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Index of Pleadings / Discovery Case Name: Pedro Rossello, Commonwealth of Puerto Rico V. B&W, Et Al. Case Number: 97-1910 (Jaf) Court: Usdc District Court of Puerto Rico

Date: 09 Nov 1998 (est.)
Length: 425 pages
86348781-86349205
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Type
OUTL, OUTLINE
Area
LEGAL DEPT. FILE/BASEMENT GMP
Site
N14
Request
R1-080
Named Person
F, J.A.
Fuste
Rossello, P.
Document File
86348780/86349212/Pedro Rossello V. B&W, Et Al. Court Papers - Volume V Opened 981105
Date Loaded
06 Dec 2001
Named Organization
Bat Industries
Batus Holdings
British American Holdings
Brooke Group
Bw, Brown & Williamson
Ctr, Council for Tobacco Research
Fortune Brands
Latham Watkins
Lig, Liggett
Lm, Liggett & Myers
Loews
Puerto Rico
RJR Nabisco
Shb, Shook,Hardy & Bacon
Usdc District Puerto Rico
Characteristic
PARE, PARENT
Litigation
Feda/Produced
Master ID
86348781/9205

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0 INDEX OF PLEADINGS /DISCOVERY CASE NAME: PEDRO ROSSELLO, COMMONWEALTH OF PUERTO RICO V. B&W, ET AL. CASE NUMBER: 97-1910 (JAF) COURT: USDC DISTRICT OF PUERTO RICO NO. PARTY DOCUMENT NAME VOLUME V RECEIVED FILED SERVED 39. DEFENDANT MEMO IN SUPPORT OF MOTION OF CERTAIN DEFS. FOR 10-26-98 A PTOECTIVE ORDER 40. PLAINTIFF RESPONSE AND MEMO OF LAW IN OPPOSITION TO 10-28-98 DEFS' MOTION TO COMPEL DISCOVERY OF RECEIPIENT PAYMENT INFORMATION IN UNREDACTED , AND UNENCRYPTED FORM 41. LOEWS RESPONSES TO PLS' 9 21 98 SET OF INTERROGS. 10-29-98 42. PLAINTIFF ANSWERS AND OBJECTIONS TO DEFS' FIRST 10-30-98 , REQUESTS FOR PRODUCTION OF DOCS. ' 43. LTC RESPONSES TO PL'S 9 21 98 SET OF INTERROGS. 10-30-98 44. LI RESPONSES TO PL'S 9 21 98 SET OF INTERROGS. 10-30-98 45. LTC RESPONSES TO PL'S FIRST SET OF INTERROGS. AND 10-30-98 REQUESTS FOR PRODUCTION TO LTC 46. PLAINTIFF ANSWERS TO DEFS' FIRST SET OF INTERROGS. UNDATED 47. LOEWS RESPONES TO PL'S FIRST SET OF INTERLOCKING 11-2-98 REQUESTS FOR ADMISSION AND REQUEST FOR PRODUCTION 48. LI RESPONES TO PL'S FIRST SET OF INTERLOCKING _ 11-2-98 REQUESTS FOR ADMISSION AND REQUEST FOR PRODUCTION 49. LTC RESPONES TO PL'S FIRST SET OF INTERLOCKING 11-2-98 REQUESTS FOR ADMISSION AND REQUEST FOR PRODUCTION 50. LTC RESPONSES TO PLS' 12/22/97 REQUEST FO 11-2-98 RPROUDCITON OF DOCS TO CERTAIN DEFS. 51. PLAINTIFF RESONSES AND MEMO OF LAW IN OPPOSITION TO THE 11-9-98 . DEFS' MOTION FOR PROTECTIVE ORDER 52. LTC RESPONSES TO PL'S 10 8 98 SET OF INTERROGS. 11-9-98 53. LI RESPONSES TO PL'S 10 8 98 SET OF INTERROGS. 11-9-98
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= dN-THE UNITED STATES.DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO - PEDRO ROSSELLO, in his capacity as GOVERNOR OF ) THE COMMONWEALTH OF PUERTO RICO, JOSE A. ) FUENTES AGOSTINI, in his capacity as ATTORNEY ) GENERAL OF THE COMMONWEALTH OF PUERTO ) RICO, on behalf of the COMMONWEALTH OF ) PUERTO RICO, and THE COMMONWEALTH OF ) PUERTO RICO, ) ) Plaintiffs, ) ) Civil No. 97-1910 (JAF) v. ) ) BROWN & WILLIAMSON TOBACCO ) CORPORATION as successor by merger to THE ) AMERICAN TOBACCO COMPANY, et al., ) ) Defendants. ) ) ) INFORMATIVE MOTION TO THE HONORABLE COURT HON. JOSE A. FUSTE U.S. DISTRICT JUDGE: Pursuant to Local Rule 311.15 of the Local Rules of this Court, the undersigned Defendant Lorillard Tobacco Company respectfully informs this Honorable Court that on this date it has served upon the Plaintiff, the Commonwealth of Puerto Rico, "Lorillard Tobacco Compaiiy's Response to the Commonwealth of Puerto Rico's October 8, 1998 Set of Interrogatories" WHEREFORE, the undersigned Defendant respectfully requests that this Honorable Court take notice of the aforementioned. ~ c3~ 4~- co GEN 191048 ~
