COMMONWEALTH OF MASSACHUSETTS
MIDDLESEX SS. SUPERIOR COURT
COMMONWEALTH OF MASSACHUSETTS, *
PHILIP MORRIS INCORPORATED, R.J. *
REYNOLDS TOBACCO COMPANY, BROWN & *
WILLIAMSON TOBACCO CORPORATION, *
B.A.T. INDUSTRIES P.L.C., LORILLARD *
TOBACCO COMPANY, NEW ENGLAND *
WHOLESALE TOBACCO CO., INC., *
ALBERT H. NOTINI & SONS, INC., THE *
COUNCIL FOR TOBACCO RESEARCH-U.S.A., *
INC., and THE TOBACCO INSTITUTE, INC. *
BEFORE: SOSMAN, J.
July 24, 1998
Official Court Reporter
GEORGE K. WEBER, Assistant Attorney General, for the
JAMES E. McGUIRE and JEFFREY WOOLF, Special Assistant
Attorneys General for the Commonwealth
THOMAS GRIFFIN, MARSHALL SIMONDS and CERISE LIM-EPSTEIN,
ESQS., for Philip Morris
WILLIAM T. PLESEC, DONALD WOOD and DENNIS MURPHY, ESQS.
for R.J. Reynolds
HARRY ZIRLIN, ESQ., for Council for Tobacco Research
July 24, 1998
THE CLERK: Your Honor, this is Superior
Court case number 95-7378, Commonwealth of
Massachusetts versus Philip Morris, Incorporated,
et. als. It's here for a status conference.
Will counsel introduce yourselves,
MR. GRIFFIN: Good morning, your Honor.
Thomas Griffin, counsel for Philip Morris and
liaison counsel for the defendants.
MS. LIM-EPSTEIN: Good morning, your
Honor. Cerise Lim-Epstein, counsel for Philip
MR. SIMONDS: Good morning, your Honor.
Marshall Simonds, counsel for Philip Morris.
MR. McGUIRE: Good morning, your Honor.
Jim McGuire, Special Assistant for the
Commonwealth of Massachusetts.
MR. WOOLF: Good morning, your Honor.
Jeffrey Woolf, Special Assistant Attorney General
for the Commonwealth.
MR. WEBER: George Weber, Assistant
Attorney General. Good morning.
THE COURT: Before we get into the
interview memorandum, privilege arguments, which
I think are the main topic on for today, I was
just handed a status report on the master trial
exhibit list. It looks like you're making good
progress. I appreciate the effort that you're
making to organize this.
I don't know if there's anything in
particular you wanted to go over with me about it
other than to update me on how you're doing?
MR. McGUIRE: Your Honor, Jim McGuire.
Nothing in particular. The status report gives
the current summary that the parties will meet
and confer next week to continue the discussion.
We did have one joint question we would
put to the Court. We know that we are going to
be delivering hard copy of the trial exhibit list
to the Court in form or forms as you dictate from
time to time. The question that we have for the
Court is, do you have any interest in having
delivered to you an electronic database that
would permit the Court to search and sort trial
exhibits on the basis of rulings, issues,
parties, or any other basis?
THE COURT: That's a good question. It
certainly could be useful, and obviously you're
having to prepare it in that form, it might make
sense for me to have it.
MR. McGUIRE: And the follow-up question
would then be, administratively, is there
somebody that we, the parties, could, on a joint
basis, talk to in terms of what hardware,
software, the Court has to ensure that we can
deliver something to you that's as user friendly
as we can make it and compatible with your
THE COURT: Let me give that some
thought as to who would be the best person.
Any other concerns of the parties? I
just have two small items that I've noticed going
through it for myself to report back?
MR. McGUIRE: That's it.
THE COURT: On the question of suggested
fields, I note that the only -- the only specific
categories that deal with privilege claims where
sort of the tracking of my rulings, or the
grounds of my rulings are going to be reflected,
is crime-fraud. And in my own mind I questioned,
would there not be a reason for tracking -- since
this is a very comprehensive chart -- some of the
alternative grounds on which I might be ruling on
privilege claims, i.e., that in my view the
document was not predominately legal advice, or
waiver, or in other words, some of the items --
you know, obviously there's a particular
importance in tracking crime-fraud with some
specificity because of the stages it has to go
through and to make sure that all the stages are
completed. But I was wondering whether we should
not also be tracking rulings that have been made
on other grounds?
Some already have been made and others
may be made, or in some instances, there may be
multiple bases for my rulings and those should
also be reflected for everyone's purposes for
appeals and the like. That would be my initial
reaction to this, is simply, why don't we track
the other theories that are being advanced by the
Commonwealth as to why something isn't
MR. McGUIRE: The parties agree. We did
not want to overwhelm the Court with a much
longer list of fields, but if you look at the
exhibit, under number 6, it says "privilege
claim, type," and if you look on number 8, it
says, "ruling on privilege claim."
We have in mind, at least, that we would
pop in additional fields and then you would be
able to see on any document if a privilege was
asserted, whether it was asserted, what the basis
of it was, and what the particular ruling would
THE COURT: Correct. But if someone
asserts, for example, attorney-client privilege,
that can be overcome by waiver, by my sense that
it's not legal advice, or by going through the
different stages of crime-fraud.
I had thought 8 was simply representing
the bottom line, yes or no, for whatever reason
I've decided it is privileged or it isn't still
privileged, but not tracking the alternative
MS. EPSTEIN: Your Honor, I think that
we have a subcommittee that is going to actually
do the design of the fields, and I think that the
Court's point is well-taken, and I have no doubt
that we can accommodate that, right, Jim?
MR. McGUIRE: That's correct.
THE COURT: I mean, I'm just adding that
as my one, off-the-cuff reaction that I have,
having seen it. But I appreciate the update, and
obviously, keep me updated on its design, and of
course, its timing and numbers, as those are very
important for my planning purposes.
Anything else we need to deal with today
before getting to the merits of the privilege
MR. GRIFFIN: Agenda item number 2, we
could either save it or deal with it now, your
THE COURT: We may have some
miscommunication here. I don't seem to have
literally an agenda for today.
MR. GRIFFIN: It was delivered
yesterday. May I present a copy of the agenda?
[Document handed to Court.]
THE COURT: Yes, number 2. Let's deal
with number 2 now because I expect that will be
I, quite frankly, was surprised to get
further briefing on the CTR issue. I mean, I
don't mind getting things. Yes?
MR. ZIRLIN: Good morning, your Honor.
My name is Harry Zirlin. I'm an associate at
Debevoise & Plimpton. We represent CTR.
We received their supplemental brief,
and we just want to know in the proceedings
where we are now, you know, whether you need
further briefing from CTR? If not, that's fine.
THE COURT: I don't think I do. As I
think I indicated the last time, based on what I
have heard, I am not going to be making some
sweeping, across-the-board ruling that everything
that has anything to do with CTR is crime-fraud,
or even that all of CTR itself is a crime or a
fraud and that I should be thinking about it in
I still think everything having to do
with CTR needs a document-by-document analysis:
was the communication in furtherance of some use
of CTR that would be criminal or fraudulent. And
I have the parties very divergent positions about
what they say CTR was and was not, or what it was
and wasn't doing, as the background for that
As I say, I don't think I require
further briefing on it, and I was surprised to
receive the further materials I did from the
Commonwealth. I was not expecting them. So --
MR. ZIRLIN: I guess the concern that we
have though, is that, frankly, that you would
give -- I'm not saying that we need a formal
ruling that their last submission be stricken,
but I mean, there are some things in there that
are sort of new, you know, that we could address
if we felt that there was some danger that you're
going to be looking at that supplemental brief
and ascribing any weight to it whatsoever. I
mean, that's sort of where we are.
Well, as I say, because it was not
expected and not something I was about to rule on
in any way, I quite frankly skimmed it in only a
very superficial way, and I had not focused on
what specific items in there were perhaps new to
me. As I say, I haven't done so yet.
If there are -- perhaps we should leave
it this way, if there are items in there that you
think are genuinely new, you know, not proffered
by the Commonwealth in either of its prior
written submissions, or the time we spent on it
on the day we devoted to the subject,
and you want to point those out to me as these
are additional items and here's your response,
you certainly may do so if you wish to guard
against that concern. But I'm -- as I say, other
than that, I'm just proceeding with what I've
been given as the parties' general, you know,
background on how they view the CTR issue, and
that's in mind for future reference whenever I'm
called upon to look at a crime-fraud issue about
a specific document.
MR. ZIRLIN: Where we were prior is that
we were supposed to have -- is that we thought we
were going to have a response due August 3rd to
that supplemental. Can I go back to the partners
that I work for and tell them what you said, and
then if we do feel that we need to supplement,
and hopefully it would be brief, have until like
August 18th to --
THE COURT: Oh, easily. Again, because
at this juncture, I do not anticipate doing that
individual document-by-document review. So we
have, you know -- until we're working from the
exhibit list. So that pushes the time frame for
that response back, you know, considerably.
There's no need to give that particular brief
MR. ZIRLIN: Priority.
THE COURT: -- any priority earlier than
MR. ZIRLIN: Okay. Thank you, your
THE COURT: All right.
MR. GRIFFIN: Your Honor, I have one
more item in the category of miscellaneous, if
that's approximately where we are, that I'd just
raise now. It's my issue and I hadn't thought
about it, it really relates to a point of
clarification about scheduling for upcoming
events that relates to what the defendants are
doing and when they're going to do it.
My question is occasioned by my review
yesterday of the recent Supreme Judicial Court
decision in Vassallo v. Baxter, which is an
important product liability decision, and
triggered in my mind a question for your Honor. That decision emphasized the importance
of evidentiary hearings in Daubert or Lanigan-type proceedings where there are challenges to
the reliability and integrity of scientific
evidence proffered by experts.
In that regard, it had always been my
view that there would likely be a Daubert-type
attack on the damages model aggregating damages
and perhaps with causation elements,
conceptually. My preliminary view of the new
model doesn't shake my confidence in the fact
that there would be a like attack that we ought
to plan for, Daubert-like, vis a vis the new
model or the current model as most recently
identified by the Commonwealth. And the question
I had, in light of our discussion last week,
having been triggered by reading that decision,
was, the approach I had always had in mind is
that Daubert-type attack would be in the nature
of a Motion to Exclude or a Motion In Limine. And
I had targeted that for when the CMO so provides
for dealing with motions in limine.
