Monday, 12 November 2012

Day 81: Preparing the ground for the next phase

See note on accessing documents at the end of this post. 

It was clearly not business-as-usual when the Montreal trial of the Quebec class action suits resumed this morning after its scheduled one-week break.

For one thing, the entire Palais de Justice was eerily quiet at the normal beginning of the business week. The hallways and cafeteria were silent and empty - no line-up at any of the building's three coffee bars. And in front of Courtroom 17.09, only a few industry lawyers were present, in a last-minute conference over newly cerlox-bound volumes.

Those of us unaware of the reasons for the empty halls and late start had little time to speculate before the fire alarm sounded and the entire building was evacuated. On the long trek down 17 flights of stairs I reminded myself how fortunate I was that, unlike the women at this trial who work for Osler Hoskin and Harcourt, I am not expected to wear stiletto heels to court.

By the time the building had been re-opened, it was 11 o'clock. Justice Riordan looked  sheepishly at those who had not benefited from prior notice of the alarm and greeted the court "good afternoon". The drill, with its ambiguity of real and pretend alarm was an apt opening for a day set aside to hash out some of the many issues seeking resolution before the trial's next stages. Don't forget to plan an escape route!

Paving the road ahead

Individually and collectively, the items discussed today will influence the shape of the next stage of this trial.

The defendants presented reasons to reduce the scope and impact of the expert witnesses who will begin testifying later this month. They argued against further sources of evidence, and also against the value of  evidence already on the trial record. In a motion filed but not made public, they are proposing to increase the workload and burden of proof on the plaintiffs. My guess is that they may also want to alter the course of the trial by having a pretext to knock a few more times on the door of the Court of Appeal.

Justice Riordan, who was given much to respond to today, also signaled his own view that the trial is moving into a new phase. He again pressed the defendants for further details on their state of readiness, ("I just want to know the status so we can begin scheduling hearings"). He reminded the court that the plaintiffs were expected to have finished presenting their side by the end of February (42 sitting days and counting). He dropped several hints about the challenges that the plaintiffs would have to meet in making their case.

The not-so-contentious stuff

A number of items discussed seemed to have had the heat removed from them. These included:
* progress on the use of confidential information on financial statements, for which a deadline of November 16 was established for the two companies (ITL and RBH) with whom agreements have not yet been reached.
* treatment of documents from the CTMC, whose scanning and transfer should be completed within this calendar year. (Whether or not the trial will hear from another former CTMC employee, the 90 year old Jean Clavel, is still unresolved.)
* agreement by plaintiffs to reduce the number of documents planned to be put to the final major industry witness, John Barnett (current president of RBH).
* possible admission of a document showing that BAT's marketing director, Paul Bingham, ghost-wrote a report for use by academic Jean Boddewyn to fight against advertising bans may be introduced.

Two other items were deferred until tomorrow. One of these is the management of the voluminous record of market surveys done by Imperial Tobacco whose confidentiality was rejected by Justice Riordan earlier this summer. The other is a still-not-explained "motion for directions" that has been filed by the companies, which I believe suggests additional evidentiary burdens on the plaintiffs.

Much of this abridged day was taken up talking about three issues: admissibility of documents from the Legacy collection, parliamentary privilege, and evidence of a man who died before being able to testify for this trial.

Legacy Documents: "Simply because documents are authentic means nothing"

As promised, Simon Potter had filed a motion asking Justice Riordan to prevent Kim Klausner, librarian of  the UCSF Legacy collection, from appearing at the trial, and prohibiting documents from that collection from being put on this trial record.

Before he presented his motion, André Lespérance outlined the three categories of documents he wished to introduce. The first were documents that would have been expected to have been in the corporate records of the Canadian companies now defending themselves, either because they were authored by or sent to an employee of a Canadian company. The others were the scientific knowledge and positioning of public issues that would have become part of the knowledge of the Canadian operations.

Philippe Trudel explained that although the documents were linked to the findings of their expert witnesses, the plaintiffs acknowledged that they would have to present support for the evidentiary value of the documents.

None of this satisfied Simon Potter. He rejected the relationship between the U.S. companies and the Canadian defendants. ("[The plaintiffs] have a habit of saying these are 'maisons mere'. We know this is not true in the case of JTI. We know it is not true in the case of B&W. ... My client was not under a 'maison mere' that had the name Philip in it."). Accepting these documents onto the record would be a "perversion of the rules of evidence," he said, as it would shift the burden of proof onto the defendants.

He dissed the expert witnesses who will begin testifying later this month. "Robert Proctor, who says he is a historian", Mr. Potter described the well-published Stanford University Professor of the History of Science. "In the case of Mr. Pollay it gets worse! Mr. Pollay has simply taken exhibits and produced them as fact of what happened." 

Justice Riordan seemed unmoved by this line of argument. He pointed out that the defendants had had the expert reports for a few years. "If the reliance on the documents is misleading, you have had plenty of opportunities to use your own experts to question the document, or to provide counter proof," he said. (He also repeated cautionary comments to the plaintiffs on the challenges they would face in introducing evidence this way). He said he would not prevent the plaintiffs from Ms. Klausner.

