut the Court's prima facie finding of crime-fraud and that privilege was lost with respect to certain categories of documents. He also found that some categories contained documents which were not, in the first instance, attorney-client privileged. The Special Master recommended release of all documents the Non-Liggett Defendants placed in categories 1, 3, 4b, and 5 - more than 30,000 documents. The Special Master sustained the Non-Liggett Defendants' privilege claims for documents in categories 2, 4a, 4c, 6, 7, 8, 9, 10, 11, and 12.
The Non-Liggett Defendants, however, raised numerous objections to the Special Master's Report. The Court offered them yet another opportunity to be heard - the opportunity to present the Court with their objections and rebuttal arguments at the hearing on February 16, 1997. After review of the record herein, the objections and argument of Defendants, oral and written, as well as Plaintiffs' submissions, this Court finds that the evidence of record unequivocally supports the findings of the Special Master; and the Court adopts each and every recommendation of the Special Master with the de minimus clarifications set forth in the Order. The claims of privilege for documents placed by the Non-Liggett Defendants in categories 1, 3, 4b, and 5 are denied and all documents in said categories shall be released.
ABUSE OF PRIVILEGE AND VIOLATION OF THE RULES OF COURT ARE, THEMSELVES, SUFFICIENT GROUNDS TO ORDER RELEASE OF DOCUMENTS
The relevant portions of the Court's December 16 Order with respect to abuse of privilege and violation of the rules of court are adopted and incorporated herein.
The Court is very troubled by the fact that the Non-Liggett Defendants continue to violate the orders of this Court. For example, the Special Master ordered that a redacted copy of each selected document for which privilege was claimed was to be provided to the Plaintiffs prior to the Special Master hearings. The record reflects that in some instances Non-Liggett Defendants failed to provide redacted copies until their failure to do so was brought to the attention of the Special Master.
The Court's review indicates that Non-Liggett Defendants and each of them claimed privilege for documents which are clearly and inarguably not entitled to protections of privilege. Again, this Court finds, as it did with respect to the Liggett Settlement Documents, that many documents examined contained nothing of a privileged nature, establishing a pattern of abuse.
Certain Defendants complain that the documents they chose from selected categories demonstrate attorney opinion work product; this may indeed be so. However, despite the fact that certain documents in a category may contain privileged material, abuse of the privilege claim with respect to even one document taints the category. Defendants had a myriad of opportunities to determine whether a claim of privilege could be properly made. Indeed, the Court expressly put counsel on notice that counsel personally or those under counsel's supervision were to have reviewed each document on the privilege log so that counsel could represent that privilege was properly claimed.. The intentional and repeated misuse of claims of privilege is intolerable in a court of law, and an appropriate sanction for such abuse is release of all documents for which privilege is improperly claimed. If a spot-check of documents reveals a pattern of abuse, a document-by-document review (if it were even possible) would more probably than not reveal even more abuses.
A reviewer less cautious and conservative than our Special Master might have recommended that even one discovered abuse be sufficient to deny privilege for the entire set of documents. Plaintiffs, however, express their acquiescence with the recommendations of the Special Master even though many important and probative documents may remain cloaked in privilege. With trial underway, this Court will permit the light of discovery to permeate the categories of documents which the Special Master recommended be released and allow unchallenged categories to remain in cloaked in privilege for the present.
STANDARD OF REVIEW OF SPECIAL MASTER'S REPORT The Court has examined the Special Master's findings of fact and found that his findings are not "clearly erroneous." See Minn. R. Civ. P. 53.05(2); 2 Herr & Haydock, Minnesota Practice § 53.14 (2d ed. 1985). Because the proper standard of review has been met, the Special Master's findings of fact are accepted and adopted by this Court.
NON-LIGGETT DEFENDANTS' DUE PROCESS RIGHTS
Non-Liggett Defendants complain that their Due Process rights were violated because the category-by-category review prevented them from adequately defending their privilege claims and presenting rebuttal evidence and allowed Plaintiffs to shirk their burden of showing that any document was "in furtherance of" and "closely related to" a crime or fraud. The Court rejects this argument and incorporates the relevant portions of its December 16, 1997, Order.
APPLICATION OF CORRECT LEGAL STANDARDS
OF ATTORNEY-CLIENT PRIVILEGE,
WORK PRODUCT DOCTRINE, AND THE CRIME-FRAUD EXCEPTION
The Non-Liggett Defendants claim that the Special Master has failed to apply the correct legal standards in making his report and recommendations. The Court rejects this argument and incorporates the relevant portions of its December 16, 1997, Order. The attorney-client and work product privileges in this case are ancient but not honored.