It had not been my view that that
particular issue, vis a vis the model, was a
summary judgment issue. It is not a challenge on
the law. It is a challenge on the facts about the
integrity of the expert evidence proffered. And I
just wanted to make sure your Honor understood
that because when we talked last week about
making sure that summary judgment on September
15th included challenges on the law relating to
the model, to the extent that they were
identified and could be dealt with, we will deal
with those set of issues, whatever they are.
But the issue about the Daubert, it
seems to me, at least planning-wise, at least in
our mind, in the defendant's mind, is an issue
for the motion in limine stage, and I just wanted
to make sure that that was correct and your Honor
agreed with that concept and approach?
THE COURT: I see no flaw in that
analysis in terms of how it should be handled and
what category it comes in. That sounds fine. As I
say, obviously I am concerned, particularly if we
are going to be needing evidentiary hearings on
it, that there's enough advance warning in terms
of scheduling and time and logistics for that.
But that -- but conceptually --
MR. GRIFFIN: December, that's easier
than if it was September.
THE COURT: That's fine. I have no
problem with that.
MR. GRIFFIN: Okay. Thank you.
THE COURT: All right.
MR. GRIFFIN: I think we're at agenda
item number one, your Honor, if your Honor wants
MR. PLESEC: Good morning, your Honor.
William T. Plesec, counsel for R.J. Reynolds
Tobacco Company in this matter.
MR. WOOLF: Your Honor, Jeffrey Woolf,
representing the Commonwealth on this issue.
THE COURT: All right. I've read the
various materials submitted by the parties, and
it seems to me the first item to address is the
theories of attorney-client privilege, as I
certainly agree with RJR, if it is attorney-client privilege, we don't get to substantial
need and those other issues. So I want to,
obviously, go through that analysis first.
And before even leaping into the details
of that, my preliminary question is, it was in
RJR's memo for the first time that I saw a
suggestion that I should be applying the law of
something other than Massachusetts to these
privilege arguments. That's the first I've heard
that suggested, I think, in this case. And I was
somewhat mystified by it.
Are we applying the law of something
other than Massachusetts to this issue, Mr.
MR. PLESEC: Your Honor --
THE COURT: Or was that footnote thrown
in for make-weight?
MR. PLESEC: No, actually that point was
made in earlier briefing.
THE COURT: All right. I missed it. I'm
MR. PLESEC: Massachusetts does apply
the choice of laws concept, and analyzes it on
interest involved. And typically in a situation
as we have before the Court today, where you're
dealing with a foreign corporation that has its
principal place of business in North Carolina,
where the employees who were engaged in the
interviews were resident in North Carolina for
the most part, then the choice of law concepts
would defer to the law of the State of North
Carolina as opposed to--
THE COURT: Let me ask you, where did
the interviews physically take place?
MR. PLESEC: Primarily in North
THE COURT: Primarily in North Carolina.
And conducted by lawyers who were from your firm,
which is predominately not in North Carolina?
MR. PLESEC: Lawyers from the Jones, Day
firm, which is not domiciled in North Carolina;
however the Womble, Carlyle firm is. And Womble,
Carlyle lawyers did participate in those
THE COURT: All right. If that's what I
should be doing, as I say, the brief that I got
from you made various assertions, again simply in
its footnote, about what North Carolina law was
on the subject, and I suspect it's some
typographical error or something, then had no
citation for all of this, nor did I see any North
Carolina case other than the Mason Day
Excavating, which does not cover the specific
points at issue in this motion.
So if I'm supposed to be applying North
Carolina law, at the moment I am in utter
ignorance of what North Carolina law is on the
Let me hear the Commonwealth's position
on choice of law?
MR. WOOLF: The Commonwealth's position,
your Honor, is that this case is pending in
Massachusetts; that the -- we're talking about an
evidentiary issue, and so, the evidentiary law in
Massachusetts is what should govern.
Further weight to that is when one looks
at Mason, it says -- as a federal court, it
looked to the state. In this instance the state
has not really settled this issue itself, just as
Massachusetts has not, and so, in those instances
it looks to the federal common law. So it is not
as though we have in New -- excuse me, in North
Carolina, a definitive position on this. It's
also unsettled, and that's why the Mason Court
says, well, they'll go back and look at federal
law to the extent to which it is not inconsistent
with state law. So they don't have a resolution
on this either.
I think that plus the fact that we're
dealing with evidentiary issues in Massachusetts
would lead us to apply Massachusetts law, and of
course, since we have no opportunity to file a
reply brief, so I didn't brief that issue, if
you're going to do that, I would ask for leave to
explore the issue further.
THE COURT: Well, I'm looking at your
footnote 7 in your brief. I take it, at least
from your description, although without citation
in this footnote, that North Carolina has
rejected the control group test in some fashion
or other is what you're saying?
MR. PLESEC: Basically, your Honor,
North Carolina, in adopting uniform rules of
evidence, rejected Rule 501, which deals with the
control group test. And in rejecting Rule 501,
what it essentially means, for purposes of
analysis for North Carolina law, is that North
Carolina has looked to -- is going to look to
federal law for guidance. And we're dealing with
the substantive law here on evidence.
We're dealing with a North Carolina
corporation. We're dealing with North Carolina
employees who are interviewed. We're dealing with
counsel, in part who were from North Carolina,
and so, under choice of law concepts, the correct
analysis for whether or not interviews conducted
by counsel for purposes of rendering legal advice
to the corporation, even if those interviews are
of employees, should be governed by the law of
North Carolina which has rejected the control
group test, and under normal concepts, we would
interpret what North Carolina's intent is, is to
THE COURT: Let me further ask, I assume
the answer to this is going to be no, because
otherwise you would have put it very expressly in
your brief, but I gather North Carolina has not
said anything explicit on the subject of former
employees, is that correct?
MR. PLESEC: We could not find anything
explicit on that point, your Honor.
THE COURT: Okay. So just as
Massachusetts has nothing explicit on it, at
least not from the S.J.C. or the Appeals Court,
North Carolina has nothing explicit on it either?
MR. PLESEC: As far as we know, that's
THE COURT: All right. Let's deal first
with people who were at least then current
employees at the time these interviews took place
before we move on to the former employee part of
As I read RJR's argument, what they're
saying is, at least, that whether it's North
Carolina or whether it's Massachusetts, that with
very few exceptions Upjohn is the trend and
there's no reason for me to predict or assume
that Massachusetts should not fall in line with
that trend, and that at least as to the current
employees, follow Upjohn.
Let me hear from the Commonwealth.
What's the problem with that trend argument?
MR. WOOLF: Well, the trend argument, I
think, your Honor, is undercut by the fact that
effective January 1 of this year, the S.J.C. has
adopted the -- if I get these right -- the new
ABA model rules. We had previously been a code
state, and now we are a rule state.
And under the provision of Rule 4.2,
comment 4, we are essentially a control group
state and we reject therefore the concept that
attorney-client privilege applies to
communications between a lawyer and anyone other
than someone within the control group. And I
think that absent a decision from the S.J.C., its
adoption of the ABA rules and comment 4 to Rule
4.2, one would say that we do not accept the
control group test.
And, of course, there are federal court
decisions both ways. There's a magistrate
decision saying that -- predicting that
Massachusetts would adopt it. There's also a
Superior Court decision which, for some reason,
is directly contrary to the Massachusetts Bar
Association Ethics Rule on whether or not, for
example, employees who are witnesses to an
accident -- going back to the Chadbourne case in
1962, and I know there are earlier cases besides
that, but Chadbourne is very interesting for its
It takes various hypothetical situations
and says, well, you've got these current
employees; why would these communications be
privileged? If you have employees riding in a
company vehicle, and the driver's involved in an
accident, if they were not company employees,
interviews of them would be work product and
would be discoverable pursuant to Rule 26(b)(3).
The fact that they fortuitously happen
to be employees of the corporation does not then
clothe them with new status that they would not
otherwise have. And Magistrate Judge Collings
noted that. I realize that Leonen, Marshall is
contrary to that, but the MBA, in a post-Upjohn
ruling or ethical opinion 82.7, talks about just
that example, and says in that context, there is
no attorney-client privilege. You can talk to
those people directly. And of course, a number of
these cases derive rather from the narrow issue
of attorney-client communications and interview
memoranda, but can you go talk to current
employees of the company. And the argument is,
no. We are a control group state. We can -- you
can go talk to these people. And if you can go
talk to them because we are a control group
state, then arguably, the same applies --
THE COURT: What's inherently
inconsistent though with saying that someone was,
you know, outside of the control group, but a
witness, that the other side can go talk to them
without violating some ethical rule, but if that
employee-witness talks to his own company's own
lawyer, that that specific communication will
nevertheless be privileged? At the moment I
don't see those as necessarily inconsistent.
MR. WOOLF: I think the reasoning behind
the position that many states and courts have
taken that those are not -- attorney-client
communications fall into several arguments.
First of all, that employee has not gone
to the lawyer for the purpose of obtaining legal
advice. And this is where we get into the control
group argument. They happen to be interviewed.
They happen to possess factual knowledge, but
they are not there to seek legal advice. And we
have to go back to, among other cases, Fleet
National Bank vs. Tonneson. Because the attorney-client privilege can and often does seriously
impede the search for truth in a particular case,
courts are reluctant to extend it and that is why
they have said control group, this instance, that
instance, where they will not impose an attorney-client privilege exemption to these materials, or
conversely, limit the scope of the interview.
THE COURT: Let me stop you. The concern
I have is, what RJR is arguing is that these
arguments about why Upjohn shouldn't be followed
have been presented around the country, and so
far, most jurisdictions are rejecting these
arguments and going with the analysis in Upjohn.
Does -- is there anything other than
this new Rule 4.2 and its use of a control group
test for purposes of who can contact witnesses
without violating some ethical rule, is there
anything other than that to indicate that
Massachusetts would not fall in with that trend,
even if it's, you say, a bad trend?
MR. WOOLF: Well, I'm not sure it's
necessarily the trend. I know that it's federal
common law. It was limited by the Supreme Court
to IRS subpoenas. Judge -- Chief Justice Burger,
in his concurrence, limited it even further in
certain circumstances. But I don't think it is as
clear a trend as the defendants would paint.
