Day 172: Asked and answered. (Again)

For the second day in a row, Imperial Tobacco called one of its former senior marketers to testify in its defence at the Montreal Tobacco trials. For the second day in a row, the witness was someone who had already testified at length at this trial -- and for the second day in a row their testimony greatly resembled what they had said before.

But today there were no surprises about the lack of surprises!

Imperial Tobacco counsel, Craig Lockwood, began by warning Justice Riordan that "there will be repetition of some issues that have been raised previously." Justice Riordan smiled as he relaxed the usual rules against rehashing testimony, inviting the plaintiffs to put a blanket objection on the record.

But that is not to say that there were no differences between the answers that Ed Ricard gave today and those he provided during the 7 days he testified in 2012!  His memory of documents and events, for example, seemed much sharper than it had been when questioned by the opposing side. And his concerns for the confidentiality of Imperial Tobacco's secret research has also apparently abated.

(Last year Mr. Ricard was part of a failed attempt by Imperial Tobacco's lawyers to prevent the public release of several marketing documents. Today the same legal team ironically volunteered more information from the CMA research surveys they fought to keep secret - i.e. Exhibit 20298.)

Mr. Lockwood asked many of the same questions put yesterday to the more animated and loquacious Mr. Kalhok. The side-by-side comparison emphasized the highly polished witness skills of Mr. Ricard.

"Who is the target of imperials marketing initiatives?"
"Adult smokers. Smokers who are 18 years and over."

"Did you ever target non-smokers?"
"No, I did not."

"What was the purpose of marketing?"
"To grow our market share. To improve market share on an annual ongoing basis and to increase the value of our brand."


You get the picture!

The recapitulating (but not capitulating) Ed. Ricard:

Non smokers were of no interest to ITL. Mr. Ricard explained that there was no business case to be made for targeting marketing to non smokers in the face of "a tidal wave of anti smoking sentiment." "We knew we would get a better return in investment on something we knew how to do and that we were equipped to do – to grow market share. We did not have information or expertise to try to influence such established fundamental trends." 

Starters were of little interest to this tobacco company, except as data for its long term forecasting. "We ran across starters in our information gathering in response to our questions on brand usage and whether they had a previous brand." There was much more money to be made by focusing on switchers than starters -- "20 times more brand switching than starting."  (Exhibit 20298)

The company did not try to influence quitters. The decision to quit stemmed from social pressure, health concerns and cost. These "were not things we could address in any meaningful way."

Light cigarettes were not a device to stall quitting. "The introduction of light cigarettes was in response to a consumer trend. .. Consumers were already looking for milder products." And they certainly were not promoted as safer, although admittedly "there was a certain percentage of people who viewed light cigarettes as potentially healthier."

No health claims were ever made for ITL products, including light cigarettes. Consumers understood that "the term light in and of itself was a relative term." Proof of this was offered in the comparison of the perceived strength of brands and the actual machine tar yields. (Exhibit 20300, 20300.1, 20301).

Plans to move away from focusing on brand share went nowhere. What then about exhibits that show ITL marketing executives reflecting on how to reach pre-starters or to get quitters to start smoking again - like Exhibit 1110? Mr. Ricard explained this memo was written by the intellectually curious Mr. Bexon when he was between positions and had a lot of time on his hands. "He spent a lot of time in 84 reflecting and philosophizing about the industry... Thinking outside of the box - he was a big proponent of that."  

The major project spearheaded by Bob Bexon, which was aimed at establishing whether the trend away from smoking could be reversed (Project Viking) had concluded "that nothing could be done."  The question was never revisited.

The company was not responsible for the views of contractors. Research firms engaged by ITL were "not constrained" in what they submitted, but "often they lacked context or complete information.... we did not blindly accept what they had to say." 

Mr. Ricard said that ITL did not target youth
Their market research firm must have got it wrong
Exhibit 520-CRY27

It was the outside supplier, for example, who thought up the name and design of the Youth Target survey. Although these and other ITL reports on youth carry the label CRY (which has been thought to mean Consumer Research Youth), Mr. Ricard said he had never heard such a term while working at the company. He thought perhaps it had been coined by the Library staff.
 
Even internal ITL research findings should not be taken at face value -- such as the long term measurements of how many smokers believed that smoking was harmful.

Although the company paid for these questions to be asked twice a year, the results were understood to be "not a good measures of magnitude of anything." Because they were unreliable in this way, the supplier had proposed changing them, but a decision was reached to keep them the same so as to better compare trends over time.

Nicotine was never an issues for smokers, said Mr. Ricard. "They compared brands based on the tar level." And "satisfaction?" - consumers understood that only to mean a cigarette that they liked. The company never used nicotine as a metric to guide their product development.

Older smokers are worth more to tobacco companies than younger smokers.  Smokers were less likely to switch brands as they got older (Exhibit 20299) so recruiting them when they were "25 was better than [when they were] 18."  Because smokers increase the number of cigarettes they use per day during middle age "it is the 35-49 demographic that drives the volume." 

Underage smokers had little to offer the company compared with older smokers, he said. The "15 to 19 year old smokers represented less than 6% of the total volume of sales" - and most of those were taken up by those who were of legal age to smoke.

The decision to drop raise the ages of survey respondents for the company resulted from political pressure by the Non-Smokers' Rights Association and others (Exhibit 20302). Mr. Ricard saw this change as a major compromise to the value of the multi-year data collection.  "We lost a lot of the usefulness and value of the information." But even though this change made no difference to how they marketed, "our president, Don Brown, was insistent. He did not want to deal with this any more."

The company did the best it could to prevent children from smoking. Children under 16 or 18 might have purchased kiddy packs, or seen advertising billboards, or purchased cigarettes - but these marketing activities were never intended to reach youth. "We did the best we could. I don’t think [the measures in the voluntary code] were 100% effective. I know there was some exposure of our advertising - but I feel that we did what we could and put the steps in place to minimize that exposure."

"We would sometimes get proposals from our ad agencies for images that we would reject because we thought they were too appealing to youth." These, he said, were turned down - but intriguingly no documentary evidence of such a decision was presented.

The company took proactive measures to prevent youth access. "Project ID was an initiative to work with our retailers to make sure they did not sell cigarettes to children under 18."  This was no PR effort, he said - although "there may have been some positive public relations fall-out as a result of it.'

Brand share based on national sales is misleading. The companies failed to provide an historic brand share to Justice Riordan when asked, and the only version entered into evidence was one compiled by the plaintiffs.(Exhibit 1437) Mr. Ricard said that Imperial Tobacco's market share in Quebec was lower than the national figures, and that JTI-Macdonald's was higher. (Again, no documents were provided to support this).

By mid-afternoon, Mr. Lockwood had finished his questions. The decision was that there would be no cross-examination, and this witness left the stand  - for the eighth time .

Tomorrow, the plaintiffs will conclude their cross-examination of Gaetan Duplessis. Next week is a short week, with one witness from Imperial Tobacco on each of Tuesday (Mr. Wolfgang Hirtle)  and Wednesday (Mr. Neil Blanche).

