United States v. Philip Morris USA

• Court: District Court, District of Columbia
• Decided: August 14, 2025
• Docket: Civil Action No. 1999-2496
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA,

Plaintiff, No. 99-cv-2496-PLF-MAU v.

PHILIP MORRIS USA INC., et al.,

Defendants.

REPORT AND RECOMMENDATION

The District Court referred this case to this Court to conduct an in camera review of certain

documents from the Minnesota Tobacco Document Depository (“Depository”) in connection with

the Parties’ consent judgment in State of Minnesota v. Philip Morris Inc. et al, No. C1-94-8586

(Dist. Ct. Ramsey Cnty., Minn.). See Memo. Op. & Order # 119 – Remand, ECF No. 6479 (“Order

No. 119”); Memo Op. & Order # 120 – Remand, ECF No. 6480 (“Order No. 120”); Order # 133

– Remand: Referral to Magistrate Judge, ECF No. 6534 (“Order No. 133”). This Court has

completed its review and makes the following recommendations.

BACKGROUND

On August 18, 2011, the District Court assumed jurisdiction and supervision over the

Depository, including determining the final disposition of the documents contained therein. Order

No. 119 at 1. 1 There were five categories of documents in the Depository, four of which were

being held in a nonpublic, locked room (“Secure Room”). Id. at 2. Those categories were:

1 Citations are to the page numbers in ECF headers.

1 1. Defendants R. J. Reynolds Tobacco Company’s and Philip Morris USA, Inc.’s

documents;

2. Liggett Group LLC, B.A.T. Industries p.l.c., and British American Tobacco Company

Ltd.’s documents;

3. Council for Tobacco Research (“CTR”) and Tobacco Institute (“TI”) documents;

4. The remaining Secure Room documents (“Uncategorized Documents”); and

5. Judge Fitzpatrick’s Chambers’ Files from the Minnesota litigation (“Chambers’

Files”).

Id. at 2–3. The Parties reached an agreement as to the disposition of the first three categories. Id.

at 3. The District Court then ordered a multi-step process for review of Categories 4 and 5. Id. at

4–7; see also Order No. 120 at 1–3. The District Court’s referral to this Court relates to Category

5, the Chambers’ Files. See Order No. 133.

On March 29, 2022, the Parties submitted six privilege logs corresponding to various

documents in compliance with the Court’s multi-step process. See ECF No. 6483. Two of those

privilege logs correspond to the Category 4 documents, see ECF Nos. 6483-1; 6483-2, whereas

four of the logs correspond to Category 5 documents. See ECF Nos. 6483-3; 6483-4; 6483-5;

6483-6. The Parties also stated, “Copies of the designated documents from the ‘Chambers Files’

are being securely transmitted to the Court in hard copy today, as required by Order #120-

Remand.” ECF No. 6483 at 4. In other words, the Parties filed their privilege logs on the public

docket and notified the Court that they were transmitting the underlying documents in hard copy

to the Court.

On December 5, 2023, the District Court entered its referral Order to this Court. Order No.

133. The Order requires this Court to conduct an “in camera review of the Chambers’ Files

2 documents . . . for a report and recommendation about the appropriate disposition of the remaining

documents, including whether any documents previously designated as privileged or otherwise

shielded from public disclosure are appropriate for public disclosure.” Id. at 2. In connection with

that Order, the District Court transmitted the relevant documents from the Chambers’ Files to this

Court, plus hard copies of the privilege logs submitted at ECF No. 6583.

During the course of its review, this Court found that one of the binders was missing.

Specifically, the label on the binder from R. J. Reynolds Tobacco Company indicated the binder

was Volume 2 of 2. Because it appeared that neither the District Court nor this Court had ever

received Volume 1 of 2 from the Parties, this Court held a status conference on June 6, 2025 to

resolve the issue. See Min. Entry (June 6, 2025). R. J. Reynolds subsequently submitted the

missing Volume 1 binder.

