Tuesday, 19 June 2012

Day 45: What is a threat?

The Montreal courthouse was alive with television crews and extra security for the arraignment of a notorious accused murderer just extradited back from Germany, but it was business-as-usual in courtroom 1709 as former Imperial Tobacco external counsel Lyndon Barnes took the witness stand for a second day.

Barnes sticks to his guns, maintains the late Dr Dunn destroyed the documents

Plaintiff lawyer Bruce Johnston began by asking Mr Barnes to clarify some of his head-scratching claims from his first day of testimony. Asked if he stood by his claim that there was "no legal involvement at all" in Imperial Tobacco's document retention/destruction policy, "other than assisting in drafting the policy", Mr Barnes conceded that paralegals from his firm (Osler, Hoskin & Harcout) and Simon Potter's firm (Ogilvy Renault) were involved in identifying documents in Imperial's possession that originated from British American Tobacco (BAT). He maintained, however, that the late Pat Dunn, then Vice President of Research and Development, was solely responsible for selecting the BAT documents to be destroyed.

Mr Barnes also maintained his denial that the objective of the policy, at least for his client, was to render the documents undiscoverable in Canadian tobacco litigation (he testified yesterday that he did not disclose the sensitive scientific studies about tobacco and health to plaintiffs in at least one Ontario product liability lawsuit as a result of them having been destroyed, since he was not required to disclose them once the only copies Imperial had access to were in the possession and control of BAT).

He reiterated again that rendering the document undiscoverable in Canadian litigation was British American Tobacco's objective when it asked Imperial to adopt the policy, just not Imperial's objective. Asked what purpose the policy served for his client, he said "it raised the whole spectre of whether there should be a document retention policy". He added that Imperial's in-house counsel, Roger Ackman, was under a lot of pressure from BAT over the issue, and that Imperial realized following BAT's request that it had acquired many documents over the years that it didn't need.

Based on Mr Barnes' testimony and his colleague Deborah Glendinning's questions on cross-examination, the key point in Imperial's defence on this issue is to emphasize that putting these sensitive scientific studies out of the reach of discovery in Canadian litigation was not their objective, even though it might have been the result of their actions. Neither Mr Barnes nor other Imperial representatives seem the least bit embarrassed that, even if you believe Imperial's theory of the case, they admit that they knew BAT's intention was to withhold sensistive studies about smoking and health and they helped anyway.

One success for Imperial on the day came when Mr Johnston raised Exhibit 68, a daily trial report from Imperial Tobacco's lawyers to company executives from the trial on the industry's constitutional challenge to the Tobacco Products Control Act from October 1989. The report, on its face, goes against Imperial's theory of the case because it calls the decision by the trial judge, Justice Chabot, to exclude the BAT scientific reports from the evidence in that case a "major victory". Mr Barnes seemed to have been waiting or hoping for the plaintiffs to raise this document, because he hastened to testify that the reason they considered it a major victory was because they thought it would get BAT off Imperial's back about the document retention policy. He denied that they thought excluding these studies about tobacco and health strengthened Imperial's case.

Faced with a witness sticking so resolutely to his position, the plaintiff lawyers needed to undercut his credibility by confronting him with facts that undermined Imperial's theory of the case and that Mr Barnes could not explain away without looking absurd. Mr Johnston scored one of these when he confronted Mr Barnes with Exhibit 297-12, a 2010 email from Osler, Hoskins and Harcourt to the plaintiffs containing answers to questions posed by the plaintiffs during pre-trial discovery. In response to a question to Imperial discovery witness Ed Ricard about why the destroyed documents were in the possession of Ogilvy Renault (Mr Potter's firm), Mr Barnes' firm wrote to the plaintiffs (on page 18 of the exhibit):

The documents referenced in ER-30 were shipped to Ogilvy Renault for review, for legal advice and in connection with the implementation of the document retention policy. (emphasis added)
Mr Johnston asked Mr Barnes if this was true. Mr Barnes said he had no knowlegde of this but, if it was an answer provided by his firm, it must have been true. Asked if he still persisted in his position that there was "no legal involvement at all" in the selection of documents to be destroyed, Mr Barnes qualified his answer with the words "that I know of".