Day 50: Adieu, Monsieur Ricard

For information on accessing documents linked to this blog, see note at the end of this post 

Wednesday was the seventh and last day that Mr. Ed Ricard testified at the class action trial where $27 billion is being demanded from tobacco companies in compensation for the addiction and lung disease experienced by  Quebec smokers.

Ed Ricard has been a major witness for Imperial Tobacco, both in this trial and in other litigation that his former employer has been involved with. It is not surprising that the plaintiffs chose to schedule him as they wind up this stage of their case against Canada's largest tobacco company - attacks on his credibility flow automatically to the credibility of the company who chose him as their spokesperson. Yet the day was full of surprises ...

Selling cigarettes to underachieving, live-for-the-moment, self-indulgent youth. 

Yesterday afternoon, Mr. Johnston had introduced documents that traced a partnership with Imperial Tobacco, Labbatt's Brewery and the marketing firm, the Creative Research Group, to study the lifestyle attitudes of young Canadians and to figure out what "turns them on" (exhibit 292-87).

In the first wave of this research in 1987 the analysts divided Canadian young people into psycho-graphic groups. The group of great interest to the company, representing about one-fourth of this population was named after weekend-lovers - TGIF (Thank God It's Friday).

"The largest single group is the Underachievers or, as we prefer to call then, The T.G.I.F. group. This segment is rooted in the present. They live for the moment and tend to be self-indulgent." ... "They are the most prominent supporters of smoking." (Exhibit 520-cry27).

A few weeks later, the market researchers suggested how this information could be used to design brands that would appeal to those young people most likely to smoke. (A Review of ITL Brand Strategies - Exhibit 520-cry32, 520-cry32A).

Player's, too, provides highly relevant options to its intended audience. The recommendation is that perhaps an even stronger association with outdoors, social joie de vivre would be beneficial. The T.G.I.F. group is singled out as having most potential in characterizing the trademark .

Mr. Ricard has repeatedly testified that only adult smokers were targetted by the company's market research. This is consistent with the distinction in the survey report (Exhibit 520-cry30) between the general questions that were asked of respondents as young as 13 and the "custom" section on smoking which  "focusses exclusively on smokers aged 18 years or older." The Review on Brand Strategies similarly  claimed to only use data from those over 18.

Fake ID: for under-age smokers AND the companies that sell to them

Bruce Johnson set out to show that the recommendations on tweaking marketing to better reach the TGIF group were in fact based on an analysis of those as young as 13 years of age.

Through his questions to Mr. Ricard, he methodically took the court through the many ways in which the findings on 13-24 year old smokers and non-smokers were identical to those presented in the report that was said to be exclusively on 18-24 year smokers. 

By the end of these questions, he left a solid impression that Imperial Tobacco's research looked like it was excluding results from underage participants, while it was actually including them in the analysis.

Research reports on 13-24 year olds (left) and
18-24 year olds (right) with suspiciously identical values. 

Mr. Johnston offered a new theory to the witness: "Isn’t the language used meant to give the impression that you are looking at 18 year olds, when you are really looking at 13 year olds?"  

Absolutely not! replied Mr. Ricard. But the pounding his credibility had taken during the week made his answer sound as feeble as the documents made it look.  It was a Perry Mason moment.

More research on children, but no documents on lowering price

After this moment of drama, more mundane issues were brought forward. The first was the introduction of several marketing documents, including some on young Canadians that were not mentioned in either of the constitutional challenges to advertising bans. (In a few weeks, after some formalities have been observed, these will be made public and discussed further on this blog.)

One area where the plaintiffs have been unable to make ground is the role of Imperial Tobacco in increasing smoking by reducing the price of cigarettes (such as by feeding the illicit market of untaxed cigarettes). As he had earlier, Judge Riordan refused to permit evidence of Imperial Tobacco's acknowledgement of the power of pricing to influence youth smoking. Like the now-forbidden topic of second-hand smoke, this is a big part of the story of tobacco industry contribution to disease that may never be included in this trial.

The cross examination

As lunch-time approached, Deborah Glendinning stepped forward to give Mr. Ricard the opportunity to put a different light on some of the issues covered during his direct examination. She encouraged him to remember that Imperial Tobacco had decided against taking up some ideas from the Viking research that they could actively resist anti-tobacco attitudes. She asked whether he had ever met Mme Polet (the current president of Imperial Tobacco), whose testimony about the shutting down of the research branch had been in sharp contrast to his own and she tried (unsuccessfully) to offer him the opportunity to explain how Mme Polet had been mistaken.

She scored an "own goal" however when she tried to do damage control on Bruce Johnston's suggestion that research on youth was mislabelled a research on smokers of 'legal age'.  By opening the topic she allowed Mr. Johnston to repeat his points, and in the squabble over objections between the two lawyers, she snapped "The documents speak for themselves." The courtroom went silent -- ITL's lawyer had confirmed the very point the plaintiff was trying to make.

As if that was not enough ....

Justice Riordan had clearly expected that this witness would leave by lunch, and looked surprised (and not pleased) when Maurice Regnier informed the court that his questions for the witness would go into the afternoon.

The federal government has kept a low profile in this case, presumably because to do otherwise would threaten their real objective, which is to be dismissed from the case altogether (a Court of Appeal ruling on their release is pending). 

But Mr. Ricard, unlike other Imperial Tobacco witnesses, has refused to concede that the federal government had no part in the actions of the company with respect to warning their clients. His testimony has been firmly aligned with the 'action in warranty' claim made by Imperial Tobacco against the federal government. This was material that Mr. Regnier may have felt he could not leave unchallenged.

Hearsay

Mr. Regnier started by referring to Mr. Ricard's statement last May that the reason his company could not restrict its research to 'legal' smokers and was required to lower the age of its surveys to 15 was because of the need to align their findings with census data. ("We needed a basis on which to establish a representative sample, and that basis is the Canadian census information.  It tells us how many people live in different areas of the country and how many people are in different age and gender groups.  And so we used that information as the basis to establish our representative sample of the Canadian population." - May 9, 2012)

Mr. Regnier displayed library copies of Statistics Canada census information which were broken not into age groups like 15-19 but were by single years of birth. This apparently was new information to Mr. Ricard, who explained that it his information had been provided by their research supplier. "I did not have personal knowledge of how the stats can information was structured." 

"It was hearsay?" Mr. Regnier asked. Hearsay was a new issue in this trial, and Justice Riordan directly asked the witness whether the reason came from personal knowledge or from the supplier. "It came from our supplier."

Requests from government

Mr. Regnier then drew attention to several documents that had been cited by the witness as support for his view that the government was opposed to the companies informing consumers of the harms of smoking. 

Mr. Ricard conceded that there was nothing in Judy Lamarsh's 1963 speech to the House of Commons that referred to an agreement with the industry, nor was there anything in the correspondence from senior health ministry officials. And as for the CTMC manual that he had cited (exhibit 20003), it turns out that Mr. Ricard had no personal knowledge of any government involvement in its development. 

