[Intl-tobacco] Australia/US: BAT destroyed documents

[Robert Weissman]

Lawyer admits tobacco firm destroyed papers

by Fergus Shiel / Law Reporter 
The Age, 2002-08-23, via tobacco.org
http://www.theage.com.au/articles/2002/08/22/1029114163418.html

An American lawyer has conceded that the British American Tobacco
Company destroyed documents so that they could not harm the company
in any future litigation.

The admission comes just days before a court case in Australia that
will hear the company's local affiliate, BAT, continue to deny it
had any such purpose.

It was made by the former in-house counsel for the company's United
States affiliate, David Schechter, in a deposition to the US
Justice Department in Kentucky last Tuesday week.

The Justice Department is taking legal action against BAT's US
affiliate and other tobacco companies.

A copy of Mr Schechter's deposition has been filed by the Justice
Department in the US District Court for the District of Columbia.

The deposition includes the question: "And one of the benefits of
limiting such retention was that documents would not fall into the
hands of plaintiffs or the public or the newspapers, right?"

In reply, Mr Schechter said: "That was the . . . purpose of the
mental copy rule and the program as a whole."

Mr Schecter explained that the mental copy rule was to assume that
everything you wrote could end up in litigation or on the front
page of the local newspaper.

Later in the transcript, Mr Schechter agreed he wanted to know if
it was permissible under Australian law to destroy documents, as
the desirable result of that would be that plaintiffs could not use
them in litigation.

In April this year, BAT lost a landmark smoking-related damages
case brought by dying Melbourne lung cancer sufferer Rolah McCabe
in the Victorian Supreme Court.

A jury awarded Mrs McCabe $700,000 after Justice Geoffrey Eames
found she was denied a fair trial because of the destruction of
relevant documents.

Mr Schechter was found by Justice Eames to have played "a very
significant role" with respect to BAT's document retention policy
in Australia.

Mr Schechter left BAT's US affiliate at the end of 1994. He later
became a consultant to BAT's British parent company, BATCo, where
he has previously said he advised on product liability litigation
outside the US.

He was also in charge of BATCo's document retention policy. BAT's
appeal against Justice Eames' decision in the McCabe case will
start before a three-member bench of the Court of Appeal on Monday.
Mrs McCabe is represented by Slater & Gordon.

In its notice of appeal, the company says Justice Eames ought not
to have found that its document policy was intended to prejudice
the success of any future plaintiffs. It is appealing against the
court's ruling on more than 80 grounds.

A spokesman for BAT's lawyers, Corrs Chambers Westgarth, said last
night that they were not in a position to comment on the matter, as
it was under appeal.

BAT director of corporate affairs John Galligan said last night it
would be inappropriate to comment given the closeness of the
appeal.

Clayton Utz, one of Australia's largest firms, was advising BAT on
the case and its role in the affair is being investigated by New
South Wales' legal ombudsman. The firm denies any improper
conduct.

Mr Schechter visited Australia several times in the early 1990s to
assist BAT, then known as WD & HO Wills, to defend tobacco
litigation cases.