The Court finds that the standard for application of the crime-fraud exception has been correctly applied. The Levin court set forth the test which must be met to invoke the crime-fraud exception: "To invoke the crime-fraud exception to the attorney-client privilege, Levin must establish a prima facie showing that the communication was (1) made in furtherance of a crime or fraud and (2) was closely related to the fraud." Levin v. C.O.M.B. Co., 469 N.W.2d 512, 515 (Minn. Ct. App. 1991), petition for review denied (Minn. July 24, 1991) . The Special Master expressly stated that the two prongs of his inquiry were whether he was "satisfied by a preponderance(10) of the evidence offered by both plaintiffs and defendants that the defendants were engaged in criminal or fraudulent conduct[.] Included within "criminal or fraudulent conduct" are a failure to conduct appropriate research into the safety of their products and failure to warn their products' consumers if the research supported negative conclusions. Second, has it been demonstrated by a preponderance of the evidence that the involvement of defendants' attorneys was in furtherance of the conduct or was closely related to it?" Special Master's Report paragraph 295. These inquiries meet, indeed exceed, the requirements set forth in Levin and are those criteria expressly set forth by this Court in its Order of May 9, 1997 (citing 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)). Moreover, the Court notes that, despite the use of the word "or" in paragraph 295 of the Special Master's Report, the Special Master did, indeed, consider both whether the evidence showed that the involvement of Defendants' attorneys was in furtherance of the conduct and was closely related to it. See, e.g., paragraphs 325, 327, 367, 393, 407, 414, and 418 of the Special Master's Report. Accordingly, paragraph 295 of the Special Master's Report shall be clarified by replacing the word "or" with the word "and." Substantively, the Special Master's Report is sound; there is no evidence that the Special Master erred in application of the standard.
CONCLUSION
Non-Liggett Defendants have been found to have committed numerous abuses of privilege and certain violations of Court Orders and the Rules of Court. Non-Liggett Defendants have been afforded notice and innumerable opportunities to be heard. No violations of their due process rights have occurred. The record supports the factual findings of the Special Master. Application of the law of privilege, and the crime-fraud exception were properly applied by the Special Master. The Findings of Fact and Conclusions of Law of the Special Master are adopted and made a part of this Order as clarified herein. Having been carefully considered by this Court, Non-Liggett Defendants' remaining objections are dismissed. The documents designated as falling into categories 1, 3, 4b, and 5 shall be released as herein ordered.
K.J.F.
1. Pursuant to the Order Setting Forth Document Categories for Determination of Privilege Claims, Plaintiffs had the opportunity to designate documents for consideration in Category 1. See Order of May 22, 1997, at paragraph 1 (CLAD # 963). Plaintiffs designed 457 documents, which are identified in Plaintiffs' Memorandum of Law in Opposition to the Non-Liggett Defendants' Claims of Privilege, dated September 29, 1997 (CLAD # 1391-1393), and listed in their Appendix A thereto, which Appendix A is made a part hereof and incorporated herein by reference.
2. Transcript, Trial Volume Number 20, February 16, 1998, pg. 3962, ln.10, to pg. 3964, ln.6.
3. See Exhibit 1 to the Affidavit of Tara D. Sutton dated February 14, 1998 (CLAD # 2262) (list of 458 of Defendants' privilege log entries containing the word "nicotine" or "addiction" or a variant thereof).
4. Order with Respect to Non-Liggett Defendants' Objections to the Special Master's Report Dated September 10, 1997, filed December 16, 1997 (CLAD # 1821) (herein "December 16, 1997, Order").
5. The Bates numbers of the 68 documents are listed in paragraph 4 of the Amended Affidavit of Jeffrey Jones, dated February 16, 1998 (CLAD # 2274).
6. Liggett entered into a Settlement Agreement with the State of Minnesota and agreed to waive its privilege with respect to certain of its documents. Non-Liggett Defendants claimed a joint defense/common interest privilege with respect to these documents. The Special Master's Findings of Fact, Conclusions of Law, and Recommendations dated September 10, 1997 (CLAD # 1321) were adopted and incorporated, with certain clarifications, into this Court's Order with Respect to Non-Liggett Defendants' Objections to the Special Master's Report Dated September 10, 1997, filed December 16, 1997 (CLAD # 1821) (herein "December 16, 1997, Order").
7. State of Minnesota and BCBSM v. Philip Morris Inc., et al., (Minnesota Appellate Court Case Number C5-97-2349) dated January 14, 1998. The Minnesota Supreme Court denied Non-Liggett Defendants' Petition for Review of the Decision of the Court of Appeals.
8. See Order Setting Forth Document Categories for Determination of Privilege Claims, filed May 22, 1997 (CLAD #963).
9. See, e.g., Fourth Order Establishing Procedures for the Review of Documents Subject to Privilege Claims, filed July 22, 1997 (CLAD # 1179); Order Relating to Completion of Verification and Correction of Non-Liggett Documents, filed August 6, 1997 (CLAD # 1230); Order Setting Conference for Discussion of Hearing Procedures on Privileged Non-Liggett Documents, filed August 13, 1997 (CLAD # 1267); Order Directing the Non-Liggett Defendants to File their Privileged Document Numbers by Privilege Classification, filed August 14, 1997 (CLAD #1271); Fifth Order Establishing Procedures for the Review of Documents Subject to Privilege Claims, filed September 12, 1997 (CLAD # 1327); Order of the Special Master in Clarification of Procedural Issues, filed September 24, 1997 (CLAD # 1379); Order re Procedures to be Used at the Hearings Beginning on October 15, 1997 (CLAD # 1489); etc.
10. The Court notes that the Special Master required - and found - sufficient evidence to meet a "preponderance of the evidence" standard, which is a stricter standard than the "prima facie showing" required by the Levin court to invoke the crime-fraud exception.