Wednesday, 4 April 2012

Day 11 - Ackman not aware of rule against lawyers suppressing evidence

For information on accessing documents, see note at the end of this post.

Much of the first two days of questioning of Roger Ackman, Imperial Tobacco's top in-house lawyer from 1972 to 1999, has focused on the issue of document destruction. On day three of his testimony, Mr Ackman told the court he was not, in fact, aware of an ethical rule prohibiting lawyers from helping to suppress evidence.

At issue was a presentation Mr Ackman gave to a conference on in-house corporate counsel in Toronto in 1985 entitled "Corporate Counsel - A Captive Advisor?" (exhibit 103). The presentation covered the duties and obligations of in-house corporate lawyers. It expounded at length on the challenges of providing objective legal advice on corporate decisions when, often, the in-house lawyer is involved in making the decisions.

Plaintiff lawyer Bruce Johnston asked Mr Ackman to read the following passage from his presentation:

[I]t is my view that if the various professional codes of conduct are carefully read, they will provide most of the answers that corporate counsel is looking for in charting an ethical course of behaviour.

Mr Johnston then asked Mr Ackman if he had been aware of a prohibition on counsel against aiding in the suppression of evidence.

"No sir," answered Mr Ackman.

This was one of the few illuminating moments of Mr Ackman's third and final day of examination by the plaintiffs. Mr Ackman was more combative today than on the first two days, interrupting questions and refusing to answer questions even more frequently than during his first two days.

A typical exchange came when Mr Johnston was questioning Mr Ackman about Imperial's claim that it does not encourage people to smoke. Mr Johnston asked Mr Ackman, as a member of Imperial's management committee, why the company had this policy. Mr Ackman said he did not know.

"You don't know why?", Mr Johnston asked.

"It was a legal product," Mr Ackman replied.

"ITL was in business to make money?," Mr Johnston asked.

"As is the government," Mr Ackman said.

This answer brought a chorus of laughter from the tobacco industry observers in the public gallery.

Mr Johnston pressed on through the tobacco industry laughter: "If it's a legal product and you want to sell as many as possible, why wouldn't you encourage people to smoke?"

"I don't know", Mr Ackman replied.

"Is it because people died from using it?", Mr Johnston asked.

"I won't answer that", Mr Ackman said.

Later, Mr Johnston introduced into the evidence a memo (exhibit 107) sent to Mr Ackman in 1992 by British American Tobacco (BAT), Imperial's UK-based parent company, regarding an article that had recently been published The Lancet medical journal. The article estimated that almost 20% of deaths in the developed world were caused by smoking and that smoking would kill 21 million people in the developed world in the decade of the 1990s.

Under the heading "POINTS THAT CAN BE MADE IN ANY MEDIA RESPONSE", the memo said:

The premise of the paper is that smoking has been proven to cause diseases such as lung cancer. This, however, is still a matter of scientific controversy.

Mr Johnston asked Mr Ackman if the company's position that smoking had not been proven to cause lung cancer was important for litigation purposes.

"It's a much debated topic," Mr Ackman replied.

Mr Johnston tried again: "My question to you is, as a lawyer, was the issue of admitting or not admitting smoking caused lung cancer an important issue?"

Mr Ackman would not answer directly: "We produced a legitimate product, authorized by the government, for the government's purposes and our purposes."

Mr Johnston later came back to the document destruction issue. He pointed out that, when the issue became public in 1998, Imperial spokesman Michel Descôteaux said in a media interview: (exhibit 35)

[W]e didn't destroy the originals, the originals were not ours, we didn't have them in our files anyway. So all we did was get rid of useless paper clogging up our files.

However, a memo written by Mr Ackman in July 1992 indicated that the reports under consideration for destruction had been divided into three lists before being sent off to lawyer Simon Potter (exhibit 76).

Mr Johnston asked Mr Ackman why the documents were divided into three lists if the purpose of sending them off to outside counsel was just to clear out space in filing cabinets.

"I don't know what that means," Mr Ackman replied.