To the contrary, exhibits filed by Mr. Regnier today showed the federal government expressing regret at not being involved in the development of the CTMC voluntary code, and asking the companies to develop means of informing smokers of "least harmful" ways of smoking. (Exhibit 500013 is not yet available).

Repeated objections by industry lawyers over these new documents blocked Mr. Regnier's ability to push Mr. Ricard to agree that the government had asked the companies to do more.  "You've got your proof," said Justice Riordan, "but I maintain the objection" to the question.

“Smoking reduces life expectancy”

Mr. Regnier's last point came in the form of a twenty-year old sleeve to a package of du Maurier cigarettes, taken he said from his 'professional collection.'  

This package, made for export to the United States during the period of contraband 'round-tripping,' was passed around the room (but not too observers at the back of the room!). The warning in English and French seemed to be different than any required in Canada or the US at any time. The bilingual warning warning, "smoking reduces life expectancy" was on the side of the package, but not the front and not in contrasting colours as required after 1989 when this warning formulation was regulated. 

This package took everyone by surprise. "He's pulling that out of his hat" complained RBH lawyer Jean Francois Lehoux. After the dust died down, Mr. Regnier's questions made it clear that Mr. Ricard had no explanation as to why the companies had been able to print this novel warning if they were constrained by an agreement with government, as he had previously testified.

Damage control - round 2

Again, Deborah Glendinning struggled to put her clients' witness under a better light. The session suspended for more than half an hour while her team went to recover a document. With such an unusual and prolonged delay, expectations might have been high. But the companies had no rabbits in their hat -- just a copy of a government report on smoking which used the 15-19 year age category. (This report had nothing to do with the census that Mr. Ricard had referred to, but was based on a Labour Force Survey analagous to Imperial Tobacco's own in-home Monothly Monitor).

"Would this be the kind of survey information that Imperial Tobacco would be basing its age breakdown on?" "Would you agree that the suggestion by Maintre Regnier that we could have done something different is incorrect?"  Mr. Ricard agreed with everything she said.

Before he left, Mr. Ricard was thanked effusively by Judge Riordan for his diligence and patience. Go figure. 

Tomorrow, a new witness will appear. Pierre Leblond who worked in product development for Imperial Tobacco is expected to testify for only one day.

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 49: Conflicting ITL testimony

For information on accessing documents linked to this blog, see note at the end of this post

This morning Bruce Johnston resumed his questioning of Imperial Tobacco's main witness, Ed Ricard.  Again the witness faced a barrage on his credibility and the credibility of the company where he had spent his 28 year career and where his father was once the boss.

Unlike the pugilism of the initial questions yesterday afternoon, Bruce Johnston today adopted a more subdued questioning style, offering a patient and detailed comparison of Mr. Ricard's testimony against the evidence offered by other witnesses or documents.

For his part, Mr. Ricard also changed the style in which he answered. While refusing all invitations to change his testimony or have his memory refreshed, he less frequently responded with glib non-answers.

The result was a compact farewell tour of the issues as expressed by Mr. Ricard.  This concentrated review of key issues, and often dramatic conflict among witness testimony made for one of the richest audience experiences of the trial to date. (The international tobacco control experts who took a break from the World Cancer Congress to visit the trial today may have left with a rosy view of the viewer friendliness of these proceedings).

Common law duty to warn 

Bruce Johnston again started by asking Mr. Ricard about the alleged agreement between the government of Canada and Imperial Tobacco, and the witness' view that the company was prevented from warning its customers or providing them with health information about their products.

He showed Mr. Ricard the 1988 Tobacco Products Control Act, recalling previous occasions when the witness had presented the same law to different courts. He drew attention to section 9(3) which clarified that compulsory health warnings did not replace any other legal obligations of the industry.

Tobacco Products Control Act, 1988, s. 9(3)

Unlike Mr. Mercier, who had seen the same section on May 7th, Mr. Ricard did not acknowledge that there were no real legal impediments. To the contrary, he said, other parts of the law restricted anything but "name, brand name, trade marks," tax stamps and consumer packaging information on packages. Mr. Ricard was prepared with a counter-explanation.
Our interpretation of the law was that the messages needed to appear on the packs as identified in the legislation. .... I maintain our testimony. 

Nor would Mr. Ricard offer any suggestion of why Mr. Mercier, who was his president at the time the law was passed, would have had a different view.

Marketing safer, marketing lighter. 

In the later part of his work with Imperial Tobacco (he retired at the age of 50 in February 2011), Mr. Ricard headed up the company's harm reduction project. Mr. Johnston wanted to know how the company planned to market these products if they were banned from talking about risks of smoking. Upon a successful development of a safer cigarette you would then be forbidden from telling people about it? he asked.

Mr. Ricard explained their approach "If we had a product that was scientifically supportable that it was different on the market one of the major challenges was how to communicate that to the public. One of the principles in the department was that if we ever got to that point we would do it with the government." 

This approach was never put to the test. Mr. Ricard testified that the harm reduction program was 'reorganized' in 2010, and that "the idea of bringing other [non combustible] products to the market was dropped." At the same time much of the work on combustible products was moved to BAT headquarters in the UK.

Yet Imperial Tobacco continues to manufacture and sell lower-delivery products and Mr. Johnston pointed out that "several witnesses, including yourself, testified that you did believe that light delivery cigarettes posed less of a risk than other products."  

After pushing Mr. Ricard to elaborate on why he thought light cigarettes were a "good thing" and drawing out his belief that they were associated with a "statistically reduced risk" of smoking, Mr. Johnston contrasted this with the testimony of  Imperial Tobacco president, Marie Polet.  On June 5th Mme Polet testified that she did not think there were studies that showed that lower delivery brands are associated with a lesser degree of illness in smokers.

Again, Mr. Ricard could not explain the discrepancy in views.

Contradicting the boss - again

Not only did Imperial Tobacco's president and Imperial Tobacco's witness disagree about the existence of certain scientific evidence, they even disagreed about the existence of scientists in the company.

Mr. Ricard testified again today of his work until 2010 on a harm reduction project involving 5 scientists. (Although he could not remember, despite repeated questions, in which scientific fields these subordinates were trained, he could remember that the goal to reduce emission levels of around 40 toxic constituents in cigarette smoke was based on scientific advice on what was achievable). Yet the president of the company had told the court that the scientific labs were dismantled "long before" her arrival in 2011.

Did Mr. Ricard think Mme Polet was wrong? We'll never know. Justice Riordan maintained an objection of Deborah Glendinning to the question.

Marketing to Youth

Mr. Ricard repeatedly re-affirmed his view that Imperial Tobacco never targetted its marketing to persons under 18. Yet ITL spokesperson, Michel Descoteaux had written to parliamentarian Russell Williams in 1998 (exhibit 65) to the effect that Imperial Tobacco had indeed targeted 16-19 year olds in the years when the "legal age" to purchase cigarettes was 16.