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those responses and related documents produced, and (3) defendants have had an opportunity to depose Commonwealth employees who are knowledgeable about the subject matter of this Interrogatory. Lorillard, Inc. is continuing to gather information responsive to this Interrogatory and will supplement its answers as directed by the Federal Rules of Civil Procedure. INTERROGATORY NO. 2: If defendant contends that any percent of the Commonwealth's health care expenditures have been increased by undetected fraud, waste or abuse, please state, broken down by year, the percent of this fraud, waste or abuse, the program(s) in which this fraud, waste abuse is alleged to have occurred, and the manner in which this fraud, waste or abuse could have been avoided. RESPONSE: Lorillard, Inc. objects to this interrogatory on the grounds that this contention interrogatory is premature since discovery in this case is still in its initial stages. Although the Court's September 9, 1998 Final Pretrial Schedule and Trial Setting in this case required the filing of these Interrogatories at this time, Lorillard, Inc. cannot, at this time, formulate a meaningful response to this Interrogatory. Lorillard, Inc. does not anticipate having information sufficient to respond to this Interrogatory until (1) Plaintiffs' respond to discovery requests served by defendants, (2) defendants have had an opportunity to review and analyze those responses and related documents produced, and (3) defendants have had an opportunity to depose Commonwealth employees who are knowledgeable about the subject matter of this Interrogatory. Lorillard, Inc. is continuing to gather information responsive to this Interrogatory and will supplement its answers as directed by the Federal Rules of Civil Procedure. 1048743 - 3 -
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0 ® Confidential Attorney Work Product Attorney-Client Privilege IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO PEDRO ROSSELLO, in his capacity as GOVERNOR OF THE COMMONWEALTH OF PUERTO RICO, JOSE A. FUENTES AGOSTINI, in his capacity as ATTORNEY GENERAL OF THE COMMONWEALTH OF PUERTO RICO, on behalf of the COMMONWEALTH OF PUERTO RICO, and THE COMMONWEALTH OF PUERTO RICO, Plaintiffs, V. BROW'N &. WILLIAMSON TOBACCO CORPORATION as successor by merger to THE AMERICAN TOBACCO COMPANY, et al., Defendants. Civil No. 97-1910(JAF) LORILLARD, INC.'S RESPONSES TO THE COMMONWEALTH OF PUERTO RICO'S OCTOBER 8. 1998 SET OF INTERROGATORIES Lorillard, Inc., pursuant to Rules 26 and 33 of the Federal Rules of Civil Procedure, responds to "The Commonwealth of Puerto Rico's October 8, 1998 Set of Interrogatories" (hereinafter referred to as "Interrogatories") as follows: GENERAL OBTECTIONS A. Lorillard, Inc. objects to the "Instructions" and "Definitions" to the Interrogatories to the extent they attempt to impose obligations on Lorillard, Inc. other than 1048743
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VEIZIF'ICATION STATE OF NORTH CAROLINA ) ) COUNTY OF GUILFORD ) Lorillard, I, RICHARD B. JACOBS, am the Assistant Secretary and Assistant Treasurer of Lorillard, Inc., a Defendant in this action. I have read the foregoing Lorillard, Inc.'s Responses to The Commonwealth of Puerto Rico's October 8, 1998 Set of Interrogatories, know the contents thereof, and am informed and believe that the Responses are true and correct. ard B. J Subscribed and sworn to before me, a notary public, this 4(+k day of November, 19,98. ~ OFFICIAL SEAL Assistant Sicydfary and Assistant Treasurer ss. NOTARY PUBUC•NCRTH CAROLINA COUNTY OF GUILFORD JEAN M. PRICE My Commis i s on Expires Aug. 16, 2003