I have to apologize, I notice that there
was an error in our brief. We said Oregon. It's
actually New Hampshire that has rejected it, and
that is the case of Klonoski v. Mahlab, 953 F.
Supp., 425, and I can give your Honor a copy.
It's 953 F. Supp, 425, Klonoski vs. Mahlab, K-l-o-n-o-s-k-i, which says -- and it's just this
kind of a situation where there was a medical
malpractice case. Actually defense lawyers from
Massachusetts went up to New Hampshire,
interviewed the people at the hospital who were
hospital employees, and the Court ordered the
production of the interview notes with the
employees of the hospital, saying, control group.
That's the way we go. And this is a 1996 case.
So there are cases in Illinois, there's
no question, and we quote it at length, and I
think the defendants conceded, that Illinois is
also one that has explicitly rejected Upjohn, and
I believe that California has maintained its
position as I cite it in the plaintiff's
memorandum, that line of cases from Chadbourne.
So I don't think it's as clear a trend
as the defendants would portray. It is clear that
it's federal common law. Federal common law does
not bind the states, and the S.J.C. has been
quite explicit in saying that they are not bound
by federal decisions. Even the U.S. Supreme
Court, when it wasn't until Kourouvacilis that we
rejected the Catreet testing, the summary
judgment standard. It wasn't until Commonwealth
vs. Lanigan that we decided to follow Daubert to
a specific extent.
So I don't think the fact that the U.S.
Supreme Court has spoken in Upjohn and the fact
that certain federal circuits have followed it
with federal common law in any way binds
Massachusetts or any other state, and other
states have been clear to say they are not bound
So I think the preliminary question is,
in terms of following a trend, I don't think it
is a trend, and I don't think that there is any
indication we would follow it given our adoption
of the model rules and the fact that former Chief
Justice Liacos' book continues to cite the
proposed federal rule of evidence, which refers
to the control group test.
So I'm not sure that one could say that
we're following a trend, if there is a trend, and
that we should be following it. I think the
extent to which Marshall v. Levine says
otherwise, I think that someone overlooked MBA
Ethical Opinion 82.7 because it specifically said
in that instance it doesn't apply, and Marshall
was directly contrary to that. But, what can I
say? It's a Superior Court decision, and
different Superior Court justices are of
different minds on issues, particularly
developing issues of law.
I think that there are other things to
be said, and one of them, it's interesting
because the Mason case on which the defendants
rely, cites in turn in a number of places, Leonen
vs. Johns-Manville, which is a case we cited. And
the import of Leonen has to do with the fact that
attorney-client privilege doesn't apply to work
that could be done by a non-lawyer.
And then we get into the fact that the
courts, in narrowly prescribing the limits of
attorney-client privilege, chip away at things
that would otherwise, but for these arguments,
say it's not an attorney-client privilege.
One is, was it something that could have
been done by a non-lawyer, which is the holding
in Leonen, which we cite, and which Mason cites.
And here, where we're talking about: Tell me how
you set up your library, when Dr. Colby was
interviewed. "I spent two years going to New
York buying books and I set up a library." Now,
is this something that requires a lawyer to
deduce? This is obtaining historical information.
This is something that if RJR had written its
history wouldn't be in these interview memoranda,
and I don't think in that context -- and we went
to great lengths to summarize for the Court the
nature of what was contained in these interview
memoranda. They are in Tab 2 of our appendix to
our brief. These are not attorney-client
communications for the purpose of obtaining legal
advice, and they are not things that needed to be
done by a lawyer, and the courts have said,
clearly, in those two context --
THE COURT: But I see no reason, I must
say, to disbelieve the affidavits coming from
Jones, Day, explaining that they were stepping in
to help RJR with a massive amount of pending
litigation, and they were getting information for
purposes of helping to prepare a defense.
MR. WOOLF: I agree, your Honor, but the
difference is, in Upjohn there was a current
crime that was going on. They were bribing
foreign governments, and the IRS stuck its nose
in, and they said, What's going on? Tell us
what's going on?
As your Honor observed, this is in 1985
-- going back to 1985, saying, tell us what
happened 15 or 20 years earlier. It's not for
the purpose of gaining information for specific
legal advice, and that is one of the
prescriptions for an attorney-client
communication. Not all communications between a
lawyer and a client are privileged and --
THE COURT: Right. But the criminal
defense lawyer who sits down with his client and
says, Tell me what happened? And his client
says, You know, I did rape her. That's historical
information. It's in the sense it's past. He's in
custody. It's not ongoing. But surely, surely,
obviously, we treat that as attorney-client
MR. WOOLF: Right. But that's for that
crime. Just as Upjohn was for that crime. It is
not historical information: Tell us the history
of the company.
THE COURT: This is for these ongoing
lawsuits that allege misconduct and wrongdoing of
various kinds out of these past historical
MR. WOOLF: But is anyone saying that
there's wrongdoing in Dr. Colby spending two
years to build a library? No, they're not. And I
think the facts that are extracted from the
interview memoranda as they are quoted at length
in the Fact Team Memorandum, so-called, indicate
that this is not something about, you know, did
you do the crime? Did you bribe the foreign
officials? Did you in fact rape the victim?
That's not what this information is about, and
therefore, one should distinguish between
historical information as your Honor observed,
asking somebody in 1985, what happened in 1971,
is different, and that's the point we are trying
So we would suggest that there's a
distinction that applies to, you know, just sort
of general background, you know, go read the
history of the corporation, as opposed to, tell
me the background events history because maybe it
happened yesterday or it happened last year, but
that's not what we're talking about. And so,
history, when it's, did you bribe the foreign
official last week or last month, in Upjohn, is
different from, in 1985, tell me what happened in
the sixties or seventies.
THE COURT: I must say, I do not find
that line of analysis persuasive, and what I
wanted to do is take this piece by piece and
focus on this trend argument, and Upjohn itself.
Let me hear RJR's argument on the
subject of why should I conclude that Upjohn is
Massachusetts law, if it's Massachusetts law and
not North Carolina law?
MR. PLESEC: First of all, your Honor, I
think that in terms of the trend, we believe the
case law demonstrate that there is trend in favor
of the Upjohn case. As you look at the
jurisdictions around the country, and if you were
to do an analysis, you would see that the vast
majority of the Courts are rejecting the control
group test in favor of the Upjohn formulation.
Massachusetts has not reached that
point, but the case law in Massachusetts has
cited favorably to Upjohn. That has been
demonstrated in the cases cited in our briefs.
The willingness of the courts of Massachusetts to
follow federal law when --
THE COURT: I must say, I obviously took
a look at those with interest. The S.J.C.
opinion, I think, cites Upjohn for the
proposition that the attorney-client privilege is
important. I mean, that -- you know, it doesn't
in any sense endorse a specific analysis in
Upjohn. It just -- at that point it was obviously
the most prominent, the most recent, and from the
highest level court, endorsement of the general
proposition that this is a very important
I find it hard to view that as any
signal that the actionable issue raised by Upjohn
is going to be followed in precisely the same way
by the S.J.C.
MR. PLESEC: But the Court, your Honor -- I agree, it didn't specifically say we are
adopting Upjohn and we are going to follow --
reject the control group test and so forth. But
the indication is that it has quoted Upjohn
The implication from that is, that based
on past history of the Commonwealth of
Massachusetts, when analyzing issues of this
nature, where the Courts of Massachusetts have
not spoken to the issue, they have looked to, and
shown a willingness to look to, the federal law.
And I don't think it's a real stretch or a real
reach to suggest that the courts of
Massachusetts, when analyzing a situation like
this, would indeed follow the Upjohn test, or the
Your Honor, I think as a practical
matter, it makes sense to reject control group in
favor of the Upjohn formulation.
As the court in Upjohn clearly stated
that the attorney-client privilege is the oldest
privilege, and it's purpose is to encourage full
and frank communications with a lawyer so that
the client can get proper legal advice.
Now, the only way that a corporation can
indeed get proper legal advice is for the client,
through its employees who have the relevant
information, have those employees convey that
information to the lawyer. The lawyer then in
turn can provide, based on that information, the
legal advice that is required by the situation.
I think that if you were to limit the
rendering of legal advice simply to discussions
and -- excuse me, apply attorney-client privilege
principles simply to discussions involving the
control group in a corporation and their counsel,
the control group would not necessarily have the
pertinent information that is needed by the
lawyer in order to provide the legal advice that
is requested. A control group may not have the
day-to-day activities, responsibilities,
etcetera, that deal with the issues for which the
corporation is seeking legal advice.
And so, in order for the client to get
legal advice that is meaningful, it is going to
have to have those with the pertinent relevant
information convey that information to the
counsel, who in turn can sift through the
information, do as the court in Upjohn suggested,
analyze the relevant from the irrelevant, decide
which is important, and then provide the legal
So I think that if the principles
articulated in Upjohn and its progeny since are
to be given any kind of respect, and we suggest
that they should, if attorney-client principles
are to really mean what the courts have said they
mean, then the control group test should be
rejected in favor of the Upjohn formulation.
And we do believe that the Commonwealth
of Massachusetts will, in the final analysis,
follow that formulation.
THE COURT: If I could also just ask you
briefly. I haven't tied them up from the various
cases you cite. Do we have a comprehensive list
of actual state court decisions, i.e., literally
state court decisions that have decided to accept
Upjohn as opposed to federal courts where you've
got to sort through, was it a federal case,
federal common law; are they simply predicting
that, you know, Mississippi or wherever is going
to adopt it. I mean, how many actual states,
state courts have already decided to accept or
reject Upjohn, and how many states is it still an
MR. WOOLF: I don't have a definitive
answer, your Honor, but I believe that only a
handful of states have addressed Upjohn per se.
THE COURT: One way or the other?
MR. WOOLF: One way or the other.
Oregon has not actually addressed Upjohn
per se, but they did broaden Rule 501, so that,
you know, is sort of an answer that's equivalent
to the Massachusetts one, which is, Upjohn has
not been addressed but unlike Massachusetts, they
have broadened the rule.
I know New Hampshire and Illinois have
specifically stated their position. They go with
control group. I believe there's another state
that may have addressed that --
THE COURT: I mean, even the New
Hampshire case you cite to me is itself a federal
MR. WOOLF: It is.
