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In a highly secure room in St. Louis, tobacco titan Philip Morris Cos. keeps reams of top-secret documents on everything from how it makes cigarettes to its marketing strategies. The trade secrets in the room are “the equivalent of Coca-Cola’s formula … worth millions of dollars to our competitors,” Philip Morris attorney Ezra Rosenberg told a Palm Beach, Fla., circuit court judge Friday. But Fort Lauderdale, Fla., lawyer Gary Farmer Jr. wants to see those documents as part of a deceptive trade practices suit he filed last year against the tobacco giant. He claims Philip Morris is thwarting him. The two sides have been haggling for three months over the issue. On Friday, Judge Lucy Chernow Brown ordered Philip Morris to give Farmer copies of 409,000 nonconfidential documents and 26,000 confidential documents within 20 days. She ordered Farmer to maintain their confidentiality. But Brown said she’ll have to schedule another hearing for the parties to figure out how the tobacco company will provide Farmer with hundreds more documents it classifies as “highly confidential.” The legal maneuvering stems from a lawsuit Farmer filed on behalf of Floridians John P. Hines and Delores Howell, of Martin and Palm Beach counties respectively, seeking damages for all consumers who purchased Philip Morris’ Marlboro Lights and Ultra Lights in Florida. The plaintiffs are trying to recover the purchase price of cigarettes that they bought over many years, on the grounds that the cigarette maker falsely marketed the two brands as lower in tar and nicotine than regular cigarettes. The suit contends that the products did not deliver substantially lower levels of either compound. In falsely marketing the products, Philip Morris violated Florida’s Deceptive and Unfair Trade Practices Act, they contend. In February, Brown granted the plaintiffs’ motion for class certification and appointed Farmer, a partner at Gillespie, Goldman, Kronengold & Farmer in West Palm Beach, Fla., and Stephen Sheller, a partner at Sheller, Ludwig & Badey in Philadelphia, lead counsel for the class. The class consists of consumers who bought Marlboro Lights and Ultra Lights in Florida from 1971 to the date of her order. Farmer says 1971 is the year Philip Morris began marketing Marlboro Lights. Light cigarettes account for 85 percent of cigarette sales, Farmer says, and Marlboro has the dominant share of the market. He estimates there will be at least 1 million people included in the class. STALLING TACTICS? The struggle over release of the documents began in March when Farmer filed a motion asking Philip Morris to produce all documents that it turned over in a similar case in Illinois, regardless of how they are classified. Farmer also requested copies of all depositions taken in the Illinois case. Philip Morris objected, saying the plaintiffs’ request sought disclosure of documents protected from discovery by the attorney-client privilege, the work-product doctrine and other privileges. Philip Morris lawyers argued that the documents requested would reveal trade secret and other commercially protected information. The company also balked at seemingly innocuous language in Farmer’s request. “Philip Morris objects to the term ‘person’ … to the term ‘document’ … to the phrase ‘all documents.’” Farmer called these stalling tactics. “They’ve had years to go over the documents that are responsive to this request” because of the similar class action suit filed in Illinois, he told Brown. Philip Morris has said it will work with Farmer to develop a procedure for release of relevant information, a pledge that Rosenberg, a partner at Dechert Price & Rhoads in Princeton, N.J., reiterated on Friday. But Farmer said he’s unwilling to travel to the secure room in St. Louis, or to another such room in Richmond, Va., to review records. Doing so would tip his hand regarding litigation strategy, he said in an interview. “That’s an invasion of my work product.” PRIVILEGE LOG Philip Morris’ lawyers waived their right to claim that the documents are privileged by not producing a privilege log, as required by the Florida Rules of Civil Procedure, Farmer argued in court. Lawyers who claim that documents are exempt from disclosure during discovery must submit a log explaining in general terms the nature of the document and the privilege claimed. Thus, the company should have to release all the records he seeks regardless of whether they are classified, Farmer argued. Rosenberg called the privilege log issue a “red herring,” adding that even the logs are “highly privileged” information. “We’re going to produce documents,” he said at Friday’s hearing. “The only issue is procedure.” Brown indicated that Farmer’s argument about the privilege log had merit. But she declined to rule the privilege was waived. “It’s clear they’re trying to protect these as trade secrets,” she said. The judge said Philip Morris will have to produce the “highly confidential” documents, but left the details for another day.

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