On 25 March, 2004, the Court of Appeal ordered that Andrew Foyle, a Lovells litigation partner, answer questions on document retention advice given to British American Tobacco (BAT) in respect of possible litigation. This is, as the judge at first instance acknowledged, a virtually unprecedented step. It represents, following on from the recent Three Rivers decisions, a further incursion on the scope of privilege.
The judgment, USA v Philip Morris and BAT [2004]), relates to a letter of request submitted by the US in proceedings against various tobacco companies under the Racketeer Influenced and Corrupt Organisations Law. It is anticipated that the sum claimed will amount to at least $289bn (£161.3bn), making it one of the largest cases ever brought in the US.
