Thursday, 10 May 2012

Day 27 - Imperial Tobacco tries to stem the flood of documents

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

The class action suits against tobacco companies that are now being heard in Montreal were launched more than 13 years ago. Although the process works at such a glacial pace, it turns out it can also turn on a dime. As the hearing rolled towards the weekend, new play-books were pulled out.

Opening the door

Last week, you may recall, Justice Riordan ruled that the refusal of Imperial Tobacco to acknowledge the genuineness of some of its documents was improper.  One of the fall-outs of that decision is that particular documents that Imperial Tobacco was trying to protect were made public. (See the post from this Monday for some particularly HOT documents!)

Another consequence is that it became generally easier for the plaintiffs to introduce documents, and to make them part of the court record (and available to onlookers like you and I) even though the value of these documents as "proof" was not yet established.

Trying to close the door

Yesterday (Wednesday), word was received that Imperial Tobacco had scheduled a hearing for tomorrow (Friday) at the Court of Appeal, with another attempt to get an interlocutory decision of Justice Riordan struck down. (This will be the third airing in three weeks of a request to appeal his mid-trial decisions.)

Perhaps to guard against an unfavourable decision tomorrow, the plaintiffs used some court time today to put on the trial record a number of HOT documents. (Some are mentioned at the bottom of this post).

Drawing the blinds

Imperial Tobacco is using another method to protect itself from document disclosure. They have claimed confidentiality over a number of marketing documents - including some that are 30 years old (Sorry I can't give you too much more information about these documents. I can't see them - they're under seal!).

The current witness, Mr. Ed Ricard, was until recently in charge of strategy planning and insights for Imperial Tobacco. If the company succeeds in putting his department's work under a confidentiality seal, his contribution to the "facts" the plaintiffs are trying to establish will be severely limited.

To point out the insincerity of the claim of confidentiality, plaintiff lawyer Philippe Trudel showed Mr. Ricard a number of marketing strategies from other years, and asked him whether they too should be considered "confidential."  His answer, unwaveringly, was yes.  So these documents were also entered under a confidentiality seal.

These documents I can tell you more about. They have been around for a decade, having became public as a result of the constitutional challenge to the federal Tobacco Act.  During that trial, they were labelled exhibit P-50, AG-51, and AG-52 and are now available on the Legacy site).

The imbalance of institutional memory in the justice system became apparent at this point. Justice Riordan seemed unfamiliar with Justice Denis' decision on the Tobacco Act, and uniformed of developments in that trial. So the irony of his dutifully placing under seal documents that are now freely available was lost on him. By contrast, the majority of lawyers for the industry and government have already engaged in major court battles over these documents, and may well be able to recite them by heart.

The motion on confidentiality will be discussed next Thursday afternoon (May 17th). The expectation is that Justice Riordan will rule on it on May 21st, when the hearings on this trial resume after a 10 day break.

The un-curious mind of Mr. Ricard

Mr. Ricard is truly un-curious man.  Yesterday, he was questioned on the undertakings that had been made under his name when he was the designated witness during the discovery period. (The undertakings were introduced today as Exhibit 297 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 13A and 13B). The court was told that he had not read the information that was provided on his behalf -- even when it involved a question regarding his own personal recollections. He was not curious enough to follow up on any of the questions put to him.

Nor was he curious enough to read the documents that had been provided to him by the plaintiffs to aid him in preparing for his testimony as a fact witness at this trial.  He told the court that he had looked at the documents to see which ones he had seen before, but did not read any he was not familiar with.  (It was almost as though he expected that Justice Riordan would have agreed with Imperial Tobacco's lawyers that these documents would not be admissible and therefore he did not have to understand them).

But mostly he seemed stunningly un-curious about what happened in the marketing department at Imperial Tobacco for the 28 years he worked there. While he admitted to knowing the names of his colleagues, he was rarely able to provide any details on any of them, and had little recollection of any of the work done over the period. Other than being able to recognize information as proprietary and confidential, remembering that there was an agreement with Health Canada to not communicate with smokers about the dangers of cigarettes, and to know that Imperial Tobacco adhered to the voluntary code at all times, he had very little recall of the media strategies, media buys, or market analysis done around him.

Perhaps he played a lot of golf.

The curious story between Dr. Dunn and Mr. Ackman 

The story of the squabble between Imperial Tobacco's lawyers and Imperial Tobacco's scientists has been told in pointillistic form, as documents have appeared over the course of the past dozen years. Two additional documents were made public today that tell a very human - even moving - story of the struggle felt by Dr. Patrick Dunn.

Mr. Mercier testified earlier in the trial that Patrick Dunn was given the authority to decide which documents would be kept, and which destroyed.  What he didn't say was that Dr. Dunn was told to make that decision align with the lawyer's wishes - nor did he say how much it grieved Dr. Dunn to do so.

The disagreement between Roger Ackman and Patrick Dunn was at such an impasse that it appears that Roger Martin was called to mediate between them.  Like a couple in marriage counselling, the two men were told to make a record of their inner thoughts during their discussion. Reading this "he said/he said" story is a reminder of the limited power of middle managers in large organizations.

Patrick Dunn pours out his feelings on paper: (Exhibit 102)

These lawyers are all over place. They do not want to even understand the problem they are  causing me. They think that I am just trying to be awkward.

The lawyers do not want to make the decision as originally agreed they want to make me give them the decision they want.

He understands that what he is being asked to do has legal ramifications

He thinks that lawyers have a monopoly on professional standards and they are the law itself. The punch line to all this bullshit is that I am the one on the stand in court, not the lawyers.

Dr. Dunn was right to foresee a day when this would all be aired in court. Ironically, however, he died before he was asked to testify -- and it is now Roger Ackman who gets to present.  Mr. Ackman's mirror account is available as Exhibit 102-B

Did I mention HOT documents?  The Dunn/Ackman exchange is enough for today. Over the weekend, some highlights from exhibits this week.  I promise.

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.