Thursday, 27 February 2014

Days 211-212: Horse trading? Not between this bunch.

There were some surprising moments in the Montreal tobacco trials during today's half-day discussion.

A potential client expressed surprise that Quebec trial documents were only available in French (weren't we bilingual?!) . Plaintiff lawyer André Lespérance said he was surprised at what he saw as inconsistencies in Imperial Tobacco's criteria for evidence. Justice Riordan was surprised that "after all these years at trial"  Mr. Lespérance was still capable of being surprised.

As for me? My surprise was that I had missed an entire day of this unique trial. Yikes!

At the end of last week, Justice Riordan agreed to "invest" a two-day break to allow the parties to negotiate their respective lists of orphaned documents, with a view to facilitating the process of these being entered under the provisions of Article 2870 of Quebec's Civil Code. (This is the section that allows evidence to be entered, even if there is not a witness to testify about it).

The horse trading appears to have gone badly, and someone must have made the call to stop pouring good time after bad. Justice Riordan was called back to arbitrate, and the court sat without onlookers on Tuesday, February 25.

My embarrassment at being AWOL (honest, boss, there was no way I could have known!) was countered by the relief at having been saved from what looks to have been a rather unpleasant round of prolonged but mostly unsuccessful objections.

Justice Riordan established criteria for 2870 documents in two written rulings - one on January 10, 2013 and the other on January 28, 2013. Later last year, the Court of Appeal said that could not/would not reconsider his decisions.

Nonetheless, some grey zone must have remained -- and a large enough zone for decisions this week that seemed to surprise both sides.

Questions raised - even today - seemed aimed at further stirring the pot about the categories of evidence in this trial. The meaning of "2M" documents was again discussed - almost 2 years after the "2 May 2012" ruling that created this category of evidence. And a new category was coined this week: if I understand correctly, exhibits with the suffix "AUTH" are documents whose authorship or progeny is acknowledged while the "truth of the contents is not."  

Tuesday's List

The "2870" documents reviewed on Tuesday were those proposed by the plaintiffs' side. Most of these had been introduced during their cross-examination of defendants' witnesses over the past 10 months, with the discussion of their eligibility as evidence deferred until this week.

Among these are business records which did not survive in the Canadian files of Philip Morris, but which were safeguarded by its headquarters and which are now available on the Legacy site.

Exhibit 1566 is one such delightful example - it captures opinions of one company about the other, and of all companies about the government. Marc Lalonde was apparently a Health Minister approved of by Imperial Tobacco, and a rationale for a strategy to use "time or procrastination to delay any given government request."

The plaintiffs were not successful in persuading Justice Riordan on all of the forty-plus documents they put to him. Three of these were struck from the trial record and "unfiled". (Exhibits 15981625, and 1633 are no longer part of this story!)

Today's List

For three other documents, the plaintiffs were instructed on Tuesday to make clearer why it was not possible to have the author of the document testify. This morning, after what sounds like some late-night calls to other sides of the world, they returned with some colourful stories of unavailability.

One author - BAT lawyer Nick Cannar - had pulled up stakes from his last known address in Australia. He could not be found, even by the realtor who managed the sale of his house. As a result, a memo he wrote describing document destruction at Imperial Tobacco and the struggles between research head, Patrick Dunn, and company lawyer Canada, Roger Ackman, is now fully on the record. (Exhibit 1577).

The other potential witness was Peter N. Lee, a consultant statistician to UK tobacco companies. Mr. Lee had responded to a request about his availability by asking whether he would be reimbursed for his time and expenses. Having learned that fact witnesses receive no compensation other than travel costs, he informed the plaintiffs that it would be a "horrendous waste of time" for him to come to Montreal. Nonetheless, he admitted that he wrote the critique of the 1979 Surgeon General's report for the companies (Exhibit 1273), but assured them that it was an "accurate" and "unbiased" interpretation. (The exchange of correspondence, at the request of Imperial Tobacco, will become Exhibit 1273.1 and 1273.2).

Justice Riordan commented that the call on time wasting was his to make, but agreed that it would be disproportionate to ask Mr. Lee to make the journey. Another document makes the cut!.

The shoe on the other foot

By contrast, most of the documents reviewed today were proposed by the defendants. The bulk of these were at the request of JTI-Macdonald, and were not opposed by the plaintiffs on the basis that they would be ruled in favour by Justice Riordan. They were consequently not formally presented or discussed (although the index was shown on the videoscreens) and were swiftly put onto the record. They will become new exhibits, numbered from 40507 to 40547.61. Among them are many government records.

A much shorter list of Imperial Tobacco documents was considered today, and these were admitted over the objections of the plaintiffs. One of these documents I found particularly interesting, as it hints at the ways in which elected officials and public servants within Health Canada did not see eye-to-eye.

In 1977, a letter was prepared for Health Minister Marc Lalonde's signature. An unsigned copy of the letter was found by the plaintiffs among Imperial Tobacco's discovery documents and shown to Mr. Lalonde months ago when he testified at the trial last June. (Exhibit 1558). The letter calls on the tobacco companies to "not undertake promotional activities of any kind" at the Commonwealth Games which took place in Edmonton the following year.

