I helped tobacco firm destroy documents: lawyer

By William Birnbauer
September 26, 2004


A senior American lawyer has confirmed he helped an Australian tobacco company in preventing sensitive company documents being uncovered in smoking and health litigation.

Tobacco industry lawyer Robert Northrip outlined his activities while being questioned by lawyers for the United States Department of Justice in the lead-up to one of the biggest civil suits filed in the United States.

Mr Northrip agreed with Victorian Supreme Court judge Geoffrey Eames that British American Tobacco's Australian subsidiary destroyed thousands of sensitive documents.

Questioned by Department of Justice lawyers, he said the destroyed documents included those rated by British American Tobacco (BAT) as "knockout blow" documents for plaintiffs suing the company.

Justice Eames in April 2002 struck out BAT's defence in a case involving lung cancer victim Rolah McCabe, who died later that year, after finding she could not get a fair trial because documents had been destroyed.

Eight months later, in a decision criticised by the State Government, lawyers and anti-smoking groups, the Victorian Court of Appeal quashed findings against BAT. The High Court refused leave to appeal that decision.

The US Department of Justice asserts that the world's biggest tobacco companies engaged in "parallel efforts to destroy and conceal documents and information" about smoking's health impacts and avoiding or limiting litigation liability.

The department's case, which began this week after five years of preparation, seeks to forfeit $400 billion of "ill-gotten gains" from "big tobacco", alleging a 50-year fraud conspiracy during which the companies lied about the health risks of smoking, manipulated nicotine amounts and directed marketing at children. Analysts believe the action could bankrupt tobacco companies, which have strongly denied the claims.

Robert Northrip is a partner with law firm Shook, Hardy & Bacon and has represented tobacco companies since the early 1970s. He is expected to appear soon before US hearings as an adverse witness.

Under questioning, he said his Kansas city firm took over the responsibility for British American Tobacco's interests in Australia in the mid-1990s. W.D. & H.O. Wills, an Australian tobacco company, was part of the huge BAT conglomerate.

Mr Northrip agreed that part of Shook, Hardy & Bacon's role involved "trying to prevent BAT Group smoking and health documents from becoming public in Australia", to the possible detriment of the company's subsidiaries in the United States.

"We also advised Wills in relation to document management to ensure that damaging documents would not be discovered in litigation in Australia or elsewhere," he said.

Shook, Hardy & Bacon took over responsibility for Australia from David Schechter, a lawyer with BAT (United States), which owns tobacco manufacturer Brown & Williamson.

Mr Northrip said the BAT Group was concerned that if smoking and health documents emerged in litigation anywhere in the world they could harm the company in the public eye and in litigation, particularly in the US.

He said Mr Schechter made several trips to Australia and worked with W.D. & H.O. Wills on its document retention policy "to reduce the likelihood of unhelpful documents being written or, if they were written, to make it less likely that they would become public".

Pre-trial legal moves by Department of Justice lawyers and lawyers for tobacco companies have led to the exchange of about 120 million pages of documents and have cost the US Government $190 million. About 200 witnesses are expected to give evidence and the trial is likely to take at least six months.

The department officials allege tobacco companies developed a unified strategy in the 1950s to deny the harms of smoking, which each year kills about 440,000 Americans and 20,000 Australians.

Tobacco companies say under the terms of a 1998 settlement with 46 US states that sued for $300 billion, they have already complied with orders that the Government is seeking in the current trial. They argue that for the trial, which is based on racketeering conspiracy laws, to succeed, the Government has to prove that fraud is likely to occur in the future.

· Last week, The NSW Supreme Court's Justice Virginia Bell found that smoker and cancer sufferer Myriam Cauvin could not bring an action on behalf of other smokers. Ms Cauvin, 40, had sued cigarette giants Philip Morris and British American Tobacco and retailers for the return of more than $200 million of invalidly collected excise tax, seeking to have the taxes transferred to a fund to compensate smokers for the costs of quitting, and for associated health problems.

http://www.theage.com.au/articles/2004/09/25/1095961911370.html

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