British American Tobacco is continuing its two year fight against producing a document that is thought to describe the company's efforts to destroy incriminating records while pretending to preserve them. The so called Foyle memorandum was written in 1990 by Andrew Foyle, a partner in a British law firm representing the tobacco company.
“The document was quoted in part in court in Australia but has never been made public,” said Richard Daynard, a law professor and chairman of the Tobacco Products Liability Project at Northeastern University in Boston.
Although British American Tobacco has less than 1% of the United States tobacco market, it is included in a lawsuit initiated in 1999 by the US Department of Justice against tobacco companies under the Racketeer Influenced and Corrupt Organizations Act, know as RICO.
The lawsuit aims to force tobacco companies to disgorge $280bn (£154bn, €232bn) of revenue from sales to smokers under age 21 between 1971 and 2000. According to court documents, “The government's amended complaint describes a four decade long conspiracy, dating from at least 1953, to intentionally and wilfully deceive and mislead the American public about, among other things, the harmful nature of tobacco products, the addictive nature of nicotine, and the possibility of manufacturing safer and less addictive tobacco products.”
The company was ordered to produce the Foyle memorandum as part of the discovery process but refused. Judge Gladys Kessler of the US District Court for the District of Columbia fined the company $25 000 a day. The company appealed twice, claiming that the document was not in its control and that it should not be required to turn over documents relating to products made and sold outside the United States.
The Washington Post [June 2 2002, page A26] reported that the memorandum is a potentially important piece of evidence for US government lawyers. It quoted Judge Kessler as writing that the company's actions “in the course of its dogged fight against the release of the Foyle memorandum constitute inexcusable conduct ... It was only pure accident ... that the government even learned of the existence of the Foyle memorandum.”
Judge Kessler wrote, “The government argues that global coordination was essential for many reasons,” including the concern that “any adverse action or result in litigation, regulation, or legislation anywhere else in the world could lead to a ‘domino effect’ in other countries.”
British American Tobacco moved for summary judgment on the grounds that the government cannot establish the company's liability under RICO. Summary judgment would have thrown the case out of court. Instead, in late May Judge Kessler denied the motion and again ordered the company to produce the memorandum.
British American Tobacco immediately appealed for a stay of Judge Kessler's order. Professor Daynard told the BMJ that the stay had been granted, but he expected the issue to be resolved in the next few weeks and the trial to begin as scheduled on September 13.