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A little-known archive of potentially damaging tobacco industry papers is a “treasure without a treasure map,” according to one of the few lawyers familiar with it. And if attorneys representing the industry have their way, the papers on Big Tobacco stashed in that treasure trove may stay concealed in a growing mountain of document boxes. The papers detail activities of two industry trade groups, the Tobacco Institute and the Council for Tobacco Research, both effectively dissolved as part of the litigation process that led to an approximately $206 billion national tobacco settlement. New York state filed a motion to shut down the Tobacco Institute for abusing its charter as a nonprofit organization. That process was superseded by the national settlement, explains Mark Gottlieb, staff attorney at the Tobacco Products Liability Project at Northeastern University School of Law in Boston. But New York, one of the settlement states suing the industry, eventually got rights to both entities’ documents. It was left to the staff of then-New York Attorney General Dennis Vacco, and now to his successor, Elliot Spitzer, to negotiate the details of transferring the two entities’ files to state control. According to Kathleen D. Roe, state archives bureau chief in charge of the tobacco records project, New York received rough indexes, called container indexes, and file listings of the Council for Tobacco Research collection, which is in about 400 boxes. The far more voluminous Tobacco Institute materials were accompanied by a 300-page “Tobacco Institute Records Box Listing,” which so far has been unavailable to researchers. ‘PROVENANCE’ WANTED Roe says the institute boxes were simply listed in the order in which they were placed into storage. The original order of the papers — what archivists call their provenance — is lacking. “Provenance,” she says, “is the core principle for organizing archival records because you document the order of the records as they were created and stored. This lets a researcher evaluate how the organization created and used its information, and how individuals functioned within the organization. For example, one would be able to determine who held the real power and who were the decision-makers.” Gene Borio, Webmaster of tobacco.org, a comprehensive tobacco data Web site, says he believes that the real value of the document cache probably lies in material documenting payments made to independent scientific experts who wound up writing what critics regard as biased statements, letters and the like. According to Roe, a 22-year veteran of the New York State Archives, this is a complex and complicated records transfer. “It is a high-interest, high-value collection of very unusual size, which presents a daunting challenge to those who would use it,” she says. During the past 18 months, Roe has been “determining what’s there — and sorting what records came from which department” at the Tobacco Institute. Some tobacco-control advocates privately express concern about the lack of an electronic or folder-by-folder index to the collection of the type previously used with industry material of this sort. When asked about this oversight, Darren Dopp, spokesman for the New York State Attorney General’s Office in Albany says, “In retrospect, it would have been an advantageous thing to have done. We have only been here a year and a half. We’re really playing a conclusory role.” He adds, “We’re looking for the rate of document transfer to increase dramatically. We want an orderly transfer and a prompt transfer.” The lead negotiator in this effort is David M. Nocenti, counsel at the AG’s Office. According to Northwestern’s Gottlieb, “Without an index, it’s very difficult to find what you are looking for. It’s like looking for a needle in a haystack — a treasure without a treasure map. Just knowing what office a particular box came from, without document coding, it would be tremendously labor-intensive to find anything of value.” “That’s pretty appalling,” Dr. Stanton Glantz, professor of medicine at the University of California at San Francisco, says about the lack of an index. He is director of the National Tobacco Documents Library and the Center for Tobacco Research, both anti-tobacco education organizations. “Vacco was pushed into litigation, dragged kicking and screaming, very late in the game — and he cut as favorable a deal for the tobacco companies as he could, due to his ties with Philip Morris,” Glantz says, referring to the ex-AG’s tobacco case. Gottlieb and several others familiar with the litigation indicate that Vacco and his staff put forward a credible and quite thorough, albeit somewhat belated, effort on behalf of the state. According to Gottlieb, however, “it is not out of the question that discovery in currently pending cases could be used to get the index. In fact, [the trade groups] are still being named as defendants in recent cases.” Cliff Douglas, an attorney, consultant and tobacco prevention advocate in Ann Arbor, Mich., suggests that the apparent reticence to compel production of documents (and indexes) may be political. According to Douglas, New York “Gov. [George] Pataki seems to be sensitive about taking action that would rub the tobacco companies the wrong way. In New York state, the industry’s lobbying presence seems as assertive as it ever was.” New York’s tobacco document cache is not the only one recently pushed into public view. More than 14,000 boxes (about 40 million pages) in Minneapolis and 8 million pages in Guildford, England, sit in document depositories established by the Minnesota court that approved that state’s settlement with the industry. Those familiar with the New York and Minnesota documents estimate that the overlap between the collections is about 20 percent. 