Monday, 18 June 2012

Day 44 - Blame the Dead Guy

The final week of the trial before a two month summer pause began with the introduction of new witness Lyndon Barnes, former external counsel to Imperial Tobacco. Plaintiff lawyer Gordon Kugler's introductory questions established that Mr Barnes joined Ontario-based Osler, Hoskin & Harcourt (Oslers) as an articling student, straight out of law school, in 1971. He was hired as an associate lawyer in 1973 and became a partner in the firm in 1977, where he remains to this day.

Now 64 years old, Mr Barnes' thin build, neatly trimmed grey hair and prominent dark-rimmed glasses give him a striking resemblance to the lawyer in The Simpsons.

Unlike the Simpsons character he physically resembles, who speaks in a high, nasally, pretentious-sounding voice, Mr Barnes delivered most of his testimony in low measured tones (sometimes so low that he had to be asked to speak up or move closer to his microphone.) The only exceptions were the two times his testimony drew incredulous responses from Mr Kugler. Then Mr Barnes' voice would rise to a rare high note and his tone of voice would become clipped and terse, as though he were shocked and mortally offended that Mr Kugler did not seem to believe what he was saying (more on this further below).

Mr Barnes testified that he has been a litigation lawyer since joining Oslers in 1973, and started representing Imperial Tobacco, as well as its former parent company Imasco, sometime in the mid-1980s. He was co-counsel for Imperial, with Montreal-based Simon Potter, on the tobacco industry's successful constitutional challenge to the Tobacco Products Control Act in the early 1990s.

Later, he represented Imperial Tobacco on product liability cases in Ontario, including the Caputo class action, and against the Ragoonanan Estate and the McIntyre Estate. His Oslers colleague Deborah Glendinning, who is Imperial's lead counsel in the current Quebec class actions, is listed as also having represented Imperial in both the Caputo and Ragoonanan matters, and this is not the full extent of Mr Barnes' and Ms Glendinning's prior collaboration. Mr Barnes mentioned in his testimony that he worked for Imperial Tobacco on the Spasic Estate case as well. Only Ms Glendinning is listed as the Imperial's counsel in the reported judgment on that case, suggesting that their behind-the-scenes collaboration is more extensive than what is apparent from whose name appears in the reported judgments.

Mr Barnes also represented Imperial Tobacco at an early stage of the Government of British Columbia's ongoing health care cost-recovery lawsuit against the tobacco industry.

In addition to his extensive litigation work, Mr Barnes' testimony made it clear that his work for Imperial Tobacco involved attending many many meetings about litigation. Beginning in 1986, he testified that he took part in meetings of the Four Seasons Project, which he described as a "forward planning" project for the tobacco industry to prepare for anticipated product liability litigation in Canada. (See Cynthia Callard's blog entry on Day 29 for an account of David Flaherty's testimony on the Four Seasons Project).

Mr Barnes also testified that he participated in numerous meetings with the Canadian Tobacco Manufacturers' Council between 1986 and 2000. He said that they met to discuss defences to litigation, some of which were common to all the defendants and some of which were not, and that prior to 1995 they also discussed the constitutional challenge to the Tobacco Products Control Act.

Furthermore, Mr Barnes testified that he attended numerous meetings in the United States with lawyers for British American Tobacco (BAT) and Brown and Williamson (the US-based member of the BAT Group). These meetings took place in Louisville (headquarters of Brown and Williamson), Kansas City (in the boardroom of Shook, Hardy & Bacon, the firm that represented Brown and Williamson in American product liability litigation), New York and possibly Chicago (he wasn't 100% sure about Chicago). He testified that he attended these meetings with Simon Potter and Roger Ackman and that they discussed available defences to product liability litigation, expert witnesses and anything else that would be relevant to litigation. At one point, he testified, they conducted a mock jury selection exercise.

Although all the other meetings Mr Barnes talked about concerned litigation, whenever the discussion turned to the series of meetings about Imperial Tobacco's document retention/destruction policy in 1989-90, Mr Barnes insisted that litigation in Canada was not a concern at all for himself or his client with respect to these meetings.

In late 1989, BAT Chairman Sir Patrick Sheehy, BAT in house lawyers Stuart Chalfen and Nick Cannar, and Brown and Williamson lawyers David Schechter and Kendrick Wells converged on Imperial Tobacco's boardroom in Montreal to discuss changing Imperial's document retention/destruction policy with Mr Barnes and senior Imperial Tobacco and Imasco management. Mr Barnes said that BAT wanted Imperial to change its policy so that sensitive scientific studies done by BAT on tobacco and health, studies Imperial Tobacco had contributed to financially and had in its possession, from being discovered through Canadian litigation. However, he insisted that neither he nor Imperial Tobacco were concerned at all that the studies would be detrimental to Imperial Tobacco if they were discovered in this litigation. He said he did not know why the lawyers for Brown and Williamson were present, and that they were invited by BAT.

According to Mr Barnes, Imperial's Vice President for Research and Development, Dr Patrick Dunn, had three main concerns about BAT's request that Imperial destroy the scientific studies in its possession that had emanated from BAT: first, Imperial had contributed financially to the studies so he questioned why Imperial could not have copies; second, Imperial's research and development scientists needed the studies for their ongoing work; and third, he did not believe their contents would be detrimental to Imperial Tobacco in the event of product liability litigation. (The studies, which Imperial ultimately did destroy, were recovered from Brown and Williamson and BAT and have been entered as Exhibits 58-1 to 58-60 and 59-1 to 59-41.)

