Tobacco Documents Online

Sommers - direct 11 1! worthwhile to put in confidentiality requests throughout the course so why don't we treat the 3 ' ~ whole deposition as confidential for the moment I 4 and then we will see. 5 MR. EDELL: It's my understanding, 6 and I don't have the order before me, that you 7 have ten days from the receipt of the transcript, 8 is it, to designate any portion of the deposition 9 as confidential. Is that right, counsel? 10 MR. NORTHRIP: I'm not certain 11 whether that's right but I would be happy to work 12 under that arrangement if it were agreeable with 13 Mr. Hartzell. 14 MR. HARTZELL: Yes, that will be fine. 15 MR. NORTHRIP: I believe the 16 protective order in effect places limitations on 17 the use of any materials in a deposition, whether 18 marked confidential or not. There are certain 19 additional requirements if the materi al is marked i fi l 20 a con dent . 21 MR. EDELL: That's corre ct. That's 22 what I indicated previously. Everyth ing is ~ 23 subject to the protective order and I have to 24 abide by that at this juncture but I believe the 251 protective order requires that is if you want to 405 Northfield Avenue waga and spinelli West Orange. N. J. 07052 certified shorthand reporters 201-731-9666 CTR i [N 014511

Sommers - direct 12 designate something as confidential, you will have to do it within a certain time period from receipt of the transcript. I want to put you on notice of 4 that. MR. HARTZELL: Thank you. I'm on 6•. notice and we are agreeable to that procedure. 8 9 10 11 12 13 14 15 16 I MR. NORTHRIP: Further, Mr. Edell, I have advised Mr. Hartzell and he has been provided with a copy of the discovery orders in this case limiting the scope of discovery as entered by Judge Cowen early in the case and I have suggested to him the scope of this discovery should be limited in the context of that order and I believe you previously agreed with Mr. Rayhill that that would be the case. MR. EDELL: That discovery -- 17 MR. HARTZELL: I think we are talking 18 about the time -- 19 MR. EDELL: The time frame we are 20 talking about? I 211 MR. NQRTHRIP: Yes, the time frame, 221 as well as any other limitations on discovery 23i contained in Judge Cowen's order. 24~ MR. EDELL: If I agreed to it, Mr. i 25; Northrip, then I'll be bound by that agreement. waga and spinelli 405 Northfield Avenue West Orange. N. J. 07052 certified shorthand reporters 201-731-9666 CTR HN 0145122

Sommers - direct MR. NORTHRIP: I was not a party to it. I understood that you agreed to it. MR. HARTZELL: That was my understanding but let's have it -- are you 13 5 ; agreeable? i 61 MR. EDELL: We will work under that I 7~ unless there comes a point in time where it I 8 9 10 11 12 13 14 appears to me that we have to go further than what the order may or may not say on a particular issue and then we can discuss it at that juncture. MR. HARTZELL: That's fine. MR. EDELL: Any other preliminary comments? f MR. HARTZELL: I just, it might help I 15 at this point, I think.I understood you to say at 16 the beginning that Dr. Sommers is here pursuant to 17 subpoena which is entirely correct and just so we 18 have our ground rules understood, he is here as a 19 "fact witness" today and he is appearing as an 201 expert witness on designated days next week. 21 MR. EDELL: That's correct. 22! Q. As a matter of fact, I will show the 231 witness a document we marked as Sommers 1, the i 24; first page of which is-the Notice to Take Oral 25: Deposition of Sheldon C. Sommers, M.D., dated 405 Northfield Avenue waga and spinelli West Orange. N. J. 07052 certified shorthand reporters 201•731•9666 CTR tiN 0 14513

r Sommers - direct 14 1 August 12, 1986 and attached to it is a subpoena 2 and ask the witness whether or not he has ever 3 seen that document. 4 A. (Examining document.) 5 MR. HARTZELL: If I could clarify 6 this, we will stipulate and Dr. Sommers can 7 testify if you want, he got the subpoena. Whether 8 he has seen or received the notice, I don't know. MR. EDELL: He can tell us that. 10: MR. HARTZELL: I don't think that was 11; on the subpoena. 12j A. I have seen the subpoena of which a page is I 131; included in the material you handed me, but so far i 14: as I know, I have never before seen pages one and 15; two which the technical name of which I don't know. 16' It states Notice to Take Oral Deposition, et 17 cetera. 18"i 4• Let's just talk about the third page 19~ of it, Dr. Sommers, of that document, Sommers i 20~ Exhibit 1 for identification. Did you attempt to 21i comply with the subpoena insofar as producing 22! documents here today requested in the subpoena? 23i A. Yes, with the assistance of counsel. 24 ; MR. EDELL:-- Counsel, did you bring 25 those documents with you? , waga and spinelli certified shorthand reporters 405 Northfield Avenue West Orange, N. J. 07052 201-731-9666 !.y TR i i i i 0 14514

Sommers - direct 26 Q. You can look at that. A. It's just a calendar. Q. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 What I'm saying is don't talk because she is taking down everything. So if you want to think to yourself, think to yourself. We don't want you to guess. If there's something you have there -- you are looking through your diary. A. It's not in the diary. I'm looking for a calendar. ~ I ~ Q. You are referring to something, sir? i A. A calendar. Monday, September 29, Tuesday, ~ And yesterday, October 1. Right? And today, October 2? Prior to September 29, do you recall meeting with any attorney involved in the Cipollone case? A. Yes. Q. Let's go back as far as we can in time as to when you recall meeting with them. A. August 14. Q. 1986? 2 5 ; MR. HARTZELL: Sorry, Mr. Edell, I , waga and spinelli certified shorthand reporters 405 Northfield Avenue West Orange. N. J. 07052 201-731-9666 i CTR HN 0 14515