THE COURT: I'm answerable to the S.J.C.
I want to know what the functional equivalent of
the S.J.C. around the country are doing when
asked as part of their state law as opposed to
all these federal courts speculating about what
the state's going to do.
MR. PLESEC: Your Honor, I don't have a
definitive answer for your question either, but
we would be prepared to submit additional
briefing on that. I can tell you that we did a
THE COURT: I don't think it's a brief.
It's just a table or a listing --
MR. PLESEC: A tabulation --
THE COURT: -- of the citations
themselves that are truly, as I say, state court
decisions, not a federal court that's applying
federal common law, or a federal court that is
predicting that a particular state will follow
Upjohn, because that I think goes in a very
different category in terms of how -- how much of
a trend there is among the states themselves. It
would be useful to me.
MR. PLESEC: We will submit that, your
THE COURT: Just a list. And, you know,
coming from either side, rather than trying to
glean that from your briefs where it didn't pop
out of the page at me.
Any further arguments about why I should
or shouldn't follow Upjohn beyond this argument
about a trend that either side wishes to add,
beyond what's in your briefs and what you've
already told me, before we move on?
MR. PLESEC: Well, your Honor, if I
might just respond to a couple of the points that
Mr. Woolf made earlier. He basically said that
the employees who were being interviewed by the
Jones-Day and Womble-Carlyle lawyers were not
seeking legal advice per se, personally. They
were there at the direction of the client, the
corporation, to provide the lawyers with relevant
facts so that the client corporation could get
If the employees are not going to convey
that information to the lawyers, then the
corporation can't get the legal advice it needs
in order to defend itself in litigation or get
the proper assistance from counsel with respect
to other issues.
And so, the employees themselves don't
personally have to be getting legal advice. They
are simply providing information, and Upjohn
makes clear that legal advice runs both ways. The
legal advice provided by the lawyer as well as
the information provided by the client. And in
the corporate situation, the client can only
provide legal advice through the voices of its
employees, and that's what was done here in this
case, and was done in the Upjohn case.
With respect to the argument that the
interviews could have been conducted by non-lawyers, I don't know how a non-lawyer can gather
information for the purpose of providing legal
advice to a client. It's the lawyer who has to
gather the information, sift through the relevant
and irrelevant as the court in Upjohn said. As a
matter of fact, Upjohn teaches us that the first
step in the resolution of any legal problem is
ascertaining the factual background and sifting
through the facts. The court goes on to quote
that the ABA Code of Professional Responsibility,
that it is for the lawyer in the exercise of his
independent professional judgment to separate the
relevant and important from the irrelevant and
unimportant. It's the lawyer that has to do that,
not some non-lawyer.
I just don't believe that the argument
that is set forth by the Commonwealth in that
respect has any merit at all.
The Commonwealth argued that in Upjohn,
the court was dealing with a current crime. In
our situation, they claim that we are looking
back historically into the fifties for factual
information. The fact of the matter is, that in
the cases that are pending around this country,
including this case here, allegations have been
made going all the way back to the--
THE COURT: I understand your position
on that, as I think I've already agreed. On that
point, at least, I'm satisfied and I would agree
Anything further on the control group?
MR. WOOLF: Yes, your Honor. The concern
that the courts have expressed and your Honor
included is that one can create what's called an
overly broad zone of silence. By having the
lawyers go out and do things, it automatically
sweeps it under an attorney-client privilege, and
as your Honor observed, why have insurance
adjusters go out and do things that non-lawyers -- that lawyers can do. Instead, have the lawyers
do it and it will become privileged, it will be
attorney-client privilege, and that is one of the
reasons that the courts have rejected the broad
scope that Upjohn envisions because they're
concerned, and of course the Appeals Court, that
the U.S. Supreme Court reversed, went on at
length about this whole concept of the zone of
silence and the fact that there's this danger
that because a corporation can only speak through
employees, if you start casting your net too
widely, you wind up privileging a lot of things
that in the normal course of events but for a
corporation would not be privileged. And that is
one of the concerns that a number of the courts
have had and express pre-Upjohn about why it is
limited to a control group; why we don't do this.
Because of the danger of just this kind of thing,
of having people go out and gather historical
facts, things that insurance adjusters and
investigators -- private investigators do, day in
and day out, and say, oh, the lawyer did it. It's
privileged. And not just privileged because of
the work product. Attorney-client privileged, and
therefore, a much higher degree of protection.
And so, when we talk about, well, the
lawyers did it, the lawyers had to think about
what to ask the witnesses, insurance adjusters
and private investigators do that all the time.
It's not something that of necessity
requires, you know, great legal skill, admission
to the bar, or whatever, particularly as these
interview memoranda as quoted in the RJR Fact
Team Memo, and to a lesser extent the Doomsday
Memo or the Cap Memo, as it's called, show, this
is not something that required a law degree. This
is not sifting through facts. This is Dr. Colby:
Where did you go to buy your books? And how long
did it take you to build a library? You know,
who did the summaries of the articles? These are
not things that require a lawyer's mental
impressions, acumen, skill as trial counsel, to
This is exactly the kind of stuff that
the courts were concerned about being protected
unnecessarily and unduly by a zone of silence
concept that the defendants are urging right now.
And with regard to the other aspects of
this, because it's fact-gathering, and because it
is really historical, it is not directed toward
the litigation, it's different. Because how can
someone say with a straight face to this Court,
that asking Dr. Colby where he went to buy his
books, and how long it took to establish a
library, is germane to any of the claims about
youth targeting, or nicotine manipulation, or any
of the other kinds of things that are going on in
this and any other State A.G. case, or even the
individual smoker cases from years ago. They're
And to cast this net so broadly is
exactly the danger that the courts had warned
about and why states have rejected the Upjohn
MR. PLESEC: Your Honor, if I just might
MR. WOOLF: Just one quick -- I assume
this is all addressed solely to current
THE COURT: Current employees, yes.
We'll move on to former employees shortly.
Yes. Go ahead, Mr. Plesec.
MR. PLESEC: Your Honor, we are not
suggesting that the factual information within
the knowledge of the employees is itself
THE COURT: I understand.
MR. PLESEC: It's the communication of
that information to the lawyers, the
communication is privileged. And I believe that
Upjohn has addressed that when it stated, and I
quote, "Application of the attorney-client
privilege to communications such as those
involved here, however, puts the adversary in no
worse position than if the communications had
never taken place. The privilege only protects
disclosure of communications, that is, the
communication between the client and the
attorney. It does not protect disclosure of the
underlying facts by those who communicated with
We're not suggesting that the facts are
privileged. We're suggesting that the
communication from the attorneys or with the
attorneys by the employees and reflected in the
interview memoranda are privileged.
Now, again, with respect to counsel's
comments about Dr. Colby and the library, Upjohn
certainly addressed that point too, which is a
point I made earlier. It's the duty of the
lawyers to go out and gather the facts, sift
through the relevant and irrelevant. The fact of
the matter is, many of the things that he's
talking about found their way into the Corporate
Activities Report, and the R&D Fact Memo, we
thought were salient facts that we ought to write
THE COURT: Again, the Commonwealth's
argument along these lines does strike me as
novel. The attorney-client privilege, if it
applies, it protects it whether it's
incriminating, or innocuous, relevant,
irrelevant. So is it, you know -- does it satisfy
the various categories, and it's not on the list
of what it takes to be attorney-client privileged
that it be incriminating. It can be innocent and
still be -- or favorable to the defendant and
still privileged. So I don't think that's the
This part of the argument, it seems to
me, it simply comes down to, do I follow Upjohn
or not. That I think is what this piece of it
So I'll await your updates on state
decisions and take that issue under advisement.
Let's move on to the former employee
problem. Now, I think you put the numbers here.
Remind me, how many of the witnesses that we're
dealing with here are -- come into the category
of people who were former employees at the time
of these interviews? What are we talking about?
MR. PLESEC: Your Honor, I apologize. I
thought we were going to have a list with us
today, but unfortunately, we didn't bring that
with us. I don't have the exact number.
I believe that at the time the
interviews were conducted in 1985, most of the
people, the major fraction of the people were
indeed currently employed.
THE COURT: Okay. Setting aside for the
moment who these people were that were former
employees in such details as, you know, how long
ago they'd left or any of those semantic things,
let's deal, first, fundamentally with the
I must say, I must say that I do find
the concurring opinion that sweeps former
employees into this concept baffling. I find it
hard to understand how someone who is no longer
an employee is a client of the corporation's
lawyer. That sort of, with all due respect to
Justice Burger, defies my imagination.
They may be a witness. They may have
need for their own legal counsel quite badly,
particularly if that employee is one of the
people who is alleged to have done something
wrong. It seems to be one of the things
underlying Magistrate Judge Alexander's decision,
quite frankly, is this interview of the employee
who was alleged to have done the actual wrongful
act, who had left her employment a few days after
the alleged wrongful act.
But I find it hard to understand how
corporate counsel is in any sense the lawyer for
someone who's no longer with that corporation. I
am very troubled by the idea that former
employees are clients, or should be viewed as
clients of the corporation's lawyer. And I don't
get the impression from reading either side's
briefs that that aspect of the concurrence in
Upjohn has reached some kind of widespread
acceptance, or certainly not widespread
acceptance by states.
Let me hear from RJR on that.
MR. PLESEC: Well, your Honor, again,
the principle here is a corporation going to an
attorney trying to get legal advice with respect
to a legal issue. If the corporation, which is
the client, is going to get proper legal advice,
it has to have the persons who were employed at
the -- by the corporation at the time of the
events in question provide that information to
If one of those persons happens to be
now a former employee, that should make no
difference. If at the time --
THE COURT: Suppose one of those persons
with the most critical information has never been
an employee? The attorney's need for the
information is overwhelming, but we never say
that somebody becomes a client of that lawyer
simply because the lawyer needs that person's
information. We wouldn't apply this theory of,
well, if the attorney needs it, we'd better call
it attorney-client privilege so that the attorney
can get it. We call it work product if we need
to, and we often do. But it's the attorney-client
label being put on this simply because, well,
attorneys need this information so we'd better
call this attorney-client to make sure that the
attorney's able to get it, strikes me as very
MR. PLESEC: Your Honor, if I understand
the hypothetical posited by the Court, the person
who was never employed by the corporation, even
though that person may have important
information, would never be viewed as a person
who is a client of the corporation, or excuse me,
an employee of the corporation and therefore the
client conveying information to the lawyer. I
agree with you that that scenario, under that
scenario, the person would be a third-party
witness who had pertinent information. The lawyer
interviews that person, and the memoranda created
by the lawyer would be opinion work product.
