Litigation Documents: Texas: Plaintiff's Motion To Deem Privileges, If Any, Waived For Failure To Produce Privilege Logs (3/13/97)

UNITED STATES DISTRICT COUR

EASTERN DISTRICT OF TEXAS

TEXARKANA DIVISION

THE STATE OF TEXAS,

Plaintiff,

THE AMERICAN TOBACCO COMPANY; R.J. REYNOLDS TOBACCO COMPANY; BROWN & WILLIAMSON TOBACCO CORPORATION; B.A.T. INDUSTRIES, P.L.C.; PHILIP MORRIS, INC.; LIGGETT GROUP, INC.; LORILLARD TOBACCO COMPANY, INC.; UNITED STATES TOBACCO COMPANY; HILL & KNOWLTON, INC.; THE COUNCIL FOR TOBACCO RESEARCH - USA, INC. (Successor to Tobacco Institute Research Committee); and THE TOBACCO INSTITUTE, INC.

Defendants.

Civil Action No. 5:96CV91

JUDGE: DAVID G. FOLSOM

MAGISTRATE JUDGE: WENDELL C. RADFORD

PLAINTIFF’S MOTION TO DEEM PRIVILEGES, IF ANY,
WAIVED FOR FAILURE TO PRODUCE PRIVILEGE LOGS

Plaintiff, the State of Texas, respectfully requests that this Court order that any privileges allegedly attached to documents and things are waived by certain Defendants’ [ United States Tobacco Co. and Hill & Knowlton, Inc.] failure to produce any privilege logs.

Article Two of the Civil Justice Expense and Delay Reduction Plan of the Eastern District of Texas requires disclosure of a privilege log. Article Two states, in part:

There is no duty to disclose privileged documents. Privileged documents or information shall be identified and the basis for the claimed privilege shall be disclosed.

Judge Folsom, in his January 3, 1997, "Order Modifying Magistrates Discovery Order," reiterated and clarified the requirement to disclose privilege logs. In that Order, Judge Folsom specifically ordered:

Privileged documents or information shall be identified and the basis for the claimed privilege … disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection.

January 3, 1997 Order Modifying Magistrates Discovery Order, at 2-3.

Nevertheless, without excuse, two Defendants have not identified in any sort of privilege log, a single document to which they claim a privilege. They have further objected to and refused to produce privilege logs from other smoking and health litigation.

Documents that are likely to bear significantly on any claim or defense in this case should have been produced by June 5, 1996, the original Court ordered disclosure date. Defendants should have either produced the documents then or, if they claimed they some privilege, they should have produced a privilege log identifying these documents and the basis for the privilege.

Defendants’ refusals to produce documents and a privilege log are flagrant abuses of discovery and openly contemptuous of this Court’s Order. Plaintiff conferred with Defendants’ Liaison counsel requesting compliance with the Court’s orders in the letters attached as exhibits "A" and "B," all to no avail.

Defendants, United States Tobacco Company and Hill & Knowlton, Inc. have failed to provide any privilege log for documents. Hill & Knowlton has apparently filed something in camera related to "document indices databases." This filing does not meet the requirements discussed above.

If this filing is a privilege log, it is inadequate for two separate reasons. First, the filing does not, "enable other parties to assess the applicability of the privilege or protection," [ Order Modifying Magistrates Discovery Order of January 3, 1997, at p.2-3.] because it was submitted to the Court under seal. The State therefore cannot determine the validity of any assertion of privilege. Second, the description supplied by Hill & Knowlton suggests that this is not a document privilege log, but rather concerns the in camera inspection of their "4A" type document indices.

For Defendants’ failure to identify any privileged documents or the basis of any claim of privilege, the State respectfully requests that this Court order that these Defendants have waived any claims of privilege concerning documents and information, pursuant to Fed. R. Civ. P. 37(b)(2) and that Defendants be ordered to disclose all documents that are likely to bear significantly on any claim or defense in this case, as well as all documents responsive to the State of Texas’ Requests for Production of Documents. And, failing complete production as required by the Plan and this Court’s prior Orders, the State of Texas respectfully requests an appropriate sanction of striking Defendants’ pleadings.

