US Tobacco Ruling: "They suppressed research, they destroyed documents"
US Tobacco Ruling: "They suppressed research, they destroyed documents"
August 18th, 2006: US District Court Judge, Gladys Kessler, slams 'Big Tobacco' in a ruling that will be appealed, but which highlights that records management is also about the records that can't be found.
US District Court judge, Gladys Kessler pulled no punches in her 1,653-page ruling against Big Tobacco. "Over the course of more than 50 years, defendants lied, misrepresented, and deceived the American public, including smokers and the young people they avidly sought as 'replacement smokers,' about the devastating health effects of smoking and environmental tobacco smoke.
The ruling was made in regard to a US Department of Justice case against Philip Morris USA, (its parent, Altria Group), RJ Reynolds Tobacco, Brown & Williamson Tobacco, British American Tobacco, Lorillard Tobacco, Liggett Group, Counsel for Tobacco Research-USA, and the now defunct Tobacco Institute.
On May 30th this year, NSW Judge Jim Curtis ordered, British American Tobacco (BATAS), to hand over documents relating to records held by BATAS and by the Tobacco Institute of Australia. This was never followed to its logical conclusion, as the relevant case has been 'agreed' out of court.
The case was being heard before the New South Wales Dust Diseases Tribunal's Judge Jim Curtis. And here, in his own words, are some of the reasons that Judge Curtis wanted BATAS to tell the court - and hence the world - what had happened to documents:
"In the absence. of evidence from BATAS, I find it difficult to understand how it was thought necessary that three English lawyers attend a scientific library to implement a Document Retention Policy which only permitted destruction of documents which were not "valuable business documents". If BATAS was not selectively destroying scientific documents prejudicial to its position in future litigation, how is it that lawyers rather than scientists were assigned to judge the value of research material? This may be explained at the trial."
"I am persuaded on the present state of the evidence that BATAS in 1985 drafted or adopted the Document Retention Policy for the purpose of a fraud within the meaning of s125 of the Evidence Act…"
Judge Kessler's judgement will not resurrect the Mowbray (nor McCabe) case - nor will it result in any further penalty to the companies involved, as she has no powers to invoke any due to previous appeal court decisions. What it will do, however, is present the fact that even though records can indeed be destroyed, lost or deliberately hidden from scrutiny, does not mean that they fall outside the scope of the law.