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Big tobacco may not have been slammed with the multibillion-dollar monetary sanctions that the Justice Department had sought in its seven-year-old racketeering suit, but the court’s new demands for document disclosure could bear hidden gold for plaintiffs’ lawyers. U.S. District Judge Gladys Kessler’s recent 1,742-page opinion found that nine cigarette manufacturers and two trade groups broke the law by conspiring for more than half a century to hide the truth about smoking’s harmful health effect. U.S. v. Tobacco-Free Kids Action Fund, No. 99-2496 (D.D.C.). Much has been made of the racketeering finding, the lack of monetary damages and the harsh words Kessler fired at tobacco attorneys. 18-page order But a little-reported section of Kessler’s accompanying 18-page remedial order detailing disclosure requirements far exceeds anything the tobacco defendants have been ordered to do to make their internal company communications easily accessible to the public-and plaintiffs’ lawyers. The judge also extended the period that the companies must maintain their public databases. “Extending those obligations, and subjecting all defendants to similar, ongoing disclosure obligations, will work to prevent and restrain them from engaging in future frauds,” wrote Kessler, who criticized the companies’ and their lawyers’ “suppression and concealment of information” as integral to the “overarching scheme to defraud.” More than a third of Kessler’s remedial order details the manner in which one British and three American defendants must make public “the documents they produce or use in future litigation or administrative actions, with certain safeguards to protect privileged and confidential trade secret information,” and extended the existing end dates for maintaining publicly accessible databases to Sept. 1, 2016. The tobacco companies currently maintain document sites prescribed by the 1998 Master Settlement Agreement that settled claims against the industry brought by the states’ attorneys general. Bench’s sharp ‘bite’ Kessler ordered existing document depositories in Guildford, England, and Minneapolis to widen access to researchers. These depositories were set up as a result of litigation that Minnesota and Minnesota Blue Cross Blue Shield brought against several tobacco companies. She also ordered the companies to send hard copies of everything in their Web databases to the Minnesota depository. Pioneer anti-smoking advocate John F. Banzhaf III, a public interest law professor at George Washington University who is not counsel of record in the matter, called Kessler’s disclosure requirements “one of a number of things in the opinion that may come back to bite the tobacco industry’s ass. “Using these additional documents, we will strike gold by uncovering more incriminating documents, incriminating statements and so forth,” said Banzhaf, who is also the executive director and chief counsel of Action on Smoking and Health, the legal-action arm of the anti-smoking community. It was documents that revealed “tobacco industry executives sitting around and saying, ‘It’s a drug, we’re in the drug business,’ ” for instance, that opened the door to the industry’s liability, he said. David Betteridge, a spokesman for the London-based British American Tobacco PLC, said in an e-mail that “the appeal process has started with Judge Kessler being asked to stay her orders.” The issue of document disclosure “is treading very old ground,” Betteridge said, pointing out that “there are some 50 years’ worth of documents already in the public domain-either in Minnesota or our Guildford document centre,” as a result of the Master Settlement Agreement. He added that “although we didn’t put the Guildford documents online, other people have-almost certainly every page. There was no ‘smoking gun’ before; there is none now.” Lisa Gonzalez, spokeswoman for Altria Group Inc. and Philip Morris USA Inc., said that the company would not comment beyond the statement issued by William S. Ohlemeyer, Altria Group vice president and associate general counsel, in response to Kessler’s final judgment, which said the companies “are studying the lengthy decision.”

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