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0 -2- RESPECTFULLY SUBMITTED. In San Juan, Puerto Rico, this 10W' day of November, 1998. AXTMAYER ADSUAR MURIZ & GOYCO, P.S.C. Attorneys for Lorillard Tobacco Company P. O. Box 70294 San Juan, Puerto Rico 00936-8294 Tel. (787) 756-9000, Est. 2020 Fax. (787) 756-9010 ra cisco A. Besosa C No. 126502 Marshal D. Morga, USDC No. 2109, OF COUNSEL: J. William Newbold Adam E. Miller Thompson & Coburn One Mercantile Center St. Louis, MO 63101 Tel. (314) 552-6000 Fax. (314) 552-7597 GEPl 191049
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® INDEX OF PLEADINGS/DISCOVERY CASE NAME: CASE NUMBER: COURT: PEDRO ROSSELLO, COMMONWEALTH OF PUERTO RICO V. B&W, ET AL. 97-1910 (JAF) USDC DISTRICT OF PUERTO RICO NO. PARTY DOCUMENT NAME RECEIVED FILED SERVED VOLUMEI 1. PLAINTIFF COMPLAINT (COURTESY COPY FROM SHB F= 6-17-97 2. PLAINTIFF FIRST AMENDED COMPLAINT 6-27-97 NOTICE OF LAWSUIT AND WAIVER OF SERVICE OF 7-7-97 SUMMONS 3. LTC NOTICE OF SERVICE 7-14-97 4. LOEWS NOTICE OF SERVICE 7-14-97 5. LI NOTICE OF SERVICE 7-14-97 RECEIVED AT LORILLAR D TOBACCO COMPANY ON 8 4 97 6. LTC LOEWS WAIVER OF SERVICE (AS SENT TO SHB 7-29-97 7. LI 2ND SERVICE OF AMENDED COMPLAINT 9-3-97 S. LTC FILED STAMPED WAIVER OF SERVICE P-- 8-15-97 8= 9-4-97 VOLUMEII 9. PLAINTIFF 1s'i' SET OF INTERROGATORIES AND REQUEST FOR 11-5-97 PRODUCTION TO LTC 10. PLAINTIFF MOTION REQUESTING SCHEDULING CONFERENCE 11-26-97 AND/OR ENTRY OF SCHEDULING ORDER; SCHEDULING ORDER; MOTION IN OPPOSITION TO DEFS' MOTION FOR PROTECTIVE ORDER STAYING DISCOVERY AND MOTION TO COMPEL DISCOVERY; AND MOTION REQUESTING LEAVE TO FILE SECOND AMENDED COMPLAINT 11. PLAINTIFF 2ND AMENDED COMPLAINT 11-26-97 12. PLAINTIFF COMMONWEALTH OF PL'S BRIEF IN OPPOSITION TO 12-3-97 DEFS' MOTION TO DISMISS THE AMENDED COMPLAINT 13. PLAINTIFF REQUESTS OF DOCUMENTS FROM DEFS. 12-12-97 14. PLAINTIFF 12 22 97 REQUEST FOR PROD. OF DOCS. TO DEFS. 12-22-97 15. PLAINTIFF IsT SET OF INTERLOCKING REQUESTS FOR 12-29-97 ADMISSIONS AND REQUEST FOR PROD. 16. PLAINTIFF SUBMISSION OF SUPPLEMENTAL AUTHORITY IN 1-8-98 SUPPORT OF ITS MEMO IN OPPOSITION TO DEFS' MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION 17. PLAINTIFF NOTICE OF ORAL DEPOSITION 1-30-98 18. PLAINTIFF SERVICE OF SUBPOENA ON HARLEY-DAVIDSON 2-6-98 19. COURT ORDER - STAYING ALL PROCEEDGINS 3-2-98 20. COURT ORDER TO DISMISS - IS DENIED 3-17-98
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w c~ 52
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those imposed or authorized by the Federal Rules of Civil Procedure and to the extent they attempt to alter the plain meaning of the words used in the Interrogatories. B. Lorillard, Inc. objects to these Interrogatories to the extent they purport to (i) require searches of files and productions of documents in the possession of third parties; or (ii) require Lorillard, Inc. to produce information and materials not within Lorillard, Inc.'s possession, custody, or control, as such requirements are inconsistent with Lorillard, Inc.'s obligation under the Federal Rules of Civil Procedure. C. Lorillard, Inc. objects to these Interrogatories as overly broad and unduly burdensome to the extent it seeks information that is likely to be in, and more appropriately collected