"Mr. Descoteaux never worked in marketing, never had anything to do with target markets," said Mr. Ricard dismissively.

Media plans 1981 - Exhibit 300

Yet those who worked in marketing had apparently seen young smokers as targets, according to documents filed earlier in court, such as plans for advertising expenditures (Exhibit 300).

Oh no, explained Mr. Ricard, this didn't suggest that they were planning to spend more advertising to young males -- merely that they were using Print Measurement Bureau statistics to ensure that they did not market in print media with less than an 85% adult readership. (Say what?!)

New documents were filed that gave Mr. Ricard further opportunities to explain away the repeated and consistent emphasis on a youthful image for its brands. Some of these were subject to rulings by Justice Riordan and also the Court of Appeal.

Imperial Tobacco went to some lengths to try to keep these 8 documents off the public record.  The four that are now available are marketing documents from the late 1980s (Exhibits 292-82 , 292 - 88, 292 - 88A) and a 600+ page summary of the holdings of the Imperial Tobacco marketing library (Exhibit 520).

Another marketing documents (Exhibit 292-87, a 1986 consumer research planning summary) sheds further light on the "Youth target" research which was much discussed during trial of the federal Tobacco Act. It turns out that the project was dreamed up with Labatt Breweries (the company to which ITL's former marketing head, Tony Kalhok, had moved three years earlier).

Currently, there exists no on-going research available to Imperial Tobacco that looks specifically at youth lifestyles' values and attitudes. In an attempt to fill this gap, we have joined forces with Labatt Breweries and Creative Research to develop a research methodology whose major objective would be to identify meaningful lifestyle parameters of young Canadians (what turns them on). 

It is not known whether this annual survey of children as young as 13 was ever successfully syndicated to any other companies, or whether it continued to "fill the gap" for the shared interest and budgets of beer and tobacco companies.

Tax evasion? surely not ... just a labelling issue.

A month from today, the Quebec Court of Appeal will consider a request from the three defendant tobacco companies for a review of Judge Riordan's decisions at the outset of the trial that he would allow questions on the participation of the companies in contraband cigarette sales. Until then, the trial has been treating the subject like thin ice.

Bruce Johnston tested that ice today, as he pushed on the credibility of Ed Ricard and Imperial Tobacco. He began by asking Mr. Ricard whether Imperial Tobacco voluntarily participated in the round-tripping of cigarettes through the duty-free market. Mr. Ricard said the company knew it was happening, but did not actively participate.

"Did you know that imperial tobacco pleaded guilty to the criminal charge?" Mr. Johnston asked. Dismissing the objection of Deborah Glendinning, the judge allowed the question.

"I am not aware that Imperial Tobacco pleaded guilty to a criminal charge, the witness replied. "My understanding it was a contravention of labeling product - it was improper labeling of products."

This was the cue for Bruce Johnston to present Imperial Tobacco's pleading (a document not yet made available by federal or provincial governments that negotiated the plea bargain with the company). The French text, flashed on the screens in the courtroom more quickly than it could be fully transcribed, admitted that between the first of January, 1989 and February 28, 1994 the company had possession of and had assisted individuals in selling tobacco that did not have a tax stamp and that this criminal offence under the Excise Tax act was admitted. (The plea was entered as an exhibit, but is under reserve and not available pending the Appeal Court decision). Not having a tax stamp is one way to creatively downplay the seriousness of tax evasion as a labelling infraction.

The ice was too thin, however, for Mr. Johnston to line up another shot at the credibility of Imperial Tobacco on this issue. He tried to introduce into the trial record comments from another Quebec Superior Court justice, André Denis (who ruled in 2002 that The industry was a willing accomplice of black-market cigarette smugglers), but Justice Riordan would have none of it. Bruce Johnston's plea that the ruling went to the credibility of the defendants fell on apparently deaf ears.

Whom to believe?

By the end of the day it felt like we had all attended a refresher course on many of the key trial issues where  the evidence doesn't add up. Somebody has to have it wrong.

Speaking of having it wrong, I misidentified the counsel representing the Canadian Tobacco Manufacturers Council in an early post yesterday. My apologies to Ms. Genevieve Gagnon and also to the other Ms. Gagnon.

Tomorrow, Wednesday August 29, Mr. Ricard will make what is expected to be his last appearance. In the afternoon, a former librarian for Imperial Tobacco, Ms. Rita Ayoun, will testify.


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 48: And we're back! ......

The summer break ended for the Quebec class action tobacco trials sharp at 9:30 on Monday, August 27th, 2012 when Justice Brian Riordan entered courtroom 17.09 for the first trial day in 9 weeks.

It didn't take long for the summer to recede into history, and for things to return to the 'normal' of this trial. Lawyers from six parties (the two class action plaintiffs, the three tobacco companies and the federal government) soon engaged in a fractious day of arguments and testimony.

There was barely a pause to acknowledge the passing earlier this month of one of the class representatives, Mr. Jean-Yves Blais.

Jean-Yves Blais: 1944-2012

Jean-Yves Blais outside the courtroom
March 12, 2012

When Mr. Blais attended the opening day of the trial, five months earlier, he seemed in poor physical and mental health, much older than his 67 years. He struggled to answer the questions the media gently put to him.

Supporting him at the court that day were his wife, Lise, and his son, Martin. They were in court again today, and Justice Riordan expressed his condolences directly to them.

Mr. Blais was one of an estimated 1,200 Quebecers who have died from lung cancer or respiratory disease since the trial last sat in June.

Inner workings exposed
The morning and the early part of the afternoon were spent going through an agenda of more than a dozen case management issues that required court time. Other less contentious changes that were made during the summer may become evident later.

It is said that the two things that are better to not see made are laws and sausages. Case management of a lawsuit of this length and magnitude might also qualify for such a viewer advisory.  Sausage meat is not as finely ground as many of the points made today!

Changes to the witness list

New on the witness list, if I heard the name correctly, is Mr. Leblond, a former leaf blender with Imperial Tobacco Canada. He is scheduled to appear later this week.

Dropped from the witness list is Mr. Roger Martin, who is currently the Dean of the Rotman School of Management, but who once was a consultant to Imperial Tobacco Canada. Instead of testifying, he prepared an affadavit on how his engagement with Imperial Tobacco was unrelated to the super-charged issue of removing scientific documents from the reach of litigants. In his affadavit, Mr. Martin explains that it  is entirely coincidental that Mr. Roger Ackman and Mr. Patrick Dunn chose to chronicle their dispute over destruction of documents at ITL during a communications training session. His account also explains why it is entirely normal that there is no other record to substantiate this version of events, and no other record of that meeting. An entertaining read.

A change in venue has been made for the questioning of Mr. Peter Gage, former RBH employee. Next week, lawyers will decamp to Victoria, British Columbia and will question him from there while those based in Montreal can  watch the proceedings on screen.