"It seems to us that there is an inherent incompatibility between smoking and sports generally and I hope there will be an opportunity for the Council and the Department to examine this matter in depth in the near future."

Today Imperial Tobacco showed a different version of the letter. This one was on letterhead, but was still unsigned. (They had found it among the records provided by the government when it was party to the case).

The memo attached to this copy was not displayed in the court-room, but extracts were read aloud. It would appear that departmental officials had sent the companies an advance copy of the letter they had written for the Minister's signature, as part of preparations for a meeting. Later, however, the officials noted that it had been decided that the letter would not be signed.

So tantalizing! Had the companies contacted the Ministers' office to demand that the draft letter not be sent? Had the department officials merely been bluffing by sending a draft, knowing that they would not get political support?

Justice Riordan commented on the ambiguity of these two versions, and allowed the new version and its covering memo to be entered as Exhibit 1558.1 and  1558.2. He said it would be unreasonable to ask Marc Lalonde to come back to authenticate this one document.

As if the 2870 weren't contentious enough....

Although Justice Riordan tried to break the tension with some light comments, it was clear that after this week's "negotiations" the mood between the two camps was even worse than normal. This did not seem to help the other business items that were up for discussion today.

* Testimony by class members

It had been earlier decided that Imperial Tobacco would provide the plaintiffs with a list of "class members" who might be called to testify.

Justice Riordan seemed surprised to learn today that Imperial Tobacco had asked the plaintiffs not to contact individuals on that list. "You are telling them they can't speak with their clients??"  He made it clear that the plaintiffs were expected to speak with these Quebec smokers - "These are people who are not experienced in court. The idea was that they should be able to be prepared."

Some of those who will be asked to testify may be selected from lists of people who registered as class members which the plaintiffs were required to provide to Imperial Tobacco. Others may be selected by Imperial Tobacco from other sources. With their marketing databases and other survey tools, they presumably have their own recruitment process.

 * Without reserve. Really?

Many months ago, at the beginning of last October, Justice Riordan had been presented with a discussion about another collapsed negotiation, one which had been intended to reduce the number of government witnesses. During the discussion about the impasse, the plaintiffs had offered to exchange the ability to introduce documents without the 2870 process and "without reserve" - provided that the same applied for rebuttal documents.

Today, Craig Lockwood tried to persuade Justice Riordan to hold the plaintiffs to their offer of allowing  documents to become evidence "without reserve." A collection of 100 or so documents had been provided to the plaintiffs this past weekend. Their was no mention, however, of the other side of the offer - reciprocity for plaintiffs documents.

Justice Riordan gave him the I-don't-buy-this-for-a-moment look, and pointed out the conditionality that had been on this offer. He (unusually) scolded Mr. Lockwood for the way in which information about the communication of the documents had been made. He also put pressure on the plaintiffs to agree to timelines to respond to the proposed material.

Both sides got deadlines: Mr. Lockwood must report by next week whether there is a willingness to consider reciprocity from the plaintiffs (if not, the 2870 process will be used). Mr. Lespérance has two weeks to identify rebuttal documents.

These and other unresolved questions about "2870" documents are now expected to be discussed at the end of March. (There are no witnesses scheduled for March 20, 26 or 27).

* The witness schedule

Imperial Tobacco's lawyers were again asked whether or not Mr. Simon Potter and Mr. Lyndon Barnes will be asked by testify, and again said a decision had not been reached. Justice Riordan gave them until March 17th to make up their minds. In the meantime, April 8th has been set aside for these two lawyers.

The judge also authorized André Lespérance to schedule two "counter proof" expert witnesses during the third week of April. Mr. Slovic (warnings) and Mr. Proctor (history) will likely come from the USA to testify that week. The plaintiffs would also like flexibility for other experts to provide rebuttal evidence on days when the trial would otherwise have a whole in the schedule.

Marketer David Soberman is now scheduled to testify mid-April.

The beginning of the end?

For the first time, there was discussion today about the scheduling of the final arguments in this trial, and the process leading up to that stage.

As he promised he would do, Justice Riordan circulated an draft outline for these final submissions. He asked for written comments on this outline by March 20th. "You are going to be able to talk about anything you want to, but I want it to be well organized with the same elements in the same sections."

He said he would be imposing length limits on the written pleadings -- "I know what you people are capable of producing" - and that this too was up for discussion

There will be a break in the trial while these arguments are prepared. "I am willing to give a suspension from the last witness – presumably a class member – until the filing of the plaintiffs notes and authorities, and an additional short delay for the filing of the defendant's."

The question of how long the parties would have to present their case is also up for discussion. The judge reacted to Philippe Trudel's suggestion of one week per side as though he thought that might be too little time - "there are three defendants!". 

Depending on the number of days required to hear from class members, it could all be wrapped up by June. If not, Mr. Trudel suggested that the final arguments be scheduled in the summer months so that people could "move on to other things." Justice Riordan responded by saying "nothing is excluded for the moment."

When the trial resumes on March 10th, it will be entering its third year of hearings. The defence witness scheduled for that day is Laurentius Marais - a mathematician once described in Time Magazine as "extremely convincing".