Respectfully submitted:

DAN MORALES

Attorney General of Texas

Texas Bar No.: 14417450

JORGE VEGA

First Assistant Attorney General

Texas Bar No.: 20533800

JAVIER AGUILAR

Special Assistant Attorney General

Texas Bar No.: 00936300

TOM PERKINS

Chief, Consumer Protection Division

Texas Bar No.: 15790850

HARRY G. POTTER III

Special Assistant Attorney General

Texas Bar No.: 16175300

P.O. Box 12548

Capitol Station

Austin, Texas 78711-2548

512.463.2191

512.463.2063 Fax

JOHN M. O’QUINN, P.C.

440 Louisiana St., Suite 2300

Houston, Texas 77002

713.223.1000

713.222.6903 Fax

Texas Bar No.: 15296000

JOHN EDDIE WILLIAMS JR.

8441 Gulf Freeway, Suite 600

Houston, Texas 77017

713.649.6464

713.943.6226 Fax

Texas Bar No.: 21600300

WAYNE REAUD

REAUD, MORGAN & QUINN, INC.

801Laurel

Beaumont, Texas 77701

409.838.1000

409.833.8236 Fax

Texas Bar No.: 16642500

HAROLD W. NIX

NIX LAW FIRM

205 Linda Drive

P. O. Box 679

Daingerfield, Texas 75638

903.645.7333

903.645.5389 Fax

Texas Bar No.: 15041000

HUGH E. MCNEELY, of Counsel for

Provost & Umphrey Law Firm, L.L.P.

2901 Turtle Creek Drive, Suite 201

Port Arthur, Texas 77642

409.727.0800

409.727.7671 Fax

Louisiana Bar No.: 10,628

GRANT KAISER

KAISER & MORRISON, P.C.

Suite 1440 Lyric Centre

440 Louisiana Street

Houston, Texas 77002-1634

713.223.0000

713.223.440 Fax

State Bar No.: 11078900

____________________________

WALTER UMPHREY, P.C. [ By Grant Kaiser with the permission of Walter Umphrey.]

490 Park

P. O. Box 4905

Beaumont, Texas 77074

409.835.6000

409.838.8888 Fax

Texas Bar No.: 20380000

ATTORNEY-IN-CHARGE

CERTIFICATE OF SERVICE

I hereby certify compliance with Fed. R. Civ. P. 5 and Case Management Order of November 5, 1996, that a true a correct copy of the foregoing document and diskette has been sent by overnight delivery service and filed on March 13, 1997, to the following:

Administrative Liaison Counsel for All Defendants:

Howard Waldrop

Atchley, Russell, Waldrop & Hlavinka, L.L.P.

1710 Moores Lane

P. O. Box 5517

Texarkana, TX 75505-5517

903.792.8246

903.792.5801 Fax

Respectfully submitted,

_________________________

Grant Kaiser

UNITED STATES DISTRICT COUR

EASTERN DISTRICT OF TEXAS

TEXARKANA DIVISION

THE STATE OF TEXAS,

Plaintiff,

Defendants.

Civil Action No. 5:96CV91

JUDGE: DAVID G. FOLSOM

MAGISTRATE JUDGE: WENDELL C. RADFORD

ORDER GRANTING PLAINTIFF’S MOTION TO DEEM PRIVILEGES WAIVED FOR FAILURE TO PRODUCE PRIVILEGE LOGS

Plaintiff’s Motion to Deem Privileges Waived for Failure to Produce Privilege Logs was considered by the Court today. After considering all filings related to this motion, arguments, if any, of counsel and applicable law, the Court is of the opinion the Motion should be granted.

IT IS THEREFORE ORDERED that all privileges as to documents and information that may have been asserted in this action by Defendants United States Tobacco Company and Hill & Knowlton, Inc., are hereby deemed waived. It is further,

ORDERED that Defendants United States Tobacco Company and Hill & Knowlton, Inc., shall produce all documents likely to bear significantly on any claim or defense in this cause and all documents responsive to the State of Texas’ Requests for Production of Documents within ___ days of this order. It is further

ORDERED, given Defendants United States Tobacco Company and Hill & Knowlton, Inc., failure to comply with the Plan and prior Court orders, that their failure to comply with this Order, appropriate sanctions, including striking of their pleadings, will be ordered.

SIGNED THIS DAY OF , 1997.

__________________________________________

MAGISTRATE JUDGE WENDELL C. RADFORD

UNITED STATES DISTRICT COURT