UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
____________________________________ ) UNITED STATES OF AMERICA, ) ) Plaintiff, ) ) v. ) Civil Action No. 99-2496 (PLF) ) PHILIP MORRIS USA INC., et al., ) ) Defendants. ) ____________________________________)
MEMORANDUM OPINION AND ORDER #114 – REMAND
The Minnesota Tobacco Document Depository (“the Depository”), established
in 1995, has for years served as a third-party custodian of documents produced by tobacco
companies and research institutions (“tobacco entities”) in connection with smoking and
health-related lawsuits. See MINNESOTA TOBACCO DOCUMENT DEPOSITORY,
https://www.mtddonline.org/ (last visited Oct. 8, 2021). The Depository closed to the public on
August 31, 2021. In the coming months, all materials currently housed at the Depository will be
relocated and the Depository will be shut down. The Minnesota Historical Society (“MHS”) will
take custody of many of these materials. The tobacco companies that are defendants in this
litigation will take custody of certain remaining materials that MHS does not take. In addition,
the University of California, San Francisco (“UCSF”) is prepared to take custody of certain
additional documents and store them in their “Truth Tobacco Industry Documents” archive.
According to the Administrator of the Depository, the Depository currently
houses approximately 851 boxes of secured documents, over which the tobacco entities have asserted privilege during the course of this litigation and Minnesota state court proceedings.
These documents have never been accessible to the public or to the Depository staff. They are
stored in a secure room that the Depository staff may not access, except in the presence of a
tobacco entity representative. MHS will not take custody of these privileged documents after the
Depository shuts down. The Court therefore must determine what to do with these privileged
documents.
Following consultation with the Administrator of the Depository, the Court is
considering several options for disposing of the privileged documents. First, the documents
could be returned to the tobacco entities. The Court understands that the tobacco companies
currently in existence are prepared to take custody of their own privileged documents and to
preserve those documents in perpetuity if the Court so orders. Second, UCSF could take custody
of some or all of the privileged documents. The Court understands that UCSF has informed the
Depository that it would like to take custody of these documents and can keep them in a secure
location that is inaccessible to the public. Third, the privileged documents could be destroyed.
One consideration in evaluating these options is whether the privileged documents
might be relevant to future litigation. If not, the documents presumably could be destroyed. If
there is any significant likelihood that the privileged documents would be relevant to future
litigation, however, they should be preserved. This may weigh in favor of the tobacco entities
taking possession of the documents. As the parties who asserted privilege over the documents,
they are best situated to identify materials responsive to any future subpoena or court order. Any
other custodian, such as UCSF, would lack authority to review the privileged documents or
retrieve them in response to such an order.
2 Another consideration relates to the tobacco companies and research institutions
that are no longer in existence; namely, Liggett Group, Inc., Tobacco Institute, Inc., and the
Council for Tobacco Research. Some of the privileged documents belong to these former
entities. The existing tobacco companies are prepared to take custody of their own privileged
documents, but it is unclear whether they can also take custody of the former entities’
documents. The Court understands that the existing tobacco companies have identified points of
contact for each of these former entities whom they can contact regarding the privileged
documents. The Court also notes that if the existing tobacco companies take custody only of
their own privileged documents, UCSF might be able to take custody of any remaining
documents for which no existing entity claims ownership.
Under any approach that involves the tobacco entities taking custody of particular
boxes of privileged documents, the entities would need to undertake a review of the materials in
the secured documents room. The following table summarizes the breakdown of boxes of
privileged documents according to the Depository’s records. This table suggests that there are at
least 24 boxes associated with Liggett Group, Inc., Tobacco Institute, Inc., and the Council for
Tobacco Research, which are no longer in existence, and at least 131 boxes that cannot currently
be associated with a single identifiable entity. The Court also understands that there are
additional documents in the secured documents room that the Depository staff has not had the
opportunity to review and categorize, due to restrictions on accessing the room. The Depository
staff therefore cannot provide a precise accounting of the materials in that room.