But that's not what we're dealing with.
We're dealing with a person who was employed by a
corporation, who was involved in the activities
or events that are now the subject of legal
proceedings, but since that time has left the
corporation. That person is the, for all intents
and purposes, the client who is going to be
conveying the information to the --
THE COURT: The former employee may have
interests that are now incredibly adverse to the
former employer who would never view the
corporation's lawyer as even friendly perhaps,
let alone as his lawyer that he should be
confiding in, that we need to protect the
confidentiality of it. That person can refuse to
talk to the lawyer, short of subpoena. That
person can go get his own lawyer and, you know,
why should we view him as a client, or within the
definition, or the people who will be deemed to
make up the corporate client simply because the
attorney has use for his information?
Once he's left - once he's left, his
employer can't force him to talk to the attorney
as opposed to, you know, current employees can be
told, we want you to go tell our lawyer
everything you know about X, Y, and Z. A former
employee, they can call him up. They can ask him
to cooperate. He can cooperate. Cooperate in
part. Tell them to get lost. Do whatever he
wants. I have a hard time saying that he's a
client just because he happened to be there at
some important point in time, but isn't there at
the time of the interview, and therefore, no
longer - no longer within the corporate family.
I would be, quite frankly, troubled, at
the idea that that employee would now be told,
well, because what you told us was attorney-client privilege, even though you didn't view
yourself as your (sic) client, you may not tell
anybody else what we discussed. I mean, that's
one of the ramifications of calling this
attorney-client privilege is that former
employees can be, you know, can be told that they
themselves may not divulge things to others
because of this attorney-client privilege
I'm very troubled by this, obviously.
Let me just hear you out. But I --
MR. PLESEC: Your Honor, under the
hypothetical that you posited, again, let's
assume that the person who was involved in these
activities is employed on day one, and on day
one, is interviewed by the lawyer at the
direction of the corporation to provide relevant
The lawyer takes that information and
provides legal advice. That's a current employee.
Let's say that the same scenario, but on day two,
that person has left the company and is now
interviewed by the lawyer. There should be no
difference in the way the information is treated.
If the ex-employee is willing to provide
information to the lawyer for purposes of that
lawyer providing legal advice to the corporate
client about activities within the scope of that
person's employment while with the corporation,
then that information ought to enjoy the
privilege status that the information would enjoy
had that been provided the day earlier while that
person was still an employee.
Formalistic line drawing on when the
attorney-client privilege will begin or end, I
THE COURT: I can't resist. I can't help
myself. Let me ask you this. Here's one of the
many problems I have.
If you say that's attorney-client
privilege, that means that the lawyer for that
corporation -- say this person's a very important
witness, very important witness. The corporate
lawyer for that corporation that he used to work
for can go talk to him, interview him. That
lawyer can tell him all kinds of things about the
lawyer's own views of the case, strategy,
etcetera, etcetera. All right? And you would
say, it's attorney-client privilege. And yet the
client is still the corporation. So unless the
corporation says this former employee can
disclose that to someone else, then
theoretically, at least, the former employee is
now not supposed to disclose that even if he
wants to, to anybody else. You would so argue, I
Now, he's an equally important witness
to the other side. The other side's lawyer goes
to talk to him and interviews him. The witness
himself is now free, at least, and nobody could
stop him from divulging what the other side's
lawyer told him. He could tell it back to the
corporation. He could tell it to the Boston
By applying this, I must say, you are
taking a very important witness and effectively
saying what that witness can then himself go
around and share with people, even if that
witness didn't view this company's lawyer as his
lawyer at all. He can disclose to one side's but
you'd bottle him up as to the other side's.
Why shouldn't he just be treated as a
third-party witness, because he's no longer
there, work product comes in to protect both
sides equally, as need be, and as appropriate,
and yet, the witness himself - the witness
himself is free to disclose to others what he
wishes or doesn't wish to, about what he has said
to the lawyers, what the lawyers have told him.
Everybody's on the same footing with regard to
MR. PLESEC: Your Honor, I think that we
have to draw a distinction between what the
former employee is going to be allowed to
Again, the former employee, just like
the current employee, can disclose the facts to
the opposing counsel, that's not privileged. The
facts are not privileged. But the communication
with the corporation's lawyer is privileged if
the information is provided to that lawyer for
purposes of providing legal advice to the
THE COURT: But obviously this
communication with the other side's lawyer is
MR. PLESEC: That's correct.
THE COURT: All right. But you're trying
to bottle up - you're trying to bottle up what he
told the company's lawyer simply because of his
status as a prior employee. And the question of
bottling that up, or not bottling that up, isn't
in his control. It isn't in the witness's
decision: I want to disclose this or I want to
treat it as confidential. It's his former
employer's - it's his former employer's right to
waive or not waive that privilege. And the
witness himself, you would say, can't even do it.
Does the witness appreciate all the
ramifications of what he's getting into when he
talks to the former employer's lawyer? Does the
witness himself view this as confidential? Not
MR. PLESEC: Well, I think in the normal
circumstances, the witness would --
THE COURT: A current employee I would
tend to agree with you. It's perhaps one of the
reasons why Upjohn does make sense. Current
employees could well view, you know, what I'm
about to tell the company's lawyer is
confidential and that's part of encouraging them
to provide the information and be truthful and
all of that. But when former employees view what
they told their former employer's lawyer as
MR. PLESEC: Your Honor, I think that
while the case law at the state court level has
not fully developed on this point, there are a
number of cases that have articulated the
principle that was announced by Chief Justice
Burger in his concurring opinion in Upjohn, where
Chief Justice Burger said that the general rule
is that a communication is privileged, at least,
when as here, an employee or former employee
speaks at the direction of management.
THE COURT: I realize Justice Burger
said that. I am trying to understand why. The
majority, obviously, very carefully skirted the
issue, and very deliberately did not reach it.
They viewed it as posing a complicated
and more difficult question, which I think it
certainly does. It has ramifications that I find
troublesome. I think it gets -- I must say, it
gets into very -- I mean, one of the cases cited
here, I think it was Judge Sarris's decision, do
pose that peculiar problem of the other side's
lawyer goes to talk to one of these former
employees, which they clearly are allowed
ethically to do, and then find themselves in
trouble because that employee, that former
employee is not appreciating that this was
attorney-client privilege, went and perhaps said
something that was attorney-client privileged,
and the other side's lawyer finds themselves
dragged onto the carpet for having, you know,
supposedly interfered with the attorney-client
If the witness doesn't view it as
privileged, the witness might or might not,
depending upon the circumstances, why should I be
imposing -- in essence, imposing privileges that
the witness-employee, slash, client, you know,
client in quotes, doesn't even -- doesn't view as
confidential; doesn't view himself as a client?
MR. PLESEC: Your Honor, the distinction
between an ordinary third-party witness and a
former employee, I think is demonstrated by the
fact that a former employees's conduct with the
corporation may be imputed to the corporation,
and indeed, may be the very conduct that is the
subject of legal proceedings as opposed to a
third-party witness who is just making
observations about particular facts that he or
she happened to observe.
And so, if the corporation is to get
proper legal advice, then the communications of
the former employee about the activities that are
the subject of legal proceedings, the
communication of that information to the lawyer
representing the corporation has to enjoy the
attorney-client privilege protections that are
suggested by Chief Justice Burger in the Upjohn
THE COURT: That seems to be simply
going back to the argument though that if it's
important - if it's important, we have to clothe
-- if the information that he has to divulge is
important, we have to clothe it with attorney-client privilege to protect it. And, as I say, we
don't run around calling things attorney-client
privilege simply because the substantive
information that the person has to relay is
important or even vital. Sometimes the most
crucial information comes from third parties, and
we protect that as work product.
MR. PLESEC: But, again, your Honor, the
information is available to the adversary. The
adversary is permitted to either interview or
depose or whatever to gather the information that
the adversary deems is appropriate. And that ex-employee, just like a third-party witness, is
free to disclose what he or she knows about the
facts relevant to the proceedings.
The difference is that the communication
that that person has with counsel for the
corporation is a communication that should enjoy
the attorney-client privilege just as a
communication from an employee should.
THE COURT: What do you make of the
situation where the former employee is actually
hostile, antagonistic, has adverse interests to
his former employer, and is willing, you know, in
a begrudging way, to talk a little bit with the
company's lawyer, but not real excited about it.
Suppose the employee's even gone and
gotten his own lawyer? Again, perhaps we're
dealing with a former employee who himself has
some personal exposure arising out of the
incident, and he's gone and gotten his own lawyer
in whom he's confiding, but we'll nevertheless
say, Justice Burger says he's a former employee
and this is privileged, even though he's in fact
in some sense an adversary, in some sense has
divergent interests. We're going to call this
MR. PLESEC: Well, your Honor, I think
in that scenario that you just described there
may not well be an attorney-client privilege
communication because the ex-employee is hostile,
has indicated that he or she does not want to
regard the communication as confidential, and has
indeed expressly said that he or she will not
regard it as such. I find under that fact pattern
that it would be very difficult to assert
attorney-client privilege for the communications
between the attorney and that ex-employee. But
that's not the scenario --
THE COURT: How do we make that
assessment? How can we make that assessment
short of a lot of very complicated pulling apart
of exactly, well, you know, what did he say to
whom, including such things as, you know, in
camera reviews of what he told his former
employer's lawyer. It seems to me that it gets
awfully convoluted to figure out how -- where
you're going to draw that line and how you're
going to enforce it and figure it out on
something that, if it's attorney-client, it has
this, you know, inviolate absolute protection.
It strikes me as fraught with problems.
Again, to the extent, since you're putting
together this table of state decisions on Upjohn,
I would again appreciate anything on that that
shows states picking up on and adopting Judge
Burger's concurrence on this subject.
