Release of Tobacco Firms’ Data Upheld

In a key pretrial action, the U.S. Supreme Court on Tuesday upheld lower court decisions ordering six tobacco companies and two trade associations to turn over to the state of Minnesota detailed computerized databases that the state has been seeking in its massive lawsuit against them.

The Supreme Court denied without comment the defendants’ request that they review a November order by Kenneth Fitzpatrick, a trial judge in Ramsey County, Minn., that they provide computerized databases that reference millions of documents for pending or anticipated litigation.

The database issue arose in a high-profile case, pending in state court in St. Paul, where the state of Minnesota, joined by Blue Cross and Blue Shield of Minnesota, sued in 1994 the companies, the Council for Tobacco Research and the Tobacco Institute, trying to recover millions of dollars spent on medical care for smokers.

New York University law professor Stephen Gillers said it was “rare” for a pretrial discovery ruling to be appealed to the U.S. Supreme Court and this was a another sign of how aggressively the tobacco industry defends itself.

“This is a huge blow to the tobacco industry’s attempts to cover up what they know and when they knew it,” said Minnesota Atty. Gen. Hubert H. Humphrey III. “This decision is monumental for us because it will help us finally get to the truth.”

Although Fitzpatrick’s decision states that the indexes only can be turned over to lawyers in other cases if all parties consent or if he issues a court order, Tuesday’s action also heightens the possibility that lawyers in a myriad of other cases will gain access to the indexes later on.

That could vastly ease the task of litigating against the tobacco companies because the indexes are expected to provide a road map to company documents and save plaintiffs’ lawyers thousands of hours of time and a tremendous amount of money, according to John Coale, a Washington lawyer who has played a key role in coordinating private cases against the industry.

During their case, attorneys for Minnesota learned that cigarette industry lawyers had developed sophisticated, computerized data systems for their clients.

The plaintiffs first asked for access to the information in February 1995, asserting that it would save them time and money in analyzing 9 million pages of documents in the case.

In November, Fitzpatrick issued a decision granting access to the indexes, though he permitted tobacco company attorneys to edit out certain “subjective” information, in particular lawyer comments about the documents.

The judge said that the plaintiffs had shown that they had a “substantial need” for the material and that they could not obtain anything equivalent to it “without undue hardship.”

Fitzpatrick estimated that if “five attorneys were to devote 12 hours each per day, five days per week, to the task of reviewing those 9 million pages--and limit their review to one minute per page--it would take nine years to review those documents alone.”

A Minnesota appeals court upheld his ruling and the Minnesota Supreme Court declined review. But the companies petitioned the U.S. Supreme Court, maintaining that Fitzpatrick’s decision violated their client’s right to due process guarantee by granting the plaintiffs access to information they contend should be protected from disclosure as a product of work done by an attorney while representing a client.

The companies also alleged that the “compelled, uncompensated” disclosure of the databases, created at a cost of tens of millions of dollars, amounted to an unconstitutional “taking” of private property without just compensation.

Lawyers for the plaintiffs said those arguments were ludicrous. “If the defendant’s arguments were granted, it would bring an end to pretrial discovery as we know it,” said Roberta Walburn, of Minneapolis’ Robins, Kaplan, Miller & Ciresi, special counsel for the state of Minnesota.

Walburn said she was pleased about the Supreme Court decision, but stressed that the battle was not over. She noted that a week ago an attorney for R.J. Reynolds Tobacco Co., apparently anticipating defeat at the Supreme Court, sent a letter to Fitzpatrick, saying the companies wanted to modify his order. A hearing will be held on that request next week.

“This is typical of what’s gone on in our case,” Walburn said. “We’ve won at the Supreme Court and we’re still not done. In this case, we are for fighting for every inch of ground 10 times over.”

Reynolds issued a statement decrying the Supreme Court’s rejection of their appeal. The company said the ruling “is a departure from decades of precedent that widely protected such databases from discovery as attorney work product.” Reynolds also said the databases “contain references to 10 million more pages of documents than the state of Minnesota even requested.”

Times staff writer Myron Levin contributed to this report.