Monday, 14 May 2012

Day 28 - Do they not like Mondays?

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

Maybe it was Mother's Day.  Maybe it was hay fever. For whatever reason, the trial of the  Montreal class action suits against tobacco companies opened its 8th week on a cranky note.

The day bounced between querulous interventions from certain lawyers ("How are we supposed to keep up with this!  It's just not fair!") and unhelpful responses from a certain witness ("I never read this document before, and as such did not review it in preparation.") With contentious issues on the horizon, the rest of the week may be as fractious.

New exhibits, few answers

Today was the third day that former Imperial Tobacco Limited marketing strategist, Ed Ricard, testified. The term 'former' to describe his relationship with Imperial Tobacco might not be fully descriptive. In his answers, he aligns himself with the interests of a company where he worked for almost 3 decades, and where his father once held the most senior positions. 

Mr. Ricard was given lots of opportunity to provide insight into the way that Imperial Tobacco understood its market, designed its marketing strategies, and viewed its customers, as he was questioned by plaintiff lawyer, Philippe Trudel, on marketing documents that spanned more than 20 years. In the absence of much explanation from Mr. Ricard, the new exhibits were left to speak for themselves.

Exhibit 304. This 1978 research project on 16 and 17 year old high school students in four Quebec cities is titled Etude d'exploration qualitative du Marché des jeunes fumeurs quebecois. It is another in the CRY series (CRY6).  It sought to learn more about young people's first smoking experiences (When? Why? How? With whom? Under what influence?), their attitudes and awareness of health issues and their views on various tobacco ad campaigns.

Exhibit 306:  (CRY10) This 1982 study bills itself as part of a "larger effort to better know and understand the market for young smokers."  (Title: Les jeunes face a la cigarette: Exploration qualitative de leurs comportemetns et de leurs attititudes). Participants were 16 to 24 years of age, and included smokers and former smokers.

Exhibit 309. (CRY27-C) This extract from the 1987 Youth Target  provides tables to the custom questions Imperial Tobacco commissioned. Young persons' smoking behaviour, demographics, psycho-graphics, attitudes towards smoking and interests were plotted against one another to give a profile of which sponsored events appealed most to those most likely to smoke.

Exhibit 311. This financial update shows that after the federal government reduced taxes in 1994, Imperial Tobacco's profits increased by 30%.  Increased smoking rates were credited with some of the additional millions.
Project Crawford & Fresh Lights
Exhibit 314.  A 16 page handwritten note from 1983, this one exchanged among people working to find a way to solve "what we have defined as 'side effects' to cigarette smoking." The ITL team is sharing a Eureka! moment as they look at a rosy road ahead through the "key-hole" of lights:
Our marketing opportunity is to advance along the time line of the long run evolution of plain end to filter to king to light and lighter. 

Exhibit 315.  Today, Ed Ricard gave reluctant answers to questions about his views regarding low tar cigarettes being safer. In this memo he wrote in 1989 on very low-tar cigarettes, however, he eloquently discussed how these products had allowed smokers concerned about health risks or under social pressures to continue to smoke. (When asked today what he meant when he called smokers dissonant, he coined a new meaning to a term more usually used to describe someone who smokes but is unhappy about it. Today he said that a "dissonant smoker" is someone who does not have a firm  brand preference.

Exhibit 318.  In 1995, Project Renaissance was designed to find out more about consumer preferences for reduced risk products. It was seen as a follow on to Project Viking and also was linked to Project Day.  This exhibit suggests there was also a Project Month!

Arguments, arguments, arguments!

Last Friday many trooped across the street to the hearing at the Court of Appeal on a request to review Justice Riordan's May 2nd ruling. The court made no decision, and the plaintiffs continue to be able to enter  exhibits on the trial record without having to restore to life the dead authors or recipients in order for the documents to be authenticated.

Other documents continue to be the subject of differing views on admissbility. Today, brief discussions were held on three concerns held by the tobacco companies on certain documents - parliamentary privilege, solicitor client privilege and confidentiality.

A secret discussion about secrets?

Time has been set aside this Thursday afternoon for a discussion about Imperial Tobacco's request for 12 documents to be sealed. (Deborah Glendinning rescinded last week's request for confidentiality for documents that are on the public record as a result of the Tobacco Act trial. Everyone kept a poker face.)

Justice Riordan has clearly been preparing to rule on the issue of confidentiality. He reported that some of his weekend had been spent reviewing a Supreme Court of Canada ruling on the tension between commercial confidentiality and public interest (the case involved the Sierra Club, the federal government and Atomic Energy of Canada Ltd.).

Justice Riordan hinted there was a solution he would like to be considered, i.e. the development of document summaries which protected confidential information while allowing the 'essential part' to be made public. Any hopes he might have had that such an approach might free him from having to write another judgement during the scheduled break in hearings next week (let alone free the Court of Appeal from the seemingly inevitable appeal of his judgements) would have been dashed by André Lespérance's response.

Mr. Lespérance explained that one of the documents in question involves survey data Imperial Tobacco collected over decades, and has about 30,000 pages and that it is not only the size that makes this document hard to summarize in such a way.  "The CMA market research is difficult and will need to be argued on the principle," he said. "What interests us is quitting and starters -- we will be arguing that it is not confidential information under the meaning of the Sierra Club decision."

Justice Riordan asked whether Imperial Tobacco would be wanting their motion to seal documents to be heard in camera, and was told that such a request is forthcoming.  "If the content comes out in discussion, then the whole issue is moot," explained Deborah Glendinning. Who knows? Maybe the discussion about whether to have an secret in camera session to discuss secret confidential documents will also be held in behind closed doors....

Parliamentary Privilege

Another issue that has not been resolved is whether or not the trial will receive as evidence records of parliamentary discussions, including the testimony given by Jean-Louis Mercier to the Commons legislative committee.  Today, Philippe Trudel tried to introduce a document the Canadian Advertisers Association had provided to parliament, but after objections held it back until the issue is resolved. No date has yet been set to discuss this aspect. (Parliamentary records were introduced as evidence in the constitutional challenge to the Tobacco Products Control Act).

Solicitor Client Privilege 

The tobacco companies have hired historian David Flaherty as an expert witness, but when he appears tomorrow afternoon it will be as a fact witness for the plaintiffs.

Today, it was let drop that the topic of questioning will be the mysterious "Four Season Project" about which the plaintiffs lawyers have asked each witness (none have yet admitted any familiarity). It appears from documents on the Legacy web-site that in 1988, David Flaherty was engaged to measure and document awareness of health issues related to smoking, as part of a Canadian industry-wide effort that was called the Four Season Project. In 1989, David Flaherty was again hired to use such information to help fight Canada's first ever (but ultimately  unsuccessful) lawsuit against tobacco companies.

Deborah Glendinning gave notice that she thinks that solicitor-client privilege should apply to these documents. (You might have thought that privilege was waived once the release of multiple copies was negotiated in out-of-court settlements, but there you go.)

Line up for the rest of the week is as follows:  Tomorrow morning is Ed Ricard's last appearance this week, although he is expected to be called back later. Tomorrow afternoon, David Flaherty will appear.  Wednesday, a librarian from Imperial Tobacco, Carol Bizzarro, will appear. On Thursday afternoon, arguments on the issue of confidentiality will be heard, and on Thursday morning the filmed deposition of BAT lawyer John Meltzer may be aired.

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.