I can appreciate, and again I think it
was perhaps in Magistrate Judge Alexander's mind
in dealing with the -- I forget the name of the
case, but when I read it, it involved a
defamatory letter drafted, or allegedly
defamatory letter drafted by that employee two
days before she left. The suit's filed
immediately. She's asked about it by her former
employer at a time when clearly that former
employee has her own exposure, has her own
potential liability for it. The statute of
limitations had obviously not run. There might
have been a lot of good policy reasons under
those circumstances to read into that that she
would have thought that the company's lawyer was
very much on her side; was the functional
equivalent of her lawyer, and some understandable
reluctance to let the other side get their hands
on what she had told the lawyer on those peculiar
circumstances with that very tight time frame
where she herself had exposure.
In that sense I'm not sure that I
disagree with the bottom line of what Magistrate
Judge Alexander did, but I'm not sure that the
Judge Burger analysis is the right one as to why
you should reach that bottom line in that kind
of, you know, unusual case.
Is there anything the Commonwealth wants
MR. WOOLF: Your Honor, I agree that
this is the slippery slopes to start saying --
you know, extending to ex-employees, you know, on
the basis of the critical nature of the
information, one can then go to independent
contractors, non-party witnesses, and one
descends down the slippery slopes from there.
I was going to ask, however, if Mr.
Plesec would be kind enough to furnish the Court
and the Commonwealth with a definitive list of
current and former employees. We only were able
to provide your Honor with what we knew at the
time, and as your Honor saw from the exhibit,
there were a number where we did not know the
person's status. So for the Court's edification
and the Commonwealth's, if they could provide the
list that they intended but failed to bring
today, giving us a scorecard on all of the
THE COURT: Just what their status was
as of the date of interview.
MR. PLESEC: Yes, we can do that.
THE COURT: Just so we know what this
category, who they are and how big it is, and
whatnot. I'll think about it, and await your
lists, but it seems to me, assuming that I do
follow Upjohn as to the current employees, I'm
leaning heavily towards not adopting Judge
Burger's approach with regard to the former
employees, and those at least we'd then need to
talk about on work product and other analyses for
which we might -- we'll need some other
Let's move on to the alternative work
product analysis which may be needed as a fall-back for some, perhaps all of these, depending
upon how I rule on Upjohn.
Let me hear first from RJR on the work
product analysis. I think I would have no
dispute with the fundamental proposition that
these interviews are, at least in the first
instance, some form of - some form of work
product, but do you have any recommendation as to
how I, sort out whether they are, you know, core
opinion work product as opposed to plain work
product, short of in-camera review of the actual,
be they notes, memoranda, transcript, I'm not
sure what form the different items take?
It does seem to me that there's some --
you know, if what you have at one end of the
spectrum is basically the transcript, I'd have a
hard time viewing that as opinion work product.
If at the other end what you have is the
attorney's own thoughts about what this witness
said, what this witness adds to the case, how
this witness might be helpful, harmful, how
credible the witness is, how reliable he appears,
it can contain things that would obviously, in my
view, be absolutely core opinion work product,
and that we have a spectrum in there and I would
have to decide, if I reach work product analysis,
where along that spectrum a particular interview
I'll hear you on that, Mr. Plesec.
MR. PLESEC: Your Honor, I think as I've
mentioned in prior discussions of this topic,
last month and again as articulated in our
briefs, Reynolds' position on this topic is that
the entire memorandum is opinion work product.
What the memoranda reflect, as the
affidavits submitted to the Court verify, are the
mental impressions and judgments, opinions and
analysis of the lawyers on a variety of topics.
The memoranda reflect interviews
conducted by the lawyers. The lawyers prepared
for those interview memoranda by selecting
documents and deciding which questions to put to
The lawyers decided which of the
responses should be recorded in the interview
memoranda. All of that, the process itself,
reflects the mental impressions, the opinions and
judgments of the counsel who were conducting the
interviews. And so, the actual drafting and
writing of the memo is a reflection of opinion --
excuse me, core opinion work product. And so,
there is no way to really redact out any of the
THE COURT: How can I tell that without
seeing them? You know, if an attorney goes out
to a witness and says, Tell me what you know
about the accident of August 5th? That's the only
question the attorney asks, Tell me what you
know? And then the attorney just takes down what
the witness says. I would have a hard time
viewing that as opinion work product. That's the
attorney as scribe, as I mentioned earlier,
that's one end of the extreme. Or perhaps even
the more extreme would be the tape recorder
that's going and that's literally just the tape
recording of the transcript of the witness's own
Then you have gradations along, you
know, all the way down to something that is
indeed absolutely just the attorney writing up a
memo, you know, I interviewed so-and-so. He
clearly knows a lot about this. I think he's very
reliable. He'll help us corroborate so-and-so.
Need to follow-up on his suggestion that I look
at such-and-such. I mean, it could be just full
of nothing but attorney impressions, analysis,
reactions to the witness. Or it may contain some
of both where it could be redacted, or be so
intertwined that it couldn't. I mean, how do I
assess that without seeing them?
MR. PLESEC: Your Honor, I think that
it's pretty clear from, at least in my judgment,
from reading Hickman vs. Taylor, and the Upjohn
decision, that the courts -- the Supreme Court of
the United States has already decided that when a
lawyer interviews even a witness -- let's take it
outside the context of employees of a client --
even a witness, then the oral statements made by
that witness to the lawyer and recorded by the
lawyer are not regarded as ordinary fact work
If the lawyer, in your hypothetical,
decided that the only question that he or she
wanted to put to the witness was, what do you
know about this, that's a reflection of the
mental processes of that lawyer as to what is the
key issue for this particular witness.
And the recording of the response in the
way that the lawyer records it, is the mental
impression of the lawyer as to what is important
in the information being provided by that
witness. The entire document, therefore, under
Hickman and under Upjohn, would be protected as
opinion work product.
THE COURT: If a lawyer goes out and
says, tell me what you know about this accident,
and flips the tape recorder on, are you telling
me that tape is opinion work product?
MR. PLESEC: Your Honor, if the entire
interview boiled down to one question and one
answer, I believe that's correct.
THE COURT: That's opinion -- the tape
is opinion work product?
MR. PLESEC: Well, the tape reflects the
mental processes of the lawyer as to what
question to put to this particular witness. The
other side is free to go interview that witness.
The other side can ask whatever questions they
want of that witness, and whatever information
they get is likewise opinion work product if they
record it in some fashion.
But the mental impressions, the
judgments of a particular lawyer as to what
question to put to a witness --
THE COURT: Suppose we excise from the
tape the question, what do you know about the
accident of August 12th, we redact that, and we
just get Mrs. So-and-so who starts off, I was
standing at the corner of Elm Street and Main
Street. The light turned red. I saw the truck. He
was going about thirty miles -- this is her voice
- her voice, giving her narrative of what she
saw, that's opinion work product?
MR. PLESEC: Your Honor, if that was the
record of the interview memoranda, I believe it
would be under the case law.
THE COURT: What kind of work product is
there that isn't opinion work product in your
view? Can you give me an example of something
that isn't, that's work product but not opinion
MR. PLESEC: Again, your Honor, as I
suggested to the Court last time, I think an
example of fact work product would be to go to
take a statement from a witness, where the
witness provides information and then signs a
statement. That's the witness's statement.
The witness is now unavailable, either
because he or she is dead or for some other
reason, and the other side does not have an
opportunity to gather that person's information,
under that scenario, I do think the opposition or
the adverse party may be able to convince a court
that they should have access to that statement.
But if the person was interviewed by a
lawyer, and then becomes unavailable, and the
interview memorandum is opinion work product, I
think that the opposition has to demonstrate more
than substantial hardship, substantial need or
undue hardship in order to get any information
from the other side.
Indeed, as Rule 26 here in the
Commonwealth of Massachusetts states, that in
ordering discovery of factual material, when the
opposition demonstrates substantial need and
undue hardship, the court shall protect against
disclosure of mental impressions, conclusions,
and opinions, and legal theories.
And under that scenario, what it means
is that opinion work product shall be protected
and should not be disclosed to the opposition.
In the example of a factual statement
signed by a witness, that is the witness's
statement. It's not the lawyer's statement.
That's not the opinion of the lawyer or the
mental processes of the lawyer. It's the
statement of the witness.
THE COURT: In the tape recording
example that I just gave you, you told me that
was opinion work product because of the
introductory single question by the lawyer.
I must say, you seem to be taking a very
extreme position; that's why I'm bothered by it.
MR. PLESEC: Your Honor, I don't think
it's really that extreme. The other side is
always entitled to the facts. Nobody is
What the other side is not entitled to
are the mental impressions and the opinions and
the work product of the opposition. And where the
interview memoranda, or the documents reflect the
mental impressions, judgments, analysis of the
opposition, then the adverse party is not
entitled to get that work product even under a
substantial need or undue hardship standard.
THE COURT: Well, I come back to my
original position. I must say, I think the way I
do that - I think the way I protect against that,
if need be, if substantial need is shown and we
have to deal with these things, is that I take a
look at them and see, are they indeed so imbued
with the attorney's mental impressionws that not
even a redaction could protect against disclosure
of that, or are there some pieces that are
segregable that are just the witness's own
information, not being analyzed, commented on,
filtered though, you know, the lawyer's
But let me hear from the Commonwealth on
this, as to how you think I should approach it in
terms of the logistics?
MR. WOOLF: I think it is necessary to
view the statements in camera. I think that -- I
hate to draw the analogy between pornography and
opinion work product, but it is something one can
recognize when one sees it. I think there is a
difference between Mr. Smith saw this and, I
believe that Mr. Smith is credible when he said
he saw this.
I think it's clear. I think Mr. Plesec
is confusing, when he distinguishes between your
Honor's two hypotheticals, he's confusing
substantial need with the definition of plain
work product versus core opinion work product, to
say that the statement is work product if the
witness is alive and -- core work product if the
witness is alive, and plain work product if he's
dead, gets to substantial need not whether it's
opinion core work product versus plain factual
work product. I think that's where R.J. Reynolds
confuses the two.