Disagreements about documents 

The plaintiffs have subpoenaed documents from the CTMC, and a motion to quash this subpoena will be argued next Tuesday. A former employee of  the CTMC (Ms. Takacs?) will appear in connection with that motion. This arrangement was arrived at despite exuberant industry protests decrying a "fishing expedition" and "discovery of a non-party in the middle of the trial." Watching these discussions but keeping quiet was CTMC's counsel (and new face to the trial), Ms. Genevieve Gagnon from the lawfirm Julie Chenette

Other disputed documents which have been newly requested by the plaintiffs include records from Imperial Tobacco's defence of a claim in Ontario by the estate of Miriana Spasic, who died of lung cancer in 1998.

The federal government asked, and received, an extension on the time available to them before being required to file case material. This was granted under the shadow of a pending Court of Appeal ruling that might remove the federal government from the case altogether. Before granting their request, Justice Riordan teased the federal lawyers with a proposal that the government volunteer to provide the information to the industry irrespective of the eventual Court of Appeal in return for a longer extension.

The Macdonald Stewart Foundation documents

The plaintiffs indicated that visits had been made to the archives of the Macdonald-Steawart Foundation, and there was a brief discussion on how documents from this archive could be integrated into the trial record.

1964 Handwritten letter
between company presidents
Macdonald-Stewart collection 

The Macdonald tobacco company was a privately held business before it was sold to RJ-Reynolds in 1974 by David Stewart. (The company operated as RJR-Macdonald until it was sold to Japan Tobacco, and has been known as JTI-Macdonald since 1999). Some of the business material that was in the personal collection of the Stewart family was transferred to the foundation that was created with the proceeds of the sale.

In addition to an excellent collection of cigar indians and cigarette paraphenalia, the archives also include documents that shed some light on the relationship between the companies during the years when the health harms of smoking were becoming widely recognized. Because these documents are not under the control of any of the tobacco companies (some of the letters we have seen in the collection were sent to the home addresses of the company managers, thus escaping company files) they would not have been exchanged as part of the 'discovery process'.

Ed Ricard returns - again

By the afternoon, the case management discussion wound down and Ed Ricard, former marketing strategist to Imperial Tobacco and the official company witness, was recalled to the stand.

From his first questions, Bruce Johnston swung hard at the witness. His goal was clearly to attack the credibility of the company's spokesperson at the trial.

Mr. Johnston pointed out several discrepancies between what Mr. Ricard had said over the years of providing information through deposition or testimony and the court record from other witnesses or documents. He repeatedly invited Mr. Ricard to change his testimony - but not once was this invitation accepted. "I am not going to change my testimony," Mr. Ricard repeated again and again. "I stand by exactly what was said."

Mr. Ricard's view of events sounded like a hard story to stick to, and with Bruce Johnston 'sticking it to him,' he soon began to look as battered as his testimony.

The first issue addressed was the putative existence of an agreement between the federal government and the industry that constrained the company's ability to provide truthful information to its clients regarding health consequences of smoking. Mr. Ricard had testified that he recalled clearly reading that such an understanding existed. A request for documentation related to this claim resulted in more than 60 documents being produced by Imperial Tobacco (Mr. Ricard did not know how those documents were selected). When pressed to point to the document among those that was the source of his belief about an agreement, Mr. Ricard read a prepared statement into the record.

His taut text sounded so different than his previous testimony that the impression that it was written by someone else was instantly set. He said that the voluntary code agreement to not tinker with the health warning was "consistent with his understanding" that the government did not want the industry to be more forthright with its customers about the dangers of smoking. The delivery of this crafted message made him look even more like a man paid to take the fall.

Mr. Johnston highlighted the implausibility of such an agreement from several angles. Would not the president of the company or the head of public relations know of its existence?  But even when told neither Mr. Jean Louis Mercier or Mr. Descoteaux did not maintain that such an agreement existed, Mr. Ricard did not bend. "It does not change my testimony."

Mr. Johnston then turned to correspondence in which the department of Health was asking the industry to provide more health information. In particular, he focused on the response from the CTMC to a 1977 request for more educational messages, as Sweden in which the Paul Paré (who was both CTMC president and president of Imperial Tobacco) refused the request by saying that the companies "cannot be reasonably expected to advertise or promote the concept that people should not smoke, or that smoking is bad for you."

"Mr. Paré wrote what he wrote," said Mr. Ricard today. "It does not change my testimony."

Mr. Johnston then turned to other topics in which the testimony of Imperial Tobacco's main witness was inconsistent with documents or with the views of other witnesses.  Did the company ever market to 16 year olds? (Mr. Ricard said no, Mr. Descoteaux said yes). Did it suggested that some cigarettes were less harmful? (Mr. Ricard said lower tar cigarettes were less harmful, ITL President Marie Polet said that it was very wrong to suggest they were safer).

By the end of the afternoon, Ed Ricard looked like a punching bag. He took the pounding, he swung with the blows and offered no real defence. Yet by day's end he had still not budged.

Mr. Ricard will return to testify over the next two days (Tuesday and Wednesday).  On Thursday, Mr. Leblond is scheduled to testify for the first time.

Summer rulings

During the summer recess, three rulings were issued in this case, none of them favourable to the tobacco companies. In late June, Justice Riordan ruled on two issues that were argued just before the summer recess. In one June 28th ruling, he rejected the tobacco companies' argument that they should not have to provide particulars on their finances to the plaintiffs (although he imposed confidential treatment of these documents). In another ruling on the same day, he refused most of the requirements Imperial Tobacco was seeking to have imposed on the federal government (although he imposed deadlines on the government).

From the Court of Appeal last week, Justice Allan Hilton refused Imperial Tobacco leave to appeal the June 5th decision of Justice Riordan to not put 8 documents under confidential seal.

More rulings are to come ... this Friday the Court of Appeal will hear requests from two of the companies regarding the June 28th ruling on financial records. On the same day, the federal government will request leave to appeal Justice Riordan's decision to disallow some of the expert opinion of David Burns.

Day 29 - It's a question of privilege

There was an early start this morning to the Montreal class action suits against Canada's three large tobacco companies.

The schedule change was to permit plaintiff lawyer Philippe Trudel to file a number of documents related to document destruction in anticipation of tomorrow's hearing with ITL's former librarian, Ms. Carol Bizzarro. (They are Exhibits 319 A B C D E F G H I J K). This was accomplished with a remarkable efficiency, thanks to Deborah Glendinning's offer to apply a blanket objection to each of the documents. ("Much appreciated," said Justice Riordan).

By 9:50, however, it was business as usual...

When Contraband is not Smuggling (and vice versa)

The witness had not even been sworn in before the contentious issue of smuggling was raised again. The Court of Appeal has scheduled a hearing this fall to hear why Justice Riordan's openness to evidence on smuggling should or should not be appealed.

When Philippe Trudel, for the plaintiffs, sought to introduce a recent Imperial Tobacco document on contraband , Deborah Glendinning, for Imperial Tobacco, was quick on her feet. Even though the document, What's wrong with this picture is available on ITL's web-site, she did not want it entered into the trial record.  "This document post-dates the commencement of this suit by ten years," she told the judge. "Besides which, the claimants are confusing the issue -- you ruled on smuggling, but not on contraband. Contraband and smuggling are two different things."

