Tuesday, 11 December 2012

Day 93: Trying to subpoena dirt

Those coming to the Palais de Justice this morning to watch Jeffrey Wigand's second day of testimony at the trial of the Montreal class action suits might have been disappointed that the witness never got much of an opportunity to share any more stories about his life as a scientist working in a BAT-owned company in the early 1990s.

On the other hand, the rock-em sock-em legal fight that took up the day's proceedings was plenty entertaining. It was a lively court-room match as the lawyers representing Quebec smokers tried to protect their witness from harassment (and get a damaging document on the record) and the lawyers representing Imperial Tobacco tried to convince the judge to impose sanctions on their opponents for improper procedures (and prevent further damaging testimony).

If nothing else, today was instructive about the style of play that Imperial Tobacco is moving towards, and how far it will go to make life miserable for witnesses that testify against it.

A truncated examination

Bruce Johnston's examination of Jeffrey Wigand had been suspended yesterday evening due to objections of Imperial Tobacco to the introduction of a 1989 memo to Brown and Williamson CEO from its counsel, J. Kendrick Wells about which Mr. Johnston wished to base some questions to his witness.

The memo outlines the lawyer's concerns about the impact of scientific documents in current and future litigation. This candid explanation strengthens the link between the decision of BAT to put lawyers in charge of scientific documents and events at a trial that took place 23 years ago in a courtroom only two floors below Justice Riordan's bench. In this trial, this would be a "hot document" in a series of exhibits on document destruction.
 The Canadian case is in an especially disadvantageous posture for document production. The government is likely to go directly to the heart of the Canadian and BATCo research documents most difficult to explain.
Despite the stamp of "attorney client privilege," this document has been admitted into other tobacco trials  and is available on the Legacy website. (It was given a privilege status by a Washington Court). Whether  Dr. Wigand will ever be questioned on this document is not yet clear, as the issue became sidelined in today's tussle over the material which Imperial Tobacco would be allowed to demand to base its cross-examination of Dr. Wigand.

The Finger Man and the Subpoena

Alexandre Fallon
The photo of Alexandre Fallon makes him look like a perfectly fine young man, and his bio on the web-site of his employer, Osler, is one that would make many mothers proud.

But the actons of this attractive fellow yesterday evening were the first thing discussed this morning. Apparently it was his job to prepare a subpoena to serve on Jeffrey Wigand and to identify the witness to the court official who was waiting outside the courtroom to serve it on Dr. Wigand. The subpoena orders  Dr. Wigand to produce a number of documents and appear on Thursday morning. Special permission had been obtained to shorten the usual time required on such a summons.

Justice Riordan seemed somewhat surprised by this turn of events, especially the decision of Imperial Tobacco's lawyers to have the subpoena fast tracked through the Quebec judicial system without his involvement. (Any irritation he felt about being circumvented was masked in his polite comment - "I was available. I could have helped you with that if was necessary.")

This was the third approach used by Imperial to serve the subpoena. Attempts to serve the first to Dr. Wigand at his rural Michigan home between November 27-30 had failed. A copy had been left pasted to his front door. The second attempt, an application to a Michigan court, had included the misrepresentation of Justice Riordan's views that was discussed yesterday.

Each version sought to force Mr. Wigand to produce the same set of information: his income tax records, consulting contracts with lawyers, records of payment from Ron Motley's law firm, documents related to Jeffrey Wigand's charity, Smoke-free Kids, FBI records regarding threats he received, records related to his employment at Biosonics, diaries and expense claims and performance evaluations at Brown and Williamson.

"Sanctions for Improper Use of Procedure" 

From the cheap seats, it seemed that Imperial Tobacco had a lot of moxy to do such an obvious end-run around Justice Riordan in both Michigan and Quebec courts. But from Imperial Tobacco's perspective, it would seem that any procedural improprieties were at the hands of the plaintiffs, who had failed to cooperate in getting Dr. Wigand to do their bidding.

Deborah Glendinnign and Suzanne Coté climbed onto a high horse as they prepared to make their case. It was Dr. Wigand's wrongdoing that justified extraordinary measures. "We had reason to believe he was avoiding us having serve him with the subpoena," said Ms. Glendinning yesterday.