463 OUT OF 9,000 Of the 9,000-plus boxes of documents (roughly 27 million pages) from the bulging Tobacco Institute and Council for Tobacco Research files, the institute’s counsel, Washington, D.C.’s Covington & Burling, has transferred a combined 463 boxes from a D.C. area storage depot to the New York State Archives in Albany, according to Roe. She says the boxes are being transferred at a slow rate because of the laborious nature of the photocopying process. Nevertheless, she emphasizes that “the attorney general is working very hard to get the rest of the boxes delivered more quickly.” Dopp says materials should be transferred in their entirety, although Covington & Burling may redact some material because of attorney-client privilege issues. Both Keith A. Teel, a partner at Covington & Burling who is handling negotiations with the New York attorney general, and a spokesman for the firm declined to comment. VIRGIN TERRITORY Despite the dollars still at stake in pending tobacco litigation, and the many plaintiffs’ attorneys involved, it appears that no lawyers, no reporters and only one group of researchers have actually begun to use the archive materials. Mike Cummings, the chairman of the Department of Cancer Prevention at the National Cancer Institute in Roswell Park, N.Y., says his researchers are starting to pore over the Albany materials, despite the lack of detailed indexing. Roswell Park researchers have been adding descriptions to their Web-based collections of portions of various tobacco industry documents to make them more user-friendly. New York-based Norbert “Bert” Hirschhorn, a retired physician and public health advocate, is sanguine about what is in the collection. “It’s likely that the collection contains several jewels,” he says. He adds that many tobacco industry lawyers and law firms parked themselves at the Tobacco Institute as the so-called Committee of Counsel, to gather on special projects, to collude on public statements and so forth. PRIVILEGES Although lawyers from Covington may assert attorney-client privilege with respect to these documents, the privilege may be constrained by the dissolution of the Tobacco Institute as a client, by the implied terms of the settlement agreement, by some form of waiver or by the privilege’s crime/fraud exception. On the other hand, there may be a legitimate claim that the privilege still exists with respect to various tobacco companies. Dr. Hirschhorn says he believes that the true value of the papers will be to call to task law firms that represented the industry — including Kansas City, Mo.’s Shook, Hardy & Bacon; Jones, Day, Reavis & Pogue; New York’s Jacob, Medinger & Finnegan; and Covington — regarding possible unethical law practices, such as advising tobacco companies to suborn evidence in testimony in trials or before congressional panels, or to create erroneous impressions in the media by secretly hiring consultants. Although such bald assertions of law firm impropriety may have seemed far-fetched several years ago, the judge in the Minnesota trials ordered the release of thousands of otherwise privileged documents after the plaintiff’s submission of evidence of crime/fraud. Existing, nonarchival documentation may be sufficient for small plaintiffs’ firms doing individual representation against the tobacco companies, says Gottlieb. But large firms conducting class actions, he argues, should consider investing resources to learn what is in the documents. Doug Blanke, director of the Tobacco Law Project at William Mitchell College of Law in St. Paul, Minn., expects to find in the Tobacco Institute documents evidence regarding secret alliances and secret financial arrangements. For purposes of witness credibility, that may help identify those continuing to act as surrogates for the industry. He acknowledges that “there’s the assumption that Minnesota got everything, and so people haven’t bothered to look.” Interviews with several leading tobacco plaintiffs’ lawyers and health advocates suggest that none of them has plans to use these documents, although all are interested in learning more. Norwood “Woody” Wilner, who led a large consortium of tobacco lawyers, says that although, in most individual cases, such material may be unnecessary, there is still a lot at stake in the class actions. LOOKING FOR A GRANT For her part, Roe makes it clear that her archive welcomes help. “We’re looking for foundation or grant funding support to create finding aids to make this material available faster,” she says. Researchers are welcome to use the material they have already obtained, and “some limited direction is available.” “For a user, the most we can tell you is that there is this kind of stuff in these boxes,” she says, “though some constituencies will find this insufficient. Most researchers would prefer document-level descriptions.” She points out that generating detailed item-by-item listings for a large collection is not a typical state archival function, and that it will be up to the individual researcher to locate specific documents within a set of boxes.

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