After lunch, Simon Potter tried a new approach. The introduction of evidence this way, he said, was an attempt to side-step the application of section 2870 of Quebec's Code of Civil Procedure. To this, Justice Riordan sounded more sympathetic. He looked towards the plaintiffs and suggested that he had trouble understanding why the "familiar road" would not be the first option, and used air-quotes around "catholic" to suggest they follow a more conventional approach.

He pointed out the vulnerabilities of being too novel: "C'est beau de faire de la jurisprudence, mais parfois la jurisprudence de la Cour supérieure est juste temporaire." - "It's good to set a precedent - but sometimes the precedents in the Superior Court are only temporary."

Deborah Glendinning added that she saw the evidentiary issues with Legacy documents joined with concerns with documents introduced against her objections after Justice Riordan's judgement on May 2 imposed sanctions on her client. "The rules of evidence require that the contents be properly admitted into evidence in order for an expert to testify on them....  Simply because documents are authentic means nothing."

She also took a shot across the bow of  the the first expert witness, Robert Proctor. "[His] opinions and conclusions are not admissible ... just because [the documents] are authentic does not permit an expert to testify. We have a real problem because many of the documents are not yet proven, and there is no way for them to be proven. That has been our problem since the beginning. This evidence from the experts can not be done until this is resolved." 

André Lespérance pointed out that the defendants would run into similar challenges when trying to support the conclusions of their expert witnesses, especially those who relied on extensive archival records from newspapers. Justice Riordan asked André Lespérance to table tomorrow a plan on his use of documents from the Legacy collection, and the issue will be taken up again on Thursday.

Parliamentary Privilege - take 2

Last week, Justice Riordan had indicated he had little appetite to revisit the issue of the use of parliamentary privilege, and when Guy Pratte (who represents JTI-Tobacco) stood to speak on the topic it was clear he was on a short leash.

While acknowledging Justice Riordan's decision to manage the documents in question on an individual basis, Mr. Pratte expressed the view that the other part of the original motion on privilege had not been dealt with -- the striking out of the sections of the statement of claim that referred to statements made in parliament. The only role of those parts of the claim would be to use privileged documents in ways that are not permitted, he said, and therefore they should be struck down.

Justice Riordan has repeated his position on parliamentary privilege on several occasions ("I'm allowing documents in, but I'm going to control the use of them"), but has not given the defendants the satisfaction of a written ruling or a decision that they can trot over to the Court of Appeal. Again today he was forceful in shutting down attempts to reopen the issue. Each of the defendant companies gave it a try, and each was cut short.

To Simon Potter's concerns for "directions on how to live with the judgement that has been rendered - Do we mount a defense against what these experts are clearly trying to do", Justice Riordan said only: "If a witness starts to say something you think goes against parliamentary privilege, I will hear your objections."    

To Suzanne Coté's attempt to draw a parallel between the companies' request to strike down sections of the claim and Justice Riordan's statements, he was even blunter. "I am going to say it one more time. I have the discretion. I am not going to strike down these claims.  I – will – not – strike – the – claims."

The posthumous testimony of David Schechter?

In the last item of the day, the trial returned to the issue of the destruction of scientific documents by Imperial Tobacco. André Lespérance is seeking to put one more nail into the plaintiff's case that the actions of Simon Potter and Imperial Tobacco were improper. 

(It's not just documents that can disappear -- Simon Potter, who in a former life as Imperial Tobacco's outside counsel had been a central figure in the events, left the courtroom before this topic came up).

The nail in question is the written testimony of David Schechter before the American judge who tried the US government case against tobacco companies. In February 2005, the former lawyer for BAT's American operation, Brown and Williamson, who had been involved in developing the document destruction plan, had testified that "Keeping the documents out of the hands of Canadian litigants is one possibility" for those actions.

(Gladys Kessler had required that witnesses in the DOJ case all provide written testimony. Hostile witnesses were offered previous testimony or dispositions and given the opportunity to correct it. No one could say that testimony in that court was unexpected!) 

Mr. Schechter might have had the opportunity to testify directly at this trial, but died shortly after receiving a subpoena to do so. (In May 2011, Justice Riordan authorized an unusual procedure to obtain testimony from Mr. Schechter and another lawyer in the BAT group, John Meltzer. John Meltzer's testimony was presented earlier this June, Exhibit 510).

Suzanne Coté threw up a number of reasons to keep Mr. Schechter's testimony out of this trial. She said that the necessity of this testimony had not been proven, that other testimony on the subject was before the trial, and that she would be unable to cross-examine the witness.

Ms. Coté also suggested that Mr. Schechter's testimony may not have been that reliable. She referred to the trial record of his time in court, and his frequent memory lapses. She pointed out that he was on medication and "undergoing analysis for many years." 

Justice Riordan smiled as he reminded the court of the high number of memory lapses this court has witnessed. He said he would "think about it, and maybe render a judgement Wednesday."

Tomorrow the trial will continue without witnesses. Discussion will focus on the defendants' "motion for directions" and the treatment of Imperial Tobacco's CMA market research. 

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.