From this lofty equine perch they also viewed harshly the actions of the plaintiffs, and had prepared a lengthy motion and arguments to seek a "declaration of improper use of procedure by plaintiffs and for sanctions."

Before launching into arguments for and against this suggestion, each side prepared the ground by asking Dr. Wigand about the subpoena and about the material that was requested in it.

Bruce Johnston's questions (technically the last set of questions to the witness pending a decision on the Wells memo), invited Dr. Wigand to outline his activities since leaving Brown and Williamson. Mr. Wigand gave a long list of accomplishments that might have surprised even his admirers in the audience. He has studied, taught, established a charitable foundation, assisted the efforts of the World Health Organization and worked with health ministries in Canada, Holland, Ireland, Finland, Norway, Malta, and Italy. "I feel like a blowhard," he said as he concluded one of the more impressive lists of accomplishment presented to this trial.

Mr. Johnston then invited him to explain why it was that he had not received the subpoena in Michigan.
"I was not in Michigan. I was at the Mayo Clinic in Rochester, New York getting treatment," explained Dr. Wigand. "I returned on 30th, and found a note taped to my front door. I was not in Michigan that whole week."  Bruce Johnston circulated the travel documents that substantiated the claim.

Bruce Johnston then asked about the categories of documents that were identified in the subpoenas. Dr. Wigand explained for each type of information that he either did not keep those records (no diaries, contracts, expense claims), or that the information was a matter of public record (as in the case of the documentation for his charity, Smoke-Free Kids), or that it didn't exist.

This is the first time Deborah Glendinning has questioned a witness whose interests she did not share, and from a purely human (i.e. not legal or strategic) perspective, she did not seem to get a firm footing. She did not improve her own credibility by climbing down from her high horse to acknowledge that receiving medical treatment was an unfortunate but excellent reason to not be available to receive a subpoena. Her hostile disbelief was out of step with the mood of the room.

Even her benign attempt to have the witness put on the record that the Quebec and Michigan subpoenas that had been prepared were virtually identical went wrong. When she tried to help Dr. Wigand answer the question by point out the differing dates that appeared in small print, her approach was taken as threatening and she was reprimanded.

Ms. Glendinning clearly did not believe that Dr. Wigand kept no financial records beyond the five years required under US law. She seemed to find it incredible that he no longer had any paperwork associated with a sizeable loan he received from Ron Motley and which was subsequently forgiven. Nor did she appear to believe the financial arrangement he outlined - that his charity received donations in consideration of his assistance to various legal efforts, and that he drew a salary from this charity. (This is a standard practice in the not-for-profit sector, but has perhaps not yet found its way onto Bay Street).

Her questions were often phrased as accusations, and the responses she received were equally hostile. "You aren’t going to tell this court that you didn’t receive any payments from Ron Motley enterprises!" "I'm not going to quibble with you," "You must have financial records!" 

Her attempt to make Dr. Wigand look like a liar missed their mark. She asked him to admit that he had flown in Ron Motley's jet in order to be deposed for the Mississippi trial some decades ago. The witness repeatedly denied it, and she continued to push the point. When he eventually volunteered that he had flown in a plane owned by Richard Scruggs, the audience broke into quiet laughter.

That is not to say that Ms. Glendinning did not make progress in laying the groundwork for a motion to subpoena records. She established that Dr. Wigand had technical control of his bank account, and could recover financial records from his bank as he could from the secretariat of his charity. She put on record his account of the advice he received from André Lespérance that he need not respond to the subpoena left on his door, as it had no legal authority.

Ms. Glendinning also was able to strike some of Dr. Wigand's testimony from the record. He had referred to  receiving a recent threat and referring it to someone in the US Congress. When he refused to provide details on this, Justice Riordan ordered this part of his testimony removed.

But Imperial Tobacco wanted all of Dr. Wigand's testimony struck down. 

After the last question to the witness, Suzanne Coté began to present her proposal that the actions of the plaintiffs were so improper that Justice Riordan should strike the testimony of Dr. Wigand as a sanction against this bad behaviour.

(Keeners take note: she based her appeal on sections 54.1, 54.3, 302 and 311 of the Quebec Code of Civil Procedure. She did not mention the irony that one of the reasons that this section was added to the code was to "strike a fairer balance between the financial strength" of clients like hers and ordinary citizens.)