Justice Riordan was not the only one that looked confused by this distinction. "You had better explain that to me."  Deborah Glendinning elaborated: "Smuggling is when the defendants put a product on the market that found its way back," she said. "Contraband is a product that is not made by the defendants."

"They are separate products?!" Justice Riordan looked doubtful. "Is that a generally accepted distinction?"

Ms. Glendinning stood by her explanation -- but her colleagues on the defence team did not exactly back her up. When Justice Riordan asked Guy Pratte point-blank "Do you agree with the definitions we were given?" the JTI-Macdonald lawyer demurred.  "I won't speak to that." Simon Potter did some fancy footwork to get his colleague out of the corner she had painted herself into, while still maintaining the objection to the 'contraband' document. It was a chronological distinction, he said. Smuggling was used to describe 'an historic period' while contraband refers to the more recent experience.

Be that as it may, as Philippe Trudel pointed out, in their guilty plea under the Excise Act, the companies had admitted to contraband activities.

Justice Riordan looked keen to move on. A "reserve" label was put on the document and later in the day, Justice Riordan decided to put all questions (and answers) on contraband and smuggling "under reserve".

The continuously uncurious Ed Ricard 

During the rest of the morning, plaintiff lawyers Philippe Trudel and Bruce Johnston tried to pull information out of Imperial Tobacco's former marketing strategist (and official witness), Ed Ricard. Between the documents provided and occasional answers, some insights into the company's operations were provided.

Some noteworthy exhibits show the company's efforts to stay ahead of social and regulatory changes (Exhibit 323 and 326) and give a detailed history of Imperial Tobacco's marketing efforts and strategies (Exhibit 324 and 327).

After the morning break the plaintiff team rotated pitchers. Bruce Johnston's steady flow of hard questions gave the hearing a new intensity.

He asked about a memo written by Ed Ricard in 1991, in which he forecast that tax increases would result in an increase in duty free sales and exports. (Exhibit 270). Did Mr. Ricard knew when he wrote this memo that the duty free and export cigarettes would be smuggled back to Canada? After a few indirect replies, Mr. Ricard acknowledged "at some point we knew that it was finding its way back and being sold here."  

The missing agreement with Health Canada 

With the clock moving towards the noon-time break and another witness scheduled for the afternoon, Mr. Johnston introduced the question of an agreement between Health Canada and the tobacco companies.

During his pre-trial examination (June 18, 2008) Mr. Ricard had been asked whether there was anything to prevent the company from providing information to consumers on health risks, and had answered:

A. I think there was -- there was an understanding that goes back to the late '50s, early '60s with Health Canada that the tobacco companies would not talk about the health effects of their products, and that Health Canada would take the role, duty and responsibility to do so. ... [Health Canada] said: "Imperial Tobacco, you are not going to say anything about all these risks." ... They said: "You are not going to talk about the health aspects or potential consequences of the product. That's the duty of Health Canada to inform Canadians."

Q. Was this in writing, by any chance?  
A. I have seen it in writing, yes, and I have seen it in statements from Health Canada.  

In response to a request for documents related to such an agreement, Imperial Tobacco provided not one but 62 documents. Impossible to know whether they were the ones Mr. Ricard had in mind that day, as he did not review them either before they were sent from Imperial Tobacco to the plaintiff lawyers, nor when the plaintiff lawyers provided them to him in anticipation of his appearance at the trial.

Before he returns (at a yet unspecified date) Mr. Ricard has undertaken to look at all of the 62 documents and identify any that he might have been referring to when he said he had seen a written agreement.

At 12:25 Mr. Ricard's testimony was suspended.

Facts, Opinions, and Privilege. 

David H. Flaherty may not be a household name, but he is a man with a distinguished career. He is a professor emeritus of history and law at the University of Western Ontario. He was the first Information and Privacy Commissioner in B.C. appointed through a merit-based process (and  not by appointment), a position he held from 1993 to 1999. He is an older brother to federal finance minister, Jim Flaherty.

Although Mr. Flaherty spent almost two decades working discretely for tobacco companies, this activity does not appear on his curriculum vitae. He is an expert witness in this case for Imperial Tobacco, but had been requested to appear today as a fact witness.

The plaintiffs wanted to question him about his involvement in the "Four Season Historical Awareness Project" and to introduce his work on that project from 1988 and 1989 to this trial. (References were made to additional documents that he had been advised by Imperial Tobacco lawyers to not bring to Montreal.)

Mr. Flaherty's testimony took less than an hour. In response to questions posed by André Lespérance, he  told of being approached by three separate law firms, each representing a tobacco company. They were looking for an historian, he explained. At first he wasn't sure what the purpose of the task was, but later realized that it was probably for litigation purposes. He was never asked to keep the work confidential.

For 25 years, with the support of research associates and students, he traced "what smokers were told about smoking over time." He said the only tobacco trial he had been asked to prepare specific material for was the suit filed in Vancouver in 1988 by Roger Perron, who had lost both his legs to Buerger's disease. (The case was dismissed because the limitation period had been exceeded, but not before RJR-Macdonald had developed a litigation strategy that recommended that "David Flaherty is an eastern Canadian too suggestive of a big effort".)

Only once in 25 years, he said, had he had direct contact with the tobacco industry. Before he could provide details on what happened at that meeting, objections were flying across the court room. Quickly, the real issue of the day was before Justice Riordan: could David Flaherty's work on the Four Season Project be admitted to the trial, or was it subject to privilege?

Mr. Flaherty was sent home, and will likely not be seen until Imperial Tobacco calls him to provide his expert testimony.

Litigation privilege or solicitor-client privilege?

Plaintiff lawyer André Lespérance did not suggest that David Flaherty's report was never privileged.  "It is clear that the companies gave him a mandate to prepare for litigation," he said. In comparing the 1988 version with the opinion presented in this trial, he found numerous similarities. But the litigation privilege that might normally apply to this document no longer applies, he said. "Because the document is on the web-site, privilege has been waived."

Suzanne Coté had a different view. Mr. Flaherty's work was not produced in connection with this or other litigation, she said, but under the category of solicitor-client privilege. "The solicitor-client privilege never ends," she said dramatically "the lawyers take it to their coffins."  The fact that the documents in question were compelled evidence in other trials did not mean that the privilege was lost, nor that other companies could waive privilege for Imperial Tobacco.

Further submissions to support her views were offered by Guy Pratte for JTI-Macdonald and Simon Potter for Rothmans, Benson and Hedges.

David Flaherty, had he been allowed to stay for the discussion, might have enjoyed the irony of the moment. During his tenure as Information Commissioner for British Columbia he made frequent assessments on the use/abuse of solicitor-client privilege. Now it was his work that was under discussion.

He might also have found it ironic that the plaintiffs were arguing to have the work of  a defendant's expert  admitted and that the defendant's were arguing against a similar report to their commissioned opinion being on the trial record.