from, plaintiffs' files. D. Lorillard, Inc. objects to this set of Interrogatories because they are vague and ambiguous to the extent the Definitions seek to define terms that are not used in the Interrogatories. E. Lorillard, Inc. reserves the right to assert additional objections to these Interrogatories and to supplement these objections as appropriate. These General Objections are incorporated into the following responses and shall be:deemed.continuing as to each Interrogatory, whether or no specifically stated, and are not waived, nor in any way limited, by the responses. INTERROGATORIES INTERROGATORY NO. 1: If defendant contends that any percent of the Commonwealth's health care expenditures have been increased by undetected fraud, waste or abuse, please state, broken down by year, the percent of this fraud, waste or abuse, the program(s) in which this fraud, waste abuse is alleged to have occurred, and the manner in which this fraud, waste or abuse could have been avoided. RESPONSE: Lorillard, Inc. objects to this interrogatory on the grounds that this contention interrogatory is premature since discovery in this case is still in its initial stages. Although the Court's September 9, 1998 Final Pretrial Schedule and Trial Setting in this case required the filing of these Interrogatories at this time, Lorillard, Inc. cannot, at this time, formulate a meaningful response to this Interrogatory. Lorillard, Inc. does not anticipate having information sufficient to respond to this Interrogatory until (1) Plaintiffs' respond to discovery requests served by defendants, (2) defendants have had an opportunity to review and analyze 1o4S7a3 - 2 -
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0 ® ; -3- SERVICE LIST I HEREBY CERTIFY that a true and exact copy of this motion will be served by mail on: Pedro J. Durand Deputy Attorney General for Litigation Department of Justice - P. O. Box 9020912 San Juan, PR 00902-0192 Benjamin Acosta Law Offices of Benjamin Acosta, Jr. P. O. Box 9023518 San Juan, PR 00902-3518 Ronald Motley Ness, Motley, Loadholt, Richardson & Poole P. O. Box 1137 Charleston, SC 29402 Jack E. McClard Douglas W. Davis Maya M. Eckstein Hunton & Williams Riverfront Plaza 951 East Byrd Street Richmond, VA 23219-4074 Mark Cunha Andrew T. Frankel Kathleen Turland Simpson Thacher & Bartlett 425 Lexington Avenue New York, NY 10017-3954 Eric Tulla Rivera, Tulla & Ferrer 50 Quisqueya Street Hato Ray San Juan, PR 00917 Sam Mills Daniel F. Kolb Vincent T. Chang Davis Polk & Wardwell 450 Lexington Avenue New York, NY 10017 Robert F. McDermott, Jr. Jones, Day, Reavis & Pogue Metropolitan Square 1450,G Street, NW Washington, DC 20005 Manuel A. Guzman P. O. Box 193850 - San Juan, PR 00919-3850 Peter Bellacosa Kirkland & Ellis 153 E. 53rd Street New York, NY 10022 Robert Gaffey Michael S. Chernis Jones, Day, Reavis & Pogue 599 Lexington Avenue New York, NY 10002 Vicente Santori-Coll Law Offices Hato Rey Plaza, Suite 2 200 Jesus T. Pinero Avenue Hato Rey, PR 00918 GE.r1191050_
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Confidential Attorney Work Product Attorney-Client Privilege IN THE UNITED STArES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO PEDRO ROSSELLO, in his capacity as GOVERNOR OF THE COMMONWEALTH OF PUERTO RICO, JOSE A. FUENTES AGOSTINI, in his capacity as ATTORNEY GENERAL OF THE COMMONWEALTH OF PUERTO RICO, on behalf of the COMMONWEALTH OF PUERTO RICO, and THE COMMONWEALTH OF PUERTO RICO, Plaintiffs, V. BROWN & WILLIAMSON TOBACCO CORPORATION as successor by merger to THE AMERICAN TOBACCO COMPANY, et al., Defendants. D Civil No. 97-1910(JAF) LORILLARD TOBACCO COMPANY'S RESPONSES TO THE COMMONWEALTH OF PUERTO RICO'S OCTOBER 8. 