Mr Barnes went on to explain in detail how, just after the New Year in 1990, BAT external lawyer John Meltzer came to Montreal to review the BAT documents in Imperial's possession. Mr Meltzer brought with him a list what Mr Barnes called "sensitive" scientific studies on smoking and health that BAT did not want discovered. Mr Barnes testified that Mr Meltzer's list of was subdivided into three groups: the studies with sensitive information about tobacco and health, other studies that upon reasonable inquiry would lead someone to one of the studies in the first group, and a third group that Mr Barnes could not remember. Mr Barnes testified that, in addition to Mr Meltzer, a paralegal from his firm and one from Mr Potter's firm, Ogilvy Renault, worked on selecting the documents in Imperial's library.

Asked why two paralegals were sent to review scientific documents, Mr Barnes testified that Dr Dunn had indicated that the scientists in his department were too busy to assist.

Although Mr Barnes testified that he was the lawyer "most closely involved" in the review of the documents by the paralegals, he testified that he did not personally review the documents identified by the paralegals. (The ethical rules that apply to work conducted by non-lawyers under the supervision of lawyers generally require lawyers to frequently review the non-lawyers' work to ensure that it is performed competently.)

Mr Barnes further testified that he did not know that the documents being identified by the paralegals were going to be destroyed, only that he knew Imperial's document retention policy permitted their destruction. He said he did not become aware that Imperial had actually destroyed any documents until 1995, when he was preparing for discovery in the Spasic case. When asked by Mr Kugler if he produced the documents in that case, Mr Barnes replied:

"It would have been hard to produce documents that were destroyed."

Mr Kugler then asked if Mr Barnes produced the originals that were in BAT's possession in that case.

"No, they were not in our control or possession," Mr Barnes replied matter-of-factly.

Blaming the Dead Guy

The two times Mr Barnes got upset and raised his voice to a high note occured after he testified that Dr Dunn, who is now deceased, was actually the person who selected the documents for destruction and Mr Kugler reacted incredulously.

The first time came late in the day, after Mr Barnes had already given his detailed explanation of how Mr Meltzer, BAT's outside counsel, had come to Montreal with a list of sensitive scientific studies that BAT wanted to make undiscoverable in Canadian litigation; that the list had been divided into three groups, two of which were sensitive studies about tobacco and health and other studies that would lead to the sensisitve studies; that Dr Dunn had opposed destroying the studies because the scientists in his department needed them; and that paralegals had selected the studies from the Imperial  Tobacco library because Mr Dunn had said the scientists in his department were too busy to do it.

Mr Kugler showed Mr Barnes Exhibit 229E, a transcript of a 1998 media story in which Imperial spokesman Michel Descoteaux said "The only reason we destroyed them is because we didn't need them anymore".

Mr Kugler asked Mr Barnes is this statement was true.

"I have no reason to doubt it," Mr Barnes replied.

Mr Barnes went on to say that, since Mr Dunn had been responsible for administering the document retention policy, they would only have been destroyed if Mr Dunn no longer needed them.

"Are you telling the court that the only reason these documents were destroyed is because the Vice President of R&D at Imperial Tobacco felt he no longer needed them?", Mr Kugler asked incredulously.

"That's right," Mr Barnes replied his tone of voice now rising.

After a short pause, Mr Kugler again asked Mr Barnes who divided the destroyed documents into lists.

"Mr Meltzer provided the list," Mr Barnes reiterated.

"And Pat Dunn was provided with this list?"

"Yes he was."

Later in the afternoon, Mr Kugler asked Mr Barnes "Whose idea was it to do a new document retension slash destruction policy?"

Mr Barnes calmly replied that the impetus came from BAT.

"So Imperial had the right to go through with it or not go through with it?"


Mr Kugler then asked Mr Barnes to read paragraphs 3967 and 3968 of Madam Justice Kessler's judgment in an American action against the tobacco industry under the US Racketeer Influenced and Corrupt Organizations Act, which says:

[3967] When asked to describe the Document Retention Policy, Gulson answered:

It was the official title for what was more commonly known as the “Document Destruction Policy.” The Policy was a program to ensure that all sensitive documents, all documents that if made public or discovered in litigation could potentially damage Wills, or Wills’ affiliate companies in the BAT group, were sanitized.

To “sanitize” Wills’s documents meant to “destroy them or otherwise make them undiscoverable.

[3968] When asked about the purpose of the Document Retention Policy, Gulson responded that the Legal Department has responsibility for implementing it, and that

[t]he purpose of the Document Retention Policy was twofold, to protect the litigation position of Wills, and to protect the litigation positions of other BAT Group companies, especially our US affiliate Brown and Williamson, by ensuring that potentially damaging documents would not be discovered from Australia.

(Gulson was a lawyer for the BAT Group company in Australia.)

Mr Kugler asked Mr Barnes if he agreed that Gulson's description of the Australian document retention policy applied equally to Imperial Tobacco in Canada.

"Absolutely not," Mr Barnes said, "it was administered exclusively by the Vice President of Research." (the late Dr Dunn)

"There was no legal involvement at all, other than assisting in the drafting of the policy," Mr Barnes continue.

Mr Kugler rhymed off the names of Mr Meltzer and many of the other the lawyers whose names had previously come up in Mr Barnes' testimony about the development policy. "Didn't they all play a role in the destruction of documents?"

"No they did not," Mr Barnes said, still calm.

"They didn't?" Mr Kugler asked again, his tone of voice once again suggesting incredulity.

"No!", Mr Barnes insisted, his voice again rising defensively.

Mr Kugler elected to end his questioning of Mr Barnes with the above exchange. On Day 45, Bruce Johnston will continue Mr Barnes' questioning on behalf of the plaintiffs.

By Michael DeRosenroll for Cynthia Callard

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.