ANALYSIS

This Court has now reviewed each page of the documents contained in the three physical

binders in its possession. Those binders contain the underlying documents referenced in the

privilege logs of two of the Parties: 1) Altria and PM USA (ECF No. 6483-3); and 2) R. J. Reynolds

Tobacco Company (ECF No. 6483-4). 2 In accordance with the District Court’s referral Order, the

Court conducted a two-part analysis into each document.

First, the Court reviewed each page of the Chambers’ Files for any of Judge Fitzpatrick’s

judicial notes or marginalia that need to be redacted or withheld on the basis of privilege or

2 The Parties submitted two additional privilege logs. Those logs were from: 1) B.A.T. Industries p.l.c. and British American Tobacco Company Ltd.; and 2) the Tobacco Institute. See ECF No. 6483 at 3–4. The Parties noted that those privilege logs were prepared and “sent to the Defendants’ outside counsel to be filed with the Court.” Id. at 3 (regarding the B.A.T Industries’ privilege log); id. at 4 (regarding the Tobacco Institute’s privilege log). It does not appear the corresponding documents were ever submitted to the Court. Thus, those documents do not appear to be part of the Chambers’ Files to be reviewed.

3 confidentiality. See Order No. 119 at 6. The Court is mindful of the need to “safeguard the unique

institutional interests in making Judge Fitzpatrick’s judicial papers publicly accessible, subject to

defendants’ and non-party tobacco entities’ legitimate claims of privilege and confidentiality.”

Order No. 120 at 2. Thus, the Court analyzed any notation that appeared on the 73 documents

comprising approximately 2,063 pages. The documents contained occasional scribbles, small

margin notes, check marks, and highlights. Those marks appear to have little-to-no substantive

meaning nor to reflect any privileged or confidential information. Accordingly, this Court

concludes that the Chambers’ Files before it do not contain any judicial notes or marginalia that

need to be redacted or withheld.

Second, this Court broadly reviewed the underlying documents against the privilege logs

the Parties submitted at ECF No. 6483. Pursuant to the instructions set forth in Order No. 120, the

Court treated the Chambers’ Files “as presumptively privileged or confidential.” Order No. 120

at 2. In other words, unless a document clearly reflected no basis for a claim of privilege,

protection, or confidentiality, the Court did not analyze the underlying information in each

document for privilege. The Court compared each of the documents against the corresponding

entries in the privilege logs to determine: 1) whether the entry correctly identified the date, author,

and description of the document; and 2) whether the putative privilege listed in the entry appeared

accurate based on the form and content of the document.

Based on a review applying this methodology, this Court has concluded that none of the

73 documents that the Parties submitted are appropriate for public disclosure. Of course, the Court

acknowledges that its in camera review does “not preclude plaintiffs from making separate

objections to defendants’ and non-party tobacco entities’ designations on their own accord after

reviewing the privilege logs.” Id. at 2; see also Order No. 119 at 7. The Court is satisfied at this

4 time, however, that the Parties have appropriately designated the relevant Chambers’ Files as

privileged or otherwise shielded from public disclosure.

CONCLUSION

This Court has concluded its in camera review. The Court hereby recommends that the

relevant Chambers’ Files discussed herein should remain shielded from public disclosure on the

basis of the Parties’ claims for privilege or confidentiality.

SO ORDERED.

Date: August 14, 2025 ___________________________________ MOXILA A. UPADHYAYA UNITED STATES MAGISTRATE JUDGE

5 REVIEW BY THE DISTRICT COURT

The Parties are hereby advised that under Local Civil Rule 72.3(b), any party who objects

to the proposed findings or recommendations herein must file written objections within fourteen

days of being served with a copy of the Report and Recommendation. Objections must specifically

identify the portion of the recommendation to which the objection pertains and the basis for the

objection. The Parties are further advised that they may waive their right of appeal from an order

of the District Court adopting such findings and recommendations if the Parties fail to file timely

objections to the findings and recommendation set forth in this Report and Recommendation. See

Thomas v. Arn, 474 U.S. 140, 142 (1985).

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