André Lespérance's closing comments clarified this seeming oddity: Mr. Flaherty's work over the past 25 years showed that Imperial Tobacco was in preparation mode for lawsuits.

Yesterday, a list of Imperial Tobacco's undertakings had been filed (Exhibit 297-12). In them, Imperial Tobacco had denied that its change in policy on document retention (made around the same time as the Four Season Project) had any relationship to litigation concerns. The company was preparing for litigation at that time, suggested Mr. Lespérance. "The Flaherty report shows that there was an intention or expectation of litigation."

On that note, Justice Riordan gathered his materials, and the room stood as he left the court.

Day 28 - Do they not like Mondays?

For information on accessing documents, see note at the end of this post 

Maybe it was Mother's Day.  Maybe it was hay fever. For whatever reason, the trial of the  Montreal class action suits against tobacco companies opened its 8th week on a cranky note.

The day bounced between querulous interventions from certain lawyers ("How are we supposed to keep up with this!  It's just not fair!") and unhelpful responses from a certain witness ("I never read this document before, and as such did not review it in preparation.") With contentious issues on the horizon, the rest of the week may be as fractious.

New exhibits, few answers

Today was the third day that former Imperial Tobacco Limited marketing strategist, Ed Ricard, testified. The term 'former' to describe his relationship with Imperial Tobacco might not be fully descriptive. In his answers, he aligns himself with the interests of a company where he worked for almost 3 decades, and where his father once held the most senior positions. 

Mr. Ricard was given lots of opportunity to provide insight into the way that Imperial Tobacco understood its market, designed its marketing strategies, and viewed its customers, as he was questioned by plaintiff lawyer, Philippe Trudel, on marketing documents that spanned more than 20 years. In the absence of much explanation from Mr. Ricard, the new exhibits were left to speak for themselves.

Exhibit 304. This 1978 research project on 16 and 17 year old high school students in four Quebec cities is titled Etude d'exploration qualitative du Marché des jeunes fumeurs quebecois. It is another in the CRY series (CRY6).  It sought to learn more about young people's first smoking experiences (When? Why? How? With whom? Under what influence?), their attitudes and awareness of health issues and their views on various tobacco ad campaigns.

Exhibit 306:  (CRY10) This 1982 study bills itself as part of a "larger effort to better know and understand the market for young smokers."  (Title: Les jeunes face a la cigarette: Exploration qualitative de leurs comportemetns et de leurs attititudes). Participants were 16 to 24 years of age, and included smokers and former smokers.

Exhibit 309. (CRY27-C) This extract from the 1987 Youth Target  provides tables to the custom questions Imperial Tobacco commissioned. Young persons' smoking behaviour, demographics, psycho-graphics, attitudes towards smoking and interests were plotted against one another to give a profile of which sponsored events appealed most to those most likely to smoke.

Exhibit 311. This financial update shows that after the federal government reduced taxes in 1994, Imperial Tobacco's profits increased by 30%.  Increased smoking rates were credited with some of the additional millions.

Project Crawford & Fresh Lights

Exhibit 314.  A 16 page handwritten note from 1983, this one exchanged among people working to find a way to solve "what we have defined as 'side effects' to cigarette smoking." The ITL team is sharing a Eureka! moment as they look at a rosy road ahead through the "key-hole" of lights:
Our marketing opportunity is to advance along the time line of the long run evolution of plain end to filter to king to light and lighter. 

Exhibit 315.  Today, Ed Ricard gave reluctant answers to questions about his views regarding low tar cigarettes being safer. In this memo he wrote in 1989 on very low-tar cigarettes, however, he eloquently discussed how these products had allowed smokers concerned about health risks or under social pressures to continue to smoke. (When asked today what he meant when he called smokers dissonant, he coined a new meaning to a term more usually used to describe someone who smokes but is unhappy about it. Today he said that a "dissonant smoker" is someone who does not have a firm  brand preference.

Exhibit 318.  In 1995, Project Renaissance was designed to find out more about consumer preferences for reduced risk products. It was seen as a follow on to Project Viking and also was linked to Project Day.  This exhibit suggests there was also a Project Month!

Arguments, arguments, arguments!

Last Friday many trooped across the street to the hearing at the Court of Appeal on a request to review Justice Riordan's May 2nd ruling. The court made no decision, and the plaintiffs continue to be able to enter  exhibits on the trial record without having to restore to life the dead authors or recipients in order for the documents to be authenticated.

Other documents continue to be the subject of differing views on admissbility. Today, brief discussions were held on three concerns held by the tobacco companies on certain documents - parliamentary privilege, solicitor client privilege and confidentiality.

A secret discussion about secrets?

Time has been set aside this Thursday afternoon for a discussion about Imperial Tobacco's request for 12 documents to be sealed. (Deborah Glendinning rescinded last week's request for confidentiality for documents that are on the public record as a result of the Tobacco Act trial. Everyone kept a poker face.)

Justice Riordan has clearly been preparing to rule on the issue of confidentiality. He reported that some of his weekend had been spent reviewing a Supreme Court of Canada ruling on the tension between commercial confidentiality and public interest (the case involved the Sierra Club, the federal government and Atomic Energy of Canada Ltd.).

Justice Riordan hinted there was a solution he would like to be considered, i.e. the development of document summaries which protected confidential information while allowing the 'essential part' to be made public. Any hopes he might have had that such an approach might free him from having to write another judgement during the scheduled break in hearings next week (let alone free the Court of Appeal from the seemingly inevitable appeal of his judgements) would have been dashed by André Lespérance's response.

Mr. Lespérance explained that one of the documents in question involves survey data Imperial Tobacco collected over decades, and has about 30,000 pages and that it is not only the size that makes this document hard to summarize in such a way.  "The CMA market research is difficult and will need to be argued on the principle," he said. "What interests us is quitting and starters -- we will be arguing that it is not confidential information under the meaning of the Sierra Club decision."

Justice Riordan asked whether Imperial Tobacco would be wanting their motion to seal documents to be heard in camera, and was told that such a request is forthcoming.  "If the content comes out in discussion, then the whole issue is moot," explained Deborah Glendinning. Who knows? Maybe the discussion about whether to have an secret in camera session to discuss secret confidential documents will also be held in behind closed doors....

Parliamentary Privilege

Another issue that has not been resolved is whether or not the trial will receive as evidence records of parliamentary discussions, including the testimony given by Jean-Louis Mercier to the Commons legislative committee.  Today, Philippe Trudel tried to introduce a document the Canadian Advertisers Association had provided to parliament, but after objections held it back until the issue is resolved. No date has yet been set to discuss this aspect. (Parliamentary records were introduced as evidence in the constitutional challenge to the Tobacco Products Control Act).

Solicitor Client Privilege 

The tobacco companies have hired historian David Flaherty as an expert witness, but when he appears tomorrow afternoon it will be as a fact witness for the plaintiffs.