Description Number of boxes Liggett Tobacco Company 8 Tobacco Institute, Inc. 12 Council for Tobacco Research 4
3 American Tobacco Company 42 Lorillard Company 22 Brown & Williamson Tobacco Company 271 British American Tobacco Company 97 British American Industries 22 R.J. Reynolds Company 136 Philip Morris Company 105 Trial Exhibits 23 Dr. Huber 12 Glossaries 4 R.J. Reynolds Company Bates Number Lists 1 Multi-party 3 Archived Diskettes, etc. 4 Blue (privileged) / Green (unredacted) folders 48 Secured Document Room Notebooks 2 Miscellaneous 35 Total: 851
The Court wishes to receive the views of all parties to this litigation concerning
the disposition of privileged documents currently housed in the Depository. The Court therefore
will direct counsel for the parties to meet and confer and file a joint status report on or before
October 29, 2021. Counsel for the tobacco companies are directed to contact the representatives
of the former tobacco companies and research institutions and solicit their views on the
disposition of the documents over which they asserted privilege. The joint status report should
address the three approaches discussed in this order for disposing of the privileged documents, or
any alternatives that the parties might suggest; the considerations identified in this order bearing
on those approaches; and the views of the entities no longer in existence. It should set forth the
parties’ proposed approach for disposing of the privileged documents and any procedures or
4 requirements the parties recommend that the Court impose. The parties should also indicate in
the joint status report whether they believe a status conference would be useful.
In light of the foregoing, it is hereby
ORDERED that counsel for the parties are directed to meet and confer concerning
the disposition of the privileged documents currently housed at the Minnesota Tobacco
Document Depository; it is
FURTHER ORDERED that counsel for the tobacco companies shall contact
representatives of Liggett Group, Inc., Tobacco Institute, Inc., and the Council for Tobacco
Research to solicit their views on the disposition of privileged documents housed at the
Minnesota Tobacco Document Depository over which they have asserted privilege; and it is
Free access — add to your briefcase to read the full text and ask questions with AI
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
____________________________________ ) UNITED STATES OF AMERICA, ) ) Plaintiff, ) ) v. ) Civil Action No. 99-2496 (PLF) ) PHILIP MORRIS USA INC., et al., ) ) Defendants. ) ____________________________________)
MEMORANDUM OPINION AND ORDER #114 – REMAND
The Minnesota Tobacco Document Depository (“the Depository”), established
in 1995, has for years served as a third-party custodian of documents produced by tobacco
companies and research institutions (“tobacco entities”) in connection with smoking and
health-related lawsuits. See MINNESOTA TOBACCO DOCUMENT DEPOSITORY,
https://www.mtddonline.org/ (last visited Oct. 8, 2021). The Depository closed to the public on
August 31, 2021. In the coming months, all materials currently housed at the Depository will be
relocated and the Depository will be shut down. The Minnesota Historical Society (“MHS”) will
take custody of many of these materials. The tobacco companies that are defendants in this
litigation will take custody of certain remaining materials that MHS does not take. In addition,
the University of California, San Francisco (“UCSF”) is prepared to take custody of certain
additional documents and store them in their “Truth Tobacco Industry Documents” archive.
According to the Administrator of the Depository, the Depository currently
houses approximately 851 boxes of secured documents, over which the tobacco entities have asserted privilege during the course of this litigation and Minnesota state court proceedings.
These documents have never been accessible to the public or to the Depository staff. They are
stored in a secure room that the Depository staff may not access, except in the presence of a
tobacco entity representative. MHS will not take custody of these privileged documents after the
Depository shuts down. The Court therefore must determine what to do with these privileged
documents.
Following consultation with the Administrator of the Depository, the Court is
considering several options for disposing of the privileged documents. First, the documents
could be returned to the tobacco entities. The Court understands that the tobacco companies
currently in existence are prepared to take custody of their own privileged documents and to
preserve those documents in perpetuity if the Court so orders. Second, UCSF could take custody
of some or all of the privileged documents. The Court understands that UCSF has informed the
Depository that it would like to take custody of these documents and can keep them in a secure
location that is inaccessible to the public. Third, the privileged documents could be destroyed.