Ms Glendinning's cross-examination of her long-time law partner might well have set a speed record. She rhymed off her questions and he rhymed off his answers so fast that Justice Riordan had to stop them at one point and ask them to repeat some questions and answers because he'd missed them the first time. Ms Glendinning had Mr Barnes re-emphasize Imperial's position that the late Dr Dunn was responsible for deciding which documents were destroyed, although this may have backfired for Imperial when it opened the door for Mr Johnston to ask further questions in response to Ms Glendinning's cross-examination; Mr Barnes had to concede in response to these questions that his only basis for asserting that the decisions were made by Dr Dunn, or someone designated by Dr Dunn, was the use of the words "in compliance with its document retention policy" in Mr Potter's letters reporting the destruction of the documents to BAT (Exhibits 58 and 59).

What, exactly, is a threat?

At the end of her cross-examination, Ms Glendinning asked Mr Barnes if, prior to Caputo (a product liability case filed against Imperial in January 1995), Imperial Tobacco was subject to any "pending or threatened litigation".

"Not that I am aware of," replied Mr Barnes.

On redirect, Mr Johnston asked Mr Barnes what his understanding of the word "threatened" was. Mr Barnes defined this as a written threat that someone was going to sue you. This is a potentially critical point because it goes to when, exactly, Imperial Tobacco's duty not to destroy documents relevant to litigation was triggered. Imperial only put a freeze on destroying documents in 1995, once it was named as a defendant in the Caputo case in Ontario (consistent with Mr Barnes' definition of "threatened"), but common sense suggests that they were aware of the litigation threat long before this, and long before they destroyed their only copies of the sensitive scientific studies on smoking and health that emanated from BAT.

As plaintiff-side lawyer Gordon Kugler brought to Mr Barnes' attention in his redirect questioning, the tobacco industry in Canada, including Imperial Tobacco, initiated the "Four Seasons Project" as early as 1985 to start planning for anticipated product liability litigation. Mr Barnes minimized this, saying that just because they conducted a planning exercise did not mean they were actually contemplating litigation. One has to wonder how much time and money the tobacco industry had on its hands in order to think it worth conducting such an extensive planning exercise for litigation that it was not, according to Mr Barnes, expecting to happen.

What did happen on February 26, 1987, still years before Imperial destroyed the documents, was that a group of Canadians called Relatives (and Friends) and Dead and Dying Smokers announced publicly that it was organizing to sue the tobacco industry for product liability. Apparently this was not considered a threat by Imperial Tobacco or its counsel, Mr Barnes.

Just over a year later, in June 1988, Roger Perron, who smoked and lost his legs to Buerger's Disease, filed the first tobacco product liability claim in Canadian legal history in British Columbia. Mr Perron's case was against RJR-MacDonald, since Mr Perron smoked that company's cigarettes, but apparently Imperial Tobacco and its counsel, Mr Barnes, did not think this represented a threat that they, too, might face such a court action. The Perron case was still before the courts when Imperial destroyed the documents, although it was later thrown out for having missed the limitation period.

Most devastating of all for Imperial's theory of the case was BAT lawyer John Meltzer's deposition, a video of which was played for Justice Riordan in court today (here is the transcript). Mr Meltzer testified that he discussed the impact that the BAT studies would have on litigation in Canada with Roger Ackman, Imperial's top in house lawyer, as well as Mr Barnes and Mr Potter, during the development of Imperial's document retention/destruction policy in 1989-90. This directly contradicts Mr Barnes' testimony that Imperial was not concerned about the impact these documents would have had on litigation within Canada, and seriously undermines Imperial's theory that it was not yet contemplating litigation when it destroyed the documents in 1992.


Tomorrow will see the return of three witnesses who have appeared previously: former Canadian Tobacco Manufacturers' Council communications officer Jacques LaRivière, former Imperial Tobacco scientist Dr Andrew Porter, and former Imperial markting executive Jacques Woods. All will make brief appearances to answer follow-up questions on their previous testimony.

By Michael DeRosenroll for Cynthia Callard

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