"Why were the documents sent to outside counsel divided into three lists?", Mr Johnston asked again.

"I have no recollection," Mr Ackman said.

"Did it have anything to do with how compromising they were?"

"I don't think I ever saw the documents, so I don't know."

Mr Johnston next asked if Mr Ackman agreed with him that Imperial had an obligation to know its product, and that a lawyer must not suppress evidence.

"As far as I know, the records exist," Mr Ackman retorted.

"Is it your testimony that those documents would be discoverable?" Mr Johnston asked.

"We had access to them," Mr Ackman replied.

Mr Johnston pressed the point that documents destroyed or sent away would not be discovered in litigation. They would not be in Imperial Tobacco's possession.

"We had access at all times," Mr Ackman insisted. "If Imperial asked for them, they would be returned."

"And if plaintiffs asked for them?", Mr Johnston asked.

"I have no answer for that", Mr Ackman replied.

It's Their Problem

Mr Ackman was more forthcoming on his view of who is responsible for children smoking. Mr Johnston asked him if he was aware that most people who smoke start smoking before age 18.

"I don't know that," Mr Ackman replied.

Mr Johnston asked if knowing this would have changed his earlier answers.

"People make choices. It's a legitimate product. I don't make their choices for them," Mr Ackman replied.

"So it's their problem?", Mr Johnston asked.

"It's their problem," Mr Ackman said.

Imperial Complains

In the afternoon, Imperial lawyer Deborah Glendinning asked Justice Riordan to force Mr Johnston to retract comments he made in a Radio-Canada interview, broadcast that morning, to the effect that the plaintiffs only found the destroyed documents because Imperial destroyed them imperfectly. She pointed out that, although Imperial did not provide the documents to the plaintiffs, they told the plaintiffs how to find them elsewhere during the pre-trial discovery process.

Mr Johnston retorted that his media comment was fair, based on the evidence, because they only found out about the destroyed documents as a result of letters referring to their destruction becoming public through American litigation.

Justice Riordan swiftly dismissed the request. "I cannot and will not issue an injunction," he said. He added that he would not tell experienced lawyers how to conduct themselves outside the courtroom, but noted that he learned the hard way as a young lawyer that it is not preferable to try a case in the media.

Documents Become Public

Also in the afternoon, Imperial Tobacco gave consent for seven documents containing their corporate organization charts, to be entered as exhibits 112A, 112C, 112D, 112E, 112F, 112G and 112H. Exhibit 112B was reserved, but may be admitted to the record later. The charts span from 1976 to 1997.

The lawyers also resolved the issue of assigning exhibit numbers to the destroyed (and now recovered) documents. Since lawyer Simon Potter's letters referring to their destruction are already in evidence as exhibits 58 and 59, each of the destroyed documents will be given exhibit number of 58-1, 58-2 and so on, or 59-1, 59-2 and so on, depending on which of Mr Potter's letters referred to its destruction.

At the time of publication of this blog, the destroyed studies are not yet publicly available on the plaintiffs' online document database, but they should be posted soon. The simplest way to find them when they are posted would be to click on the "search" option at the top of the main page, then search for either "58" or "59" in the "exhibit number" field. This should produce Mr Potter's letter and the studies whose destruction are referred to in the letter because they will all contain the number 58 or 59 in their exhibit number.

No witnesses are scheduled for Day 12 of the trial (tomorrow), which has instead been set aside for legal arguments on two motions: 1) the plaintiffs' motion alleging abuse of process by the defendants, and 2)Imperial Tobacco's motion to quash the plaintiffs' subpoena of one of Imperial's Toronto-based lawyers.

To access trial documents linked to this site:

The documents are on the web-site maintained by the Plaintiff's lawyers.  To access them, it is necessary to gain entry to the web-site.  Fortunately, this is easy to do.

Step 1:  Click on:

Step 2:  Click on the blue bar on the splash-page "Acces direct a l'information/direct access to information" You will then be taken to the document data base. 

Step 3:  Return to this blog - and click on any links.

By Michael DeRosenroll for Cynthia Callard