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

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


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: https://tobacco.asp.visard.ca

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.

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?"

"Correct."

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: https://tobacco.asp.visard.ca

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.