One consideration in evaluating these options is whether the privileged documents
might be relevant to future litigation. If not, the documents presumably could be destroyed. If
there is any significant likelihood that the privileged documents would be relevant to future
litigation, however, they should be preserved. This may weigh in favor of the tobacco entities
taking possession of the documents. As the parties who asserted privilege over the documents,
they are best situated to identify materials responsive to any future subpoena or court order. Any
other custodian, such as UCSF, would lack authority to review the privileged documents or
retrieve them in response to such an order.
2 Another consideration relates to the tobacco companies and research institutions
that are no longer in existence; namely, Liggett Group, Inc., Tobacco Institute, Inc., and the
Council for Tobacco Research. Some of the privileged documents belong to these former
entities. The existing tobacco companies are prepared to take custody of their own privileged
documents, but it is unclear whether they can also take custody of the former entities’
documents. The Court understands that the existing tobacco companies have identified points of
contact for each of these former entities whom they can contact regarding the privileged
documents. The Court also notes that if the existing tobacco companies take custody only of
their own privileged documents, UCSF might be able to take custody of any remaining
documents for which no existing entity claims ownership.
Under any approach that involves the tobacco entities taking custody of particular
boxes of privileged documents, the entities would need to undertake a review of the materials in
the secured documents room. The following table summarizes the breakdown of boxes of
privileged documents according to the Depository’s records. This table suggests that there are at
least 24 boxes associated with Liggett Group, Inc., Tobacco Institute, Inc., and the Council for
Tobacco Research, which are no longer in existence, and at least 131 boxes that cannot currently
be associated with a single identifiable entity. The Court also understands that there are
additional documents in the secured documents room that the Depository staff has not had the
opportunity to review and categorize, due to restrictions on accessing the room. The Depository
staff therefore cannot provide a precise accounting of the materials in that room.
Description Number of boxes Liggett Tobacco Company 8 Tobacco Institute, Inc. 12 Council for Tobacco Research 4
3 American Tobacco Company 42 Lorillard Company 22 Brown & Williamson Tobacco Company 271 British American Tobacco Company 97 British American Industries 22 R.J. Reynolds Company 136 Philip Morris Company 105 Trial Exhibits 23 Dr. Huber 12 Glossaries 4 R.J. Reynolds Company Bates Number Lists 1 Multi-party 3 Archived Diskettes, etc. 4 Blue (privileged) / Green (unredacted) folders 48 Secured Document Room Notebooks 2 Miscellaneous 35 Total: 851
The Court wishes to receive the views of all parties to this litigation concerning
the disposition of privileged documents currently housed in the Depository. The Court therefore
will direct counsel for the parties to meet and confer and file a joint status report on or before
October 29, 2021. Counsel for the tobacco companies are directed to contact the representatives
of the former tobacco companies and research institutions and solicit their views on the
disposition of the documents over which they asserted privilege. The joint status report should
address the three approaches discussed in this order for disposing of the privileged documents, or
any alternatives that the parties might suggest; the considerations identified in this order bearing
on those approaches; and the views of the entities no longer in existence. It should set forth the
parties’ proposed approach for disposing of the privileged documents and any procedures or
4 requirements the parties recommend that the Court impose. The parties should also indicate in
the joint status report whether they believe a status conference would be useful.
In light of the foregoing, it is hereby
ORDERED that counsel for the parties are directed to meet and confer concerning
the disposition of the privileged documents currently housed at the Minnesota Tobacco
Document Depository; it is
FURTHER ORDERED that counsel for the tobacco companies shall contact
representatives of Liggett Group, Inc., Tobacco Institute, Inc., and the Council for Tobacco
Research to solicit their views on the disposition of privileged documents housed at the
Minnesota Tobacco Document Depository over which they have asserted privilege; and it is
FURTHER ORDERED that on or before October 29, 2021, counsel for the parties
shall file a joint status report that addresses the approaches discussed in this order for disposing
of the privileged documents, or any alternatives that the parties might suggest; the considerations
identified in this order bearing on those approaches; the views of the tobacco entities no longer in
existence; the parties’ proposed approach for disposing of the privileged documents; any
procedures or requirements the parties recommend that the Court impose in disposing of the
privileged documents; and whether a status conference would be useful.
SO ORDERED.
/s/ PAUL L. FRIEDMAN United States District Judge
DATE: October 8, 2021