Thursday, 5 April 2012

Day 12 - A Fork in the Road on Evidence

With the no witnesses scheduled to testify, the judge and lawyers traded in their usual court attire - tabs and robes - for more workaday business attire for day twelve of the trial. But the seemingly more informal atmosphere belied the important evidentiary issue being debated on the day. The decison on the motion debated today will mark a fork in the road that, depending on which route in chosen, will take this trial on one of two different routes.

At issue is how (and whether) internal tobacco company defendants' documents will be admitted into evidence in the trial. Essentially, there is a longer road with a lot of potholes in it, and a shorter, smoother, well-paved road.

The tobacco companies want the court to take the long road with the all potholes. They want the general rule to be that every document entered into evidence requires a witness with personal knowledge of it to testify. There could be exceptions to this general rule, but each exception would have to be fought over one-by-one as the trial goes along.

The defendants admitted during arguments today that, if both the author and recipient of a letter or memo are deceased, or otherwise unavailable, their preferred approach might well prevent documents from coming into evidence at all. These documents would be lost in the potholes. Some would make it to the end of the bumpy road into evidence, but certainly as few as possible if the defendants have their druthers.

The defendants even want to extend this rule to public statements and media articles. If no one connected a public statement or media article is available to testify about it, the defendants argue that these documents, too, should have to be considered one-by-one as exceptions. (There are at least eleven thousand newspaper articles in the pre-trial discovery records that could have to be subjected to this process, one at a time.)

First to address the judge on the day was plaintiff lawyer Philippe Trudel.

“I recognize you, you're always sitting in the corner,” Justice Riordan remarked as Mr Trudel passed him a spiral-bound book of authorities.

Now at the centre of the room, Mr Trudel spoke for about an hour making the case for the short well-paved road.

His argument, which he supplemented with references to case law, centred on the several principles of Quebec law:

1) Section 403 of Quebec's Code of Civil Procedure sets out an administrative process for parties are required to "admit the genuineness or correctness of an exhibit". The article goes to says that "[t]he unjustified refusal to admit the genuineness or correctness of an exhibit may result in a condemnation to the costs resulting therefrom."

2) Section 2811 of the Civil Code of Quebec permits "[p]roof of a fact" to be made "by a writing, by testimony, by presumption, by admission or by the production of material things". (emphasis added) Put another way, written evidence is one of the five recognized ways to prove a fact.

It is important to note here that the plaintiffs were explicit that they were not suggesting that documents should be admitted for the proof of their contents just through documents. Proving that what a document says is true would still require the testimony of witnesses. The documents the plaintiffs are looking to get into evidence in the more expedited way are those that they just want to establish that the defendants simply had in their files (or, in the case of media interviews, simply that the statements made in them were actually made).

3) Section 54.1 the Code of Civil Procedure gives the court broad powers to remedy abuse of process, including "use of procedure that is excessive or unreasonable or causes prejudice to another person, or in an attempt to defeat the ends of justice".

The main tobacco industry counterargument, advanced in different words and with different case law by all three defendants, rests on article 2870 of of the Civil Code of Quebec, which says:

A statement made by a person who does not appear as a witness, concerning facts to which he could legally testify, is admissible as testimony on application and after notice is given to the adverse party, provided the court authorizes it.

The court shall, however, ascertain that it is impossible for the declarant to appear as a witness, or that it is unreasonable to require him to do so, and that the reliability of the statement is sufficiently guaranteed by the circumstances in which it is made.

The reliability of documents drawn up in the ordinary course of business of an enterprise, of documents entered in a register kept as required by law and of spontaneous and contemporaneous statements concerning the occurrence of facts is, in particular, presumed to be sufficiently guaranteed.

The defendants argue that this takes precedence over the sections relied on by the plaintiffs. How to square these seemingly contradictory provisions - an expeditious one and one that puts a heavy burden on the party introducing the evidence to prove that using a witness is impossible before resorting to documents - is what the legal arguments, based on decades of precedents in the Quebec court system, come down to.

The lawyers basically agreed that sometimes the expedited process advanced by the plaintiffs applies and sometimes the process advanced by the defendants applies. The difference arises over which process applies to what the plaintiffs are trying to do with the tobacco companies' documents. The plaintiffs say that the short well-paved road they propose is all that is necessary because all they are trying to prove is that the defendants had the documents or that statements made in the media interviews were made, not that the content of the documents or statements was necessarily true.

To give a hypothetical example: if one of the defendants had a study in its files saying that smoking caused a particular disease, then that would be relevant to the plaintiffs' case if the defendant never told anyone about it. But the plaintiff would still have to prove, on top of the fact that the defendant had the study, that the study was actually correct - that smoking actually does cause the particular disease. And the plaintiffs might still have the burden to show that the study in the defendant's file was not flawed in some way that justified the defendant not telling anyone about it. They will likely need to prove these things through expert witnesses. But the plaintiffs would also need to prove to the court that the defendant had the study in the first place to link the defendant to any wrongdoing.

If the defendants can knock this link out of the chain by preventing the court from finding out that they hand the study, by preventing it from coming in to evidence, then it helps them avoid liability.

Mr Trudel used the word "audacious" to describe the defendants' position that documents produced by their defendants from their files should have to be proven one-by-one through witnesses just to establish that they had them in their files, when the defendants themselves produced them from their files during pre-trial discovery.
He went on to note that, even if they did have to be considered under the exception procedure one-by-one, one of the first exceptions you learn about in law school is the exception for documents produced by a party that undermine the party's own case (these are called hearsay exceptions in common law legal systems).

The real objective of the defendants' postion, according to Mr Trudel, is to throw roadblocks in front of the plaintiffs. If proven, this is where the allegation that the defendants are abusing the process would come in.

For their part, the defendants emphasized that the process involving witnesses that they prefer protects them from possible misleading evidence. Simon Potter for Rothmans, Benson and Hedges Inc. suggested that a document that might look the company's intent might only be a philosophical discussion, but the court would not have a way to know that without a witness to speak to it.

All three defendants made statements to the effect that the ability to challenge the documents is fundamental to the adversarial trial system. To this, the plaintiffs retorted that the defendants were conflating admitting the documents for the fact that they exist with admitting them for the truth of their contents.

Justice Riordan will rule on the plaintiffs' motion at some future time.