If one reports, as it appears from our
extract of the witness interviews, which is Tab
2, reports factual information, that is plain
work product. The witness said this. The witness
saw that. The witness did this. That is plain
work product because it is something, one would
argue -- I mean, I suppose one could argue it's
not work product. But assuming, arguendo, it's
work product, it's plain work product. It is
simply a recitation of facts obtained from the
And given the substantial factual nature
of these statements as extracted from the Fact
Team Memo and the -- what Mr. Motley called the
Doomsday Memo, RJR calls it Corporate Activity
Project Memo, CAP Memo, from looking at what they
say in these memos, quoting these interviews, it
appears there are substantial factual information
True, they may say, I believe the
witness. He said this and I believe he's
credible. One deletes the second sentence, which
is the comment on the credibility of the witness.
I am bemused by RJR's position, because
on the firsthand, they say, we didn't know -- or
Jones, Day didn't know anything about RJR. They
came in and they said, just tell us. We don't
know anything. And then these witnesses go forth
and talk the way one goes to a motor vehicle
accident witness and says, what did you see?
Now they're saying, well, we had these
mental impressions. We determined what to ask.
Well, I have trouble reconciling the two
positions between we didn't know anything, and
people just spewed forth and we wrote it down,
and now saying, oh, but we had these mental
impressions. We guided these interviews. We know
what we were doing, and they weren't just
information gathering because we didn't know
First they undermine -- they attack
their own Fact Team Memo saying, this is
unreliable. The lawyers didn't know what they
were doing. They made lots of mistakes. Your
Honor says to them, well, then, why not go to the
Then they say, well, the source material
is privileged because we had these mental
impressions. We were directing the scope and
nature of the interviews. I do find it
inconsistent for RJR to take these two positions.
But as Mr. Plesec notes, and your Honor,
of course, knows, mental impressions,
conclusions, such as, I believe the witness is
credible, legal theories, this will help us
support our argument that X or defense of Y,
those are redactable. And those, I would
suggest, are what is meant by the mental
impressions, the core opinion work product.
That is substantially different from the
extensive historical factual recitation that is
contained in these interview memoranda, as quoted
extensively in the two RJR -- well, quoted
extensively in the Fact Team Memo, and to a
lesser extent, in the Doomsday or CAP Memo. It's
fact. And the only way to do this is to go
through it and read it. And I don't see any other
I mean, to say it's privileged, or core
work product at the get-go, and there's no way to
sort everything out, I think is disingenuous, and
the disingenuousness of it is belied by what we
already have, which is, extensive quotations from
them. So I think your Honor does have to look at
And as I understand from RJR, there's
only 46 of them, and they run somewhere between 5
and 15 pages. In terms of scope, it's not as --
it's not even as long as the Corporate Activity
Project Memo itself.
THE COURT: Anything further, Mr.
Plesec, before we move on to your argument on the
subject of substantial need?
MR. PLESEC: Yes, your Honor.
I think that Mr. Woolf is confusing
simply a recitation of facts in a piece of paper
versus a judgment rendered by lawyers as to which
facts to put down on a piece of paper: which are
important; which do they think are going to be
needed for purposes of providing legal advice;
which are important for purposes of defending
litigation, these types of things.
The fact that a memorandum contains
factual information contained by the interviewee
does not mean that it is not intertwined with the
lawyer's mental processes and judgments and
opinions as to what is important and what is
irrelevant and so forth.
The lawyers are doing what the Supreme
Court has said they should be doing, gathering
information, determining what is relevant and
what is irrelevant, recording what they believe
might be relevant, rejecting that which they
don't deem is worthy of recording. And so, the
entire process of recording information in a
memorandum is a demonstration of the exercise of
judgment and the mental processes of a lawyer.
Going back to the example that the Court
gave earlier about the tape recording, perhaps
the words of the witness in that scenario are
more akin to the witness writing a statement and
signing it than the interview memorandum here.
But if the actual questions put to the witness on
interview are recorded on that tape recording, I
still believe that that demonstrates the mental
processes of the lawyer, indicating the areas of
inquiry that he or she believes ought be pursued.
So the questions that would be put even in a tape
recording are important mental processes that are
deserving of protection.
Now, maybe if you go back to your
example and you say, let's redact out all the
questions, and all you have is the voice of the
witness recording the facts, then maybe that's
more akin to the witness statement that I
suggested earlier, but it's hard to suggest that
even in a tape recording situation, where you
have the mental processes reflected of what the
lawyers thought were important to put to the
witness, that those things do not rise to the
level of opinion work product.
I was going to make a point about
substantial need, but I believe the Court was
going to ask the Court to demonstrate its -- ask
the Commonwealth to demonstrate its views on
THE COURT: In terms of substantial
need, we're, I think, operating a little bit in
the dark at the moment because we don't have the
definitive list and status of who these people
are. Is the person dead? Is the person
unavailable? Or is the person available and been
deposed? When deposed, did the person claim, I
have no idea what you're talking about; I don't
even remember any of this stuff. Or did the
person give a lot of information?
To what extent, if any, which, again,
I'd have to deal with it on in-camera review, do
the underlying memos contain any facts that
haven't already been put forth in the CAP Memo,
or the R&D Memo. I mean -- the Fact Team Memo. I
do get the names confused, or the memos confused.
But anyway, it seems to me there are a lot of
issues on substantial need that are a little bit
difficult to address short of, you know, a
witness-by-witness breakdown of where things
So it's a little bit hard to ask the
Commonwealth, show us your substantial need,
until we have that list to work from. And
obviously, particularly, if I side with RJR as to
Upjohn, but with the Commonwealth as to former
employees, we need to know what that list is just
to tackle this piece of it.
Maybe what I should do though, is ask
RJR what things would, if any, would you yourself
recognize as substantial need? I assume if the
witness were dead, would that satisfy you? I
mean, where do you say that line should be drawn,
and then when I get the chart we'll see where it
MR. PLESEC: The substantial need
standard has to be satisfied by the person who is
seeking access to the information. It's the
Commonwealth's burden to demonstrate that they
have the substantial need to get access to the
information. That's not a position that I'm ready
to articulate today because I don't know what
their argument is.
They have simply said that they need the
stuff without really setting forth the reasons
why they believe there is a substantial need to
get access to these interview memoranda, assuming
that they were only work product.
THE COURT: Well, let me ask the
Commonwealth, how much information do you have as
of now to address the substantial need issue on a
witness-by-witness basis, or even by certain
MR. WOOLF: It was our understanding
that your Honor was going to address the
attorney-client privilege issue, and the people
at Ness, Motley who are most knowledgeable in the
substantial need issue were not available to
I can tell you, for example, that
Lorraine Pollice, who was not an employee but
that was one of the people who was interviewed,
was asked about a log in her deposition. That is
referenced in an interview memorandum.
In her deposition, as I understand it,
she did not remember it. So clearly there's
substantial need when a witness has a failure of
memory. Or is dead. Or testifies at variance to a
prior statement. Those are things that I briefed
generally in the initial memorandum. But as to
the specifics, your Honor, I'm not in a position
to discuss that.
THE COURT: Okay. Let's do this. Let me
make my decisions, which I will get to you
shortly, on attorney-client privilege, and that
will define what categories, if any, need to be
addressed as work product, substantial need, and
then, you know, before the parties have to
undertake the logistics of the kind of -- because
I think it does have to be done on a witness-by-witness basis. I'm not going to across the board
say, well, just because this was a long time ago,
every single one of these has automatically a
substantial need. I think it does have to be
done on a witness-by-witness basis. So let me
hold off on that.
The last item that I did want to address
is Pollice, and then there was the other
statement where I have seen those in camera, the
two Pollice statements and the one from the other
Before we even talk about joint defense,
let me say from my -- simply from my own review,
the other witness which in your redacted versions
you describe as a consultant retained for
litigation, from having seen it, it clearly does
appear to me to be a consultant retained for
litigation, not in fact even a fact witness, but
an expert consultant clearly being questioned
about matters concerning an upcoming trial. I am
satisfied that that is opinion work product. It's
not something that would need to be produced in
any event. So that one does not need to be
So that would leave only the two memos
pertaining to Miss Pollice as someone who was
never an RJR employee, and yet, was interviewed,
is that correct?
MR. PLESEC: That's correct.
THE COURT: So we've narrowed it down.
So she's the only one.
Let me hear you -- I know you've
addressed these issues before, but now that I've
narrowed it down to specifically her and joint
defense, is there anything further you want to
say about why her interview is protected as joint
MR. PLESEC: Yes, your Honor. Just to
recap what we have already submitted, at the time
that Marilyn Forbes was at CTR doing her work,
CTR and Reynolds, as well as other tobacco
companies, were codefendants in a number of
pieces of litigation around the country, and I
think the affidavit of Mr. Ronald Bianchi will
demonstrate the number of cases involved at that
period of time.
When Miss Forbes was doing her work at
CTR, she identified a couple of issues that she
thought should be addressed with respect to
defending Reynolds and CTR in that litigation.
She identified the issues as the
memoranda demonstrate. She talked to Miss
Pollice, who had information about those issues.
She gathered that information for purposes of
analyzing the facts pertinent to the issues. She
made some judgments about certain of the problems
that she had identified and the issues.
The fact that Miss Pollice was not an
employee of Reynolds at the time is of no moment
in the context of a joint defense, common
interest situation. And in this particular
situation, Miss Pollice was working for CTR, who
was not only a codefendant with Reynolds in much
of the litigation, but indeed, Reynolds was a
founding member of the Tobacco Industry Research
Committee, which later became the CTR. And so,
there was an additional layer of relationship
Beyond that, I think the case law is
clear that when parties are in a joint defense or
common interest situation, the attorney for, in
this case, CTR, does not have to be present while
the attorney for one of the other defendants or
parties with a common interest is gathering
information for purposes of litigation or matters
of common interest.
As Miss Forbes' affidavit clearly points
out, she believed that she was collecting
information that is covered by the attorney-client privilege as well as by opinion work
product. And so, we would strongly urge that the
Court find that each of the memoranda that have
been submitted in camera are not only opinion
work product, but are indeed attorney-client
privilege material also.
THE COURT: Let me ask you this, without
revealing what the item is, I must say, looking
at the statement, there is one point where Miss
Pollice declines to answer something that Miss
Forbes asks her, saying that she wants to go over
it with CTR's own lawyers first. I mean, a
curious situation that in the view of the witness
herself, she was not going to confide everything
in Miss Forbes. It's a curious wrinkle, it seems
to me, in joint defense, her own recognition that
in her own mind there was something different
between CTR's own lawyers and the lawyers who you
say were part of this joint defense.
