Once-Secret Files May Torch Tobacco Defense

Minnesota Attorney General Hubert Humphrey III had referred to the documents as "smoking howitzers" or "crown jewels of the conspiracy."

And last week, after a bitter and protracted battle, Mr. Humphrey was finally able to introduce them as evidence in Minnesota's $1.7 billion lawsuit to recover health-care costs from treating smoking-related illnesses in the state.

They are 39,000 tobacco-industry documents once protected by attorney-client privilege. Detailing the industry's legal strategies, the documents could severely damage the industry's case here and tip the scales in ensuing states' cases, experts say. And as the first few dozen of the hotly contested papers were entered into evidence last week, their potential impact is beginning to become apparent.

"These are definitely howitzers," says Bill Tilton, a St. Paul, Minn., trial attorney who was among a host of attorneys involved in the controversial, document-ridden Dalkon Shield litigation against the A.H. Robins Co. in the early 1980s. "They speak directly to the health-fraud charges brought by the plaintiffs. These documents show lawyers' direct involvement in a plan to hide information."

The 39,000 documents include scientific research and marketing reports, information about underage smokers, and related issues. The approximately two dozen documents presented in court last week included:

* A 1969 R.J. Reynolds legal memorandum recommending the "removal" of some research files. It states, "Once it becomes clear that such action is necessary for the successful defense of our present and future suits, we will promptly remove all such reports from our files."

* A 1966 Brown & Williamson memorandum from general counsel Addison Yeaman described his concern about the way animal testing was being conducted at the Harrogate laboratory in England. Wrote Mr. Yeaman, "We would hope to be afforded the opportunity of consulting with the people on your side concerning the way Harrogate's work is presented, admittedly with the hope of 'slanting' the report."

* In a 1980 memorandum, Philip Morris scientist William Dunn wrote, "any action on our part, such as research on the psychopharmacology of nicotine, which implicitly or explicitly treats nicotine as a drug could well be viewed as a tacit acknowledgement that nicotine is a drug. Our attorneys, however, will likely continue to insist upon a clandestine effort in order to keep nicotine the drug in low profile."

* In another Brown & Williamson memo, written in 1979, attorney J.K. Wells discusses "alternatives for handling ... scientific reports in a way that would afford some degree of protection against [the litigation process of] discovery."

The spin surrounding the importance of these documents has been dizzying.

Minnesota Blue Cross and Blue Shield, which is bringing the suit along with the State of Minnesota, sees the documents' release as a triumph.

"The iceberg has hit the Big Tobacco ship," declared a Blue Cross/Blue Shield press statement.

Not surprising, however, the defense team vigorously disagrees with its opponents' assessments. Although tobacco attorneys went all the way to the US Supreme Court in an effort to keep the documents private, Philip Morris associate general counsel Greg Little declared that the documents "won't help" the plaintiffs' case.

In addition, the defense team says the decision to release the documents is a blow against corporate America's ability to communicate privately with its attorneys. It's a "chilling message to any lawyer representing a politically unpopular client," adds Mr. Little.

For his part, St. Paul trial attorney Tilton says some of the documents released last week, such as a 1993 letter from Brown & Williamson attorney Kendrick Wells discussing how then-CEO Thomas Sandefur should address the connection between smoking and disease, are "merely examples of good lawyering."

But he adds, "A lawyer's obligation is to disclose relevant information. If somebody wanted to pursue it, there are grounds here for disbarment or criminal charges against the lawyers involved in these correspondences."