Sommers - direct 27 don't believe that is correct. It may be correct but I don't think that that date has anything to 3 do with the -- A. Pardon me. A mistake. August 18, approximately. Q• 8 9 10 11 12 13 14 15 16 17 18 THE WITNESS: Total. 19 Q. Total? 20 A. Yes. 21j Q. So including September 29, 30, 22 23 Did you meet with any attorney involved in this litigation between August 18, 1986 and September 29, 1986? A. Yes. Q• On what date? A. I can't recall the dates. Q. On how many different occasions? A. I estimate approximately seven working days. MR. HARTZELL: Total? THE WITNESS: Total. MR. HARTZELL: Including the ones you mentioned? October 1, 2 and August 18, 1986, you met with counsel involved in this case on two other 241, occasions. Is that correct? That would give us a 25; total of seven days? waga and spinelli certified shorthand reporters 405 Northfield Avenue West Orange, N. J. 07052 201•731•9666 CTR i ii i014516

Sommers - direct 28 2 A. I j ust don' t recal l. Q• You have no recollection of meeting with any attorneys involved in this case pertinent to the Cipollone case prior to August 18, 1986. Is that correct? A. So far as I can remember. MR. HARTZELL: Mr. Edell, let me just 8) clarify one thing which I should have clarified 91 earlier. When you say attorneys involved in the 10 Cipollone case, I had assumed that since the 111 Council for Tobacco Research had been subpoenaed 12 for documents previously and we had been told at 13i some point this summer that you wanted to take Dr. I 14) Sommers' deposition that you were including I 15; Debevoise & Plimpton, attorneys, as counsel for 16i the CTR and counsel for Dr. Sommers in your group I 177 of attorneys. Were you? t 18` MR. EDELL: I was trying to. Excuse 19' me for the inartful way I posed the question, but 20 yes . 21: MR. HARTZELL: Yes. 22 Q. You understood that, Dr. Sommers? i 23 A. The last exchange I did not understand. i 24; Q. When I asked you whether or not you 25: met with any, you recall meeting with any waga and spinelli certified shorthand reporters 405 Northfield Avenue West Orange. N. J. 07052 201-731-9666 CTi_+ i tN 0 14517

Sommers - direct 29 1 attorneys involved in this case prior to August 18, 3 1986, I did not mean to exclude Counsel for the Council for Tobacco Research or your personal counsel. Do you understand that? A. No. May I confer with counsel? 1 6! Q. Yes . Why don' t you do that . 7• MR. HARTZELL: It's okay, counsel. Let's go ahead. We were included in the lawyer. i 9~ I think it will get more and more confusing to the 10 11 witness. 'Q. You are shaking your head. 12~ A. I beg your pardon, Mr. Edell. I didn't 13I understand the exchange between you and Mr. ~ I 14; Hartzell and I didn't understand the last question . i 15 1 you asked me. That's why I wanted to confer with 161 counsel. I 171 Q. Why don't you confer with counsel. 18 19 20 A. It appears unnecessary. Q. I will continue asking you the questions until I get a resolution of this issue, 21 i sir. 22i . (Discussion off the record.) 23i Q. Let me see if I can make it easier 1 241 for you. Do you remember meeting with any 25 attorneys associated with Carter, Ledyard? Are waga and spinelli certified shorthand reporters 405 Northfield Avenue West Orange. N. J. 07052 201-731-9666 CTR t iN 014516

r Yes, but I'm not certain with reference to the Cipollone case. Q. Do you recall meeting with anyone Sommers - direct 1 you familiar with that firm? 2 A. Mr. Rayhill, a member of that firm? 3 Q. Yes, he is. 4 A. Yes. 5 Q. Do you recall meeting with Mr. Rayhill prio.r to August 18, 1986? 7 A. ?0 10 i from Shook, Hardy & Bacon prior to August 18, 1986 ~ . 111 with regard to the Cipollone case? I 121 A. I don't believe so. 13 ~ Q. I don' t remember the full name of the 14; firm but it's something like Jacob, Medinger & i 15; Finnegan. Are you familiar with that firm? i 16~ A. Yes, but I'm not certain with reference to 17i the Cipollone case. 18~ Q. With whom did you meet from that firm? 19i MR. HARTZELL: What time period are 20~ we talking about now? i 21 MR. EDELL: I'm going to try to 221 figure out whether he met with anybody that he can 23' recall with regard to this litigation. Obviously 24 he has met with people in the past -- I can tell 25 that from documents -- such as Mr. Jacobs years waga and spinelli certified shorthand reporters 405 Northfield Avenue West Orange, N. J. 07052 201-731•9666 CTR t iN 0 14519

Sommers - direct 31 and years ago. That's why I'm trying to work it back in time so we can try to reconstruct who he met with at what points in time. MR. HARTZELL: Did you meet with Mr. Jacobs with regard to this case? 6~ A. The answer is no. ~ 7! Q. Did you meet with Mr. Finnegan in 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 regard to this case? A. I believe not. Do you recall meeting with anyone from that firm with regard to this case? A. No . Q. Do you have a personal diary or calendar that you keep? A. Only for things like committee meetings, vacation and professional entertainment receipts. Does your secretary maintain a diary for you? A. No. Q. How do you know what you are going to do for a particular week? A. Well, number one, I remember. Number two, I have my own desk calendar. Q. Would that desk calendar reflect your 25; activities on certain days within the past year? waga and spinelli certified shorthand reporters 405 Northfield Avenue West Orange. N. J. 07052 201-731-9666 Ct R ! l N 014520