Ms. Coté also appealed to Justice Riordan's May 2nd judgement, which is cited almost daily in this trial. "What inspired you in that decision is that everybody should cooperate," she said. What goes around should come around, she suggested. "If we had done the same thing, we might find ourselves in jail." 

Before allowing the plaintiffs to reply to the motion, Justice Riordan wanted further explanation of why Imperial Tobacco needed such specific information. "Have you kept all your expense reports?" he asked Ms. Coté in a doubtful tone. "I have them since 1981!" she said proudly. (Is there anyone else who finds this scary?)

She said they needed the documents listed in the subpoena to properly make their case. "We need to know how much is going to the organization. He is getting compensation for all the work he does against tobacco companies. I think it is relevant to his credibility."

During Imperial Tobacco's questions to the witness and their accusations against his team's behaviour, André Lespérance had maintained a look of patient composure. In responding to the motion, his tone suggested that it was not really a proposal that should be taken seriously. "They are creating a tempest in a teapot," he suggested. His brief reply stressed that Mr. Wigand's appearance at the trial had been determined for more than a year, and that there had been plenty of time to follow the normal procedures.

The ruling

Justice Riordan broke court early for lunch, and over the break he drafted a ruling he read from his computer screen when the court resumed at 2:30. In it he agreed that Dr. Wigand would be asked to return at a later date with some of the documents the industry sought, but he made it clear that the plaintiffs were not the ones at fault.
"Imperial Tobacco's request for some financial background is not unreasonable. What is unreasonable is to wait until the last day of his testimony to serve a subpoena requesting that financial background and more. It has been clear for months - many months - that he would be called. There is no excuse not to take the normal steps to serve a subpoena in the normal ways. That said, both the plaintiffs appear to feel he is a key witness. A proper cross examination is in order." ...    
"The impropriety alleged against plaintiffs is not founded. The situation of which [Imperial Tobacco] complains could have been avoided." 
Justice Riordan redrafted the subpoena to define the requirements of Dr. Wigand, cutting sections of the subpoena where he accepted Dr. Wigand's testimony as proof that the material was not relevant or available. He also ordered that Imperial Tobacco defray any costs incurred by Dr. Wigand in complying with the ruling or his return to Montreal.

Dr. Wigand has until February 15 to provide the information.

At what level does being paid reduce your credibility? Or enhance it?

The fees received by Dr. Wigand and Dr. Proctor have both been a primary focus of the defendant lawyers attempts to discredit these witnesses. This is a new element in this trial, and a puzzling one.

The plaintiffs' lawyers have rarely asked questions about the reimbursement of witnesses. On one attempt to do so in October, JTI-Macdonald's lawyer, Francois Grondin had objected to Mary Trudelle being asked whether she had a written agreement for the compensation she would receive in preparation for her testimony. "Irrelevant," said Mr. Grondin."And privilege, at some point. ... this is going too far." After his objection, that line of questioning of Ms. Trudelle was dropped.

Yesterday, André Lespérance expressed concerns of the plaintiffs that they felt there was a "too far" point on such questions. "There's a basic rule of evidence that you ask the question, but you don't attack credibility on a collateral issue. Right? So this is a purely collateral issue. It's abusive. But if this is the rule of the game, we'll apply it in the future, with pleasure."

In a war of optics on over-payment of witnesses, it is hard to see how the tobacco companies could come out ahead.

Planning ahead

"Don't forget, I want to know on December 12th. about what the companies intend to do with their defence." Those were Justice Riordan's last words on November 29th for a week's recess. Today Deborah Glendinning told him "We have no plan to present tomorrow."

This did not go over well. "I gave you 2 weeks to prepare this and I specifically asked for this to be available tomorrow," was the stern reminder. Ms. Glendinning offered an explanation of the reasons, but with no tone of apology and no commitment to progress. Justice Riordan had been given little reason to back down from his request, and it began to look like a stand-off.

Simon Potter came to the rescue. He offered a sincere-sounding explanation. "There is also frustration among the lawyers" he said with "differing" and "ingrained" views. "We all know we have to come up with it.... We are trying."  

The companies now have until January 14th to present the structure for their defence.

Tomorrow there will be no witnesses. The acceptability of "2870" documents will be discussed.