Today, it was let drop that the topic of questioning will be the mysterious "Four Season Project" about which the plaintiffs lawyers have asked each witness (none have yet admitted any familiarity). It appears from documents on the Legacy web-site that in 1988, David Flaherty was engaged to measure and document awareness of health issues related to smoking, as part of a Canadian industry-wide effort that was called the Four Season Project. In 1989, David Flaherty was again hired to use such information to help fight Canada's first ever (but ultimately  unsuccessful) lawsuit against tobacco companies.

Deborah Glendinning gave notice that she thinks that solicitor-client privilege should apply to these documents. (You might have thought that privilege was waived once the release of multiple copies was negotiated in out-of-court settlements, but there you go.)

Line up for the rest of the week is as follows:  Tomorrow morning is Ed Ricard's last appearance this week, although he is expected to be called back later. Tomorrow afternoon, David Flaherty will appear.  Wednesday, a librarian from Imperial Tobacco, Carol Bizzarro, will appear. On Thursday afternoon, arguments on the issue of confidentiality will be heard, and on Thursday morning the filmed deposition of BAT lawyer John Meltzer may be aired.

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 27 - Imperial Tobacco tries to stem the flood of documents

For information on accessing documents, see note at the end of this post

The class action suits against tobacco companies that are now being heard in Montreal were launched more than 13 years ago. Although the process works at such a glacial pace, it turns out it can also turn on a dime. As the hearing rolled towards the weekend, new play-books were pulled out.

Opening the door

Last week, you may recall, Justice Riordan ruled that the refusal of Imperial Tobacco to acknowledge the genuineness of some of its documents was improper.  One of the fall-outs of that decision is that particular documents that Imperial Tobacco was trying to protect were made public. (See the post from this Monday for some particularly HOT documents!)

Another consequence is that it became generally easier for the plaintiffs to introduce documents, and to make them part of the court record (and available to onlookers like you and I) even though the value of these documents as "proof" was not yet established.

Trying to close the door

Yesterday (Wednesday), word was received that Imperial Tobacco had scheduled a hearing for tomorrow (Friday) at the Court of Appeal, with another attempt to get an interlocutory decision of Justice Riordan struck down. (This will be the third airing in three weeks of a request to appeal his mid-trial decisions.)

Perhaps to guard against an unfavourable decision tomorrow, the plaintiffs used some court time today to put on the trial record a number of HOT documents. (Some are mentioned at the bottom of this post).

Drawing the blinds

Imperial Tobacco is using another method to protect itself from document disclosure. They have claimed confidentiality over a number of marketing documents - including some that are 30 years old (Sorry I can't give you too much more information about these documents. I can't see them - they're under seal!).

The current witness, Mr. Ed Ricard, was until recently in charge of strategy planning and insights for Imperial Tobacco. If the company succeeds in putting his department's work under a confidentiality seal, his contribution to the "facts" the plaintiffs are trying to establish will be severely limited.

To point out the insincerity of the claim of confidentiality, plaintiff lawyer Philippe Trudel showed Mr. Ricard a number of marketing strategies from other years, and asked him whether they too should be considered "confidential."  His answer, unwaveringly, was yes.  So these documents were also entered under a confidentiality seal.

These documents I can tell you more about. They have been around for a decade, having became public as a result of the constitutional challenge to the federal Tobacco Act.  During that trial, they were labelled exhibit P-50, AG-51, and AG-52 and are now available on the Legacy site).

The imbalance of institutional memory in the justice system became apparent at this point. Justice Riordan seemed unfamiliar with Justice Denis' decision on the Tobacco Act, and uniformed of developments in that trial. So the irony of his dutifully placing under seal documents that are now freely available was lost on him. By contrast, the majority of lawyers for the industry and government have already engaged in major court battles over these documents, and may well be able to recite them by heart.

The motion on confidentiality will be discussed next Thursday afternoon (May 17th). The expectation is that Justice Riordan will rule on it on May 21st, when the hearings on this trial resume after a 10 day break.

The un-curious mind of Mr. Ricard

Mr. Ricard is truly un-curious man.  Yesterday, he was questioned on the undertakings that had been made under his name when he was the designated witness during the discovery period. (The undertakings were introduced today as Exhibit 297 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 13A and 13B). The court was told that he had not read the information that was provided on his behalf -- even when it involved a question regarding his own personal recollections. He was not curious enough to follow up on any of the questions put to him.

Nor was he curious enough to read the documents that had been provided to him by the plaintiffs to aid him in preparing for his testimony as a fact witness at this trial.  He told the court that he had looked at the documents to see which ones he had seen before, but did not read any he was not familiar with.  (It was almost as though he expected that Justice Riordan would have agreed with Imperial Tobacco's lawyers that these documents would not be admissible and therefore he did not have to understand them).

But mostly he seemed stunningly un-curious about what happened in the marketing department at Imperial Tobacco for the 28 years he worked there. While he admitted to knowing the names of his colleagues, he was rarely able to provide any details on any of them, and had little recollection of any of the work done over the period. Other than being able to recognize information as proprietary and confidential, remembering that there was an agreement with Health Canada to not communicate with smokers about the dangers of cigarettes, and to know that Imperial Tobacco adhered to the voluntary code at all times, he had very little recall of the media strategies, media buys, or market analysis done around him.

Perhaps he played a lot of golf.

The curious story between Dr. Dunn and Mr. Ackman 

The story of the squabble between Imperial Tobacco's lawyers and Imperial Tobacco's scientists has been told in pointillistic form, as documents have appeared over the course of the past dozen years. Two additional documents were made public today that tell a very human - even moving - story of the struggle felt by Dr. Patrick Dunn.

Mr. Mercier testified earlier in the trial that Patrick Dunn was given the authority to decide which documents would be kept, and which destroyed.  What he didn't say was that Dr. Dunn was told to make that decision align with the lawyer's wishes - nor did he say how much it grieved Dr. Dunn to do so.

The disagreement between Roger Ackman and Patrick Dunn was at such an impasse that it appears that Roger Martin was called to mediate between them.  Like a couple in marriage counselling, the two men were told to make a record of their inner thoughts during their discussion. Reading this "he said/he said" story is a reminder of the limited power of middle managers in large organizations.

Patrick Dunn pours out his feelings on paper: (Exhibit 102)

These lawyers are all over place. They do not want to even understand the problem they are  causing me. They think that I am just trying to be awkward.

The lawyers do not want to make the decision as originally agreed they want to make me give them the decision they want.

He understands that what he is being asked to do has legal ramifications

He thinks that lawyers have a monopoly on professional standards and they are the law itself. The punch line to all this bullshit is that I am the one on the stand in court, not the lawyers.

Dr. Dunn was right to foresee a day when this would all be aired in court. Ironically, however, he died before he was asked to testify -- and it is now Roger Ackman who gets to present.  Mr. Ackman's mirror account is available as Exhibit 102-B

Did I mention HOT documents?  The Dunn/Ackman exchange is enough for today. Over the weekend, some highlights from exhibits this week.  I promise.


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.