What, if anything, do you make of that?
Again, I'm not asking and I'm not intending to
divulge what the point was.
MR. PLESEC: Well, your Honor, I think
what we really see is a woman who is not tutored
in the legal profession; not knowing the ins and
outs of the legal process. CTR at the time was
changing counsel. Old counsel was leaving;
Debevoise and Plimpton was just coming on board,
and I think it was an exercise in caution on her
part that she wanted to talk to the CTR lawyers
before she continued on on that issue.
THE COURT: All right. Again, the
Commonwealth has talked to me some about joint
defense, but is there anything more you want to
add today as that is germane now to this one
MR. WOOLF: Again, your Honor, I'll have
to beg the Court's permission to supplement this
for two reasons. First of all, because I think
that the issue of substantial need is a factually
-- in part, factually driven, and I'm just not
familiar enough with Miss Pollice.
But I do want to raise one point. Your
Honor may recall that when we had the hearing on
the case management order and the defendants
wanted some broad language on joint defense, and
the more they argued the more your Honor became
curious as to what was motivating a joint defense
claim. And the fact is, there was no joint
defense agreement, or anything, you know, up
until a couple of years ago. Certainly not ten or
fifteen years ago when Miss Pollice was
And, so, it begs the legal question,
given that there was no recognition in
Massachusetts, then or now, of joint defense. And
I certainly don't know what the law was in that
state at the time about joint defense, whether it
was even recognized because it's a relatively new
concept in litigation, whether one can, after the
fact, assert a joint defense privilege when the
concept wasn't in existence at the time.
But I think that that was something that
we would request an opportunity to explore
briefly with the Court.
THE COURT: Let me recommend this. One
of the things that you raise, Mr. Plesec, with
regard to the Pollice -- the two Pollice
statements, was indeed the assertion that
essentially everything in them was already in
the, you know, the comprehensive memo itself,
that it had been picked up verbatim. And it may
be just the logistics. You indicate somewhere
that you had put in the attachments, that you had
highlighted those parts from the Forbes' Memo
that had been, you know, verbatim.
MR. PLESEC: Yes.
THE COURT: It may just be logistics. I
can't seem to find the version that has that
highlighting that makes that easier for me. In
other words, if I agree with you on that, that
it's all there anyway, then clearly there's no
substantial need. They've already got it, and I
don't need to worry about joint defense and
whether it applied to Miss Pollice back in the
MR. PLESEC: Your Honor, we'll submit
THE COURT: There seemed to be a version
-- there was a version under seal sent to the
clerk, and a version under seal sent to me, and
it may have been that just one of them has that
highlighting and not the one that got to me.
I don't want extra versions of things
that are under seal floating around any more than
necessary, but are you sure that you highlighted
one of them?
MR. PLESEC: Mr. Wood advises me that
only one was filed under seal, and it was
THE COURT: And made it to me. And you
think -- I didn't see it highlighted.
MR. WOOD: That's correct. It went to
you only, your Honor.
THE COURT: It went to me only. Then I
do need --
MR. PLESEC: Your Honor, let us
undertake to give you a new copy.
THE COURT: I don't need all the
attachments, just the guts of it with the
highlighting that lets me take a look at that
If if agree with you on that issue, then
I don't even need to address any of these other
MR. ZIRLIN: Your Honor, excuse me. On
the matter of the two Pollice memos, there is one
other slight wrinkle. I know we're piling
wrinkles on top of wrinkles.
Within the Pollice -- within the two
Marilyn Forbes' memos themselves, putting aside
the conversations with Miss Pollice, there are
items in those two memos that are clearly
attorney-client privilege in that they reflect
the advice that CTR's counsel gave to CTR. And
should -- I have copies of each memo that we've
marked the redactions on, that if for some reason
it turns out that they do have a substantial need
and you rule that they are entitled to it, we'd
like you to see these now with the redactions.
I mean, you don't have to look at them
THE COURT: So CTR's own proposed
MR. ZIRLIN: Exactly. And we're doing
this now so that if it turns out, you know, a few
weeks from now, somebody will say, why didn't you
[Documents handed to Court.]
THE COURT: I'll take them now.
In terms of where we go from here, what
I will need to do is at least communicate to you,
hopefully as soon as I can, after I get your
tables of the state law, at least a bottom line
of what my ruling is going to be on Upjohn and
former employees and things so we know what
additional work does or doesn't need to be done.
And in the interest of time, I may indeed
communicate that to you in a very -- my bottom-line fashion without necessarily a full memo
explaining my reasons at the same time.
When can I expect to see these lists of
citations of states that have followed Upjohn,
not followed Upjohn, what kind of time frame do
people need to update that for me?
MR. PLESEC: I believe we should be able
to get the Court a list of the states that are
following Upjohn in about a week.
MR. WOOLF: Yeah, next Friday.
THE COURT: Okay. And as soon as I get
those, I'll take a look at it, and as I say, at
least communicate the bottom line of my decision.
If I decide that some or all of these people --
the interviews with these people is not protected
by attorney-client, we then obviously do need to
move on to the nitty-gritty of substantial need
with regard to those people.
It's hard to map that out now, too,
because you don't know how many people that might
or might not involve. It might involve none. It
might involve all. It might involve half.
MR. WOOLF: I assume Mr. Plesec will
deliver on Friday, also, the list of current
versus former employees.
THE COURT: Yes, the current versus
former employees' list so we can get that. All
MR. PLESEC: May I, with the Court's
indulgence, move it from a week from today to the
following Monday, ten days from now, on our
submissions? I'm going to be on vacation next
THE COURT: You are entitled to a
vacation for sure. If that's what you need,
MR. PLESEC: Thank you.
THE COURT: I'll wait until I have both
of those, but as I say, expect at least a short
ruling shortly after that. And then perhaps by at
least the time of the next status conference,
we'll know where we stand on, and map out,
getting any substantial need questions addressed.
All right, anything else that we can do
today, or that need to be addressed today before
we simply schedule our next session?
Our next session, when, and any previews
of agenda items just so I know how much time to
schedule? Any sense?
MR. GRIFFIN: I can speak to when. I
don't think I have any particular views about a
preview that I can predict, your Honor, but in
terms of talking with defense counsel, subject of
course to your own availability, and you're
entitled to a vacation, should that be on the
horizon, the thought was that Thursday, August
27th would be a convenient date; less convenient
for some will be Thursday, August 20th. That's
only from the defense side. I don't have a sense
of the availability of counsel for the
MR. WOOLF: If I could just have a
moment, your Honor?
[Conference between counsel.]
MR. WOOLF: Either one, your Honor.
MR. WEBER: I prefer the 20th, your
Honor, because we believe there should be an
earlier report date on the issues related to the
trial exhibits, experts, depositions, things like
that. We think we ought to keep the parties
moving, so we prefer the 20th.
THE COURT: Either is fine with me.
MR. WEBER: Or, alternatively, your
Honor, if we could ask the Court for an earlier
report date on the -- particularly the issue of
the trial exhibits. And we don't -- we wouldn't
mind a status conference on the 27th, but we'd
like to get that particular issue moving and
before the Court and not wait until the 20th or
MR. GRIFFIN: May I suggest we fashion
some sort of a status report on those two issues
that we can do on the 20th, and then we can
discuss with the Court anything about those, or
other agenda items, between the 20th and the
MR. WEBER: Your Honor, I think that's
way way too long. We'd like to actually start
beginning exchanging trial exhibits before the
20th of August. We've proposed that to the
defendants, and if they don't agree to that, we'd
like to get before the Court and get that moving.
MR. GRIFFIN: Your Honor, may I suggest,
instead of struggling with this now, we're going
to meet next week, or as soon as possible, to
continue the business both about the exhibits and
also to discuss expert witness discovery matters.
Let's get those meetings under our belt, and
report to your Honor then about the status of
them and determine whether we need to see you
sooner or later, and then we'll just adjust as we
need to, depending on what we need to, and when
you are available to see us, if you need to see
THE COURT: I'm available to see you
either, or if need be, both days. My vacation
will be long over by then, so I'm set.
I don't want to have status conferences
prematurely when people say they are not ready to
discuss things. By the same token, time is
becoming very much of the essence, and I do not
want to unnecessarily put off a status conference
that could accomplish something productive and
keep us on track.
MR. WEBER: Your Honor, may I suggest
that perhaps we can resolve these issues next
week and then we can get back to you as to
whether we're continuing to maintain that the
20th is necessary.
THE COURT: Let's do that. I'm available,
as I say, on either or both days. So communicate
to me enough in advance and we'll set it, and see
I repeat, I particularly, here where
people are not giving me much -- there's not a
preview of an agenda, I really need the agenda
enough in advance to have my own thoughts
together to make productive use, whether it's the
20th or 27th, so I do need the agenda enough in
Whether it's either the 20th or the
27th, one thing I do owe you, and I very much
apologize for the delay, is my actual decision on
the waiver argument about the thirty-nine
thousand, thirty-seven thousand. I thought I
would have that completely done long before now.
I am just now finishing it. That will be to you
shortly, and it will certainly be to you in
advance of that so everybody knows.
MR. GRIFFIN: Your Honor, in terms of
housekeeping, I was going to send a letter on
behalf of the defendants, sometime probably next
week, just reminding your Honor of our request
about the entry of orders on the Motions to
Dismiss, and the motion regarding Medicaid
recipient discovery, which I don't believe have
issued as yet. And I think they were --
THE COURT: I thought I had taken care
of that. You had raise that before.
MR. GRIFFIN: We submitted a proposed
form. Mr. Parsigian did it back the end of May.
As far as I know, your Honor, those have not been
entered. I'll be happy --
THE COURT: And nothing got entered on
the docket itself either, you say?
MR. GRIFFIN: Not that I have seen.
THE COURT: All right. Anything else?
Okay. Then I'll await to hear from you.
[Court adjourns 12:09 p.m.]
C E R T I F I C A T E
I, Patricia Bellusci, do hereby certify that the
foregoing transcript, pages 3 through 101, is a
complete, accurate and true record of my voice
recorded tapes taken in the aforementioned matter to
the best of my skill and ability.
Official Court Reporter
The foregoing certification does not apply to any
reproduction of the same by any means unless under the
direct control and/or direction of the certifying
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