1998 SET OF INTERROGATORIES Lorillard Tobacco Company, pursuant to Rules 26 and 33 of the Federal Rules of Civil Procedure, responds to "The Commonwealth of Puerto Rico's October 8, 1998 Set of Interrogatories" (hereinafter referred to as "Interrogatories") as follows: GENERAL OBJECTIONS A. Lorillard Tobacco Company objects to the "Instructions" and "Definitions" to the Interrogatories to the extent they attempt to impose obligations on Lorillard Tobacco 1048691
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9 Steve Klugman Harry Zirlin Debevoise & Plimpton 875 Third Avenue New York, NY 10022 David Cohen Kirkpatrick & Lockhart 1500 Oliver Building Pittsburgh, PA 15222 Jamie Sifre-Rodriguez Sanchez Betances & Sifre Suite 500, Bolivia 33 Hato Rey, PR 00919 George Bordon Mike Sundermeyer Gerson Zweifach Williams & Connolly 725 Twelfth Street, N.W. Washington, D.C. 20005-5901 Ramon A. Bauza Higuera Bauza & Davila 63 Fortaleza Street Old San Juan, PR 00901 William Snipes Holly N. Weiss Michael A. Cooper Sullivan & Cromwell 125 Broad Street New York, NY 10004-2498 Harold Vicente Vincente & Cuebas Capital Center Building 1-PIII Suite 1201, Arterial Hostos Hato Rey, PR 00918 Hector Reichard de Cardona, Esq. Reichard & Escalera PO Box 364148 San Juan, PR 00936-4148 -4- Pedro Santa Sanchez, Esq. O'Neill & Borges American Int'l Plaza, 8`h Floor 250 Munoz Rivera Ave. Hato Rey, PR 00918 Edgar Cartagena Santiago, Esq. Goldman Antonetti & Cordova PO Box 70364 , San Juan, PR 00936-0364 Marie V. Santacroce, Esq. Kasowitz Benson Torres & Friedman, LLP 1301 Avenue of the Americas New York, NY 10019-6022 Juan A. Ramos Diaz, Esq. Juan A. Ramos Diaz Law Offices 359 de Diego Avenue, Suite 601 San Juan, PR 00909-1711 Salvador Antonetti, Esq. Fiddler Gonzalez & Rodriguez PO Box 363507 San Juan, PR 00936-3507 GEN 191®51
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0 VERIFICATION STATE OF NORTH CAROLINA ) ) COUNTY OF GUILFORD ) ss. 0 I, VINCENT M. LOSITO, am the Assistant Secretary and Assistant Treasurer of Lorillard Tobacco Company, a Defendant in this action. I have read the foregoing Lorillard Tobacco Company's Responses to The Commonwealth of Puerto Rico's October 8, 1998 Set of Interrogatories, know the contents thereof, and am informed and believe that the Responses are true and correct. Vincent M. Losito Assistant Secretary and Assistant Treasurer Lorillard Tobacco Company Subscribed and sworn to before me, a notary public, this Q'B'1% day of NoveLr}ber, 1998. OFFICIAL SEAL NOTARY PUBLIC-NORTH CAROLINA COUNTY OF CaUILFOftD h V,-ff v JEAN M. PRICE ¢ My Commission Expires Aug. 16, 20D3
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® - IN_THE. UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO V PEDRO ROSSELLO, in his capacity as GOVERNOR OF ) THE COMMONWEALTH OF PUERTO RICO, JOSE A. ) FUENTES AGOSTINI, in his capacity as ATTORNEY ) GENERAL OF THE COMMONWEALTH OF PUERTO ) RICO, on behalf of the COMMONWEALTH OF ) PUERTO RICO, and THE COMMONWEALTH OF ) PUERTO RICO, ) ) Plaintiffs, ) ) Civil No. 97-1910 (JAF) v. ) ) BROWN & WILLIAMSON TOBACCO ) CORPORATION as successor by merger to THE ) AMERICAN TOBACCO COMPANY, et al., ) ) Defendants. ) ) ) INFORMATIVE MOTION TO THE HONORABLE COURT . HON. JOSE A. FUSTE U.S. DISTRICT JUDGE: Pursuant to Local Rule 311.15 of the Local Rules of this Court, the undersigned Defendant Lorillard, Inc. respectfully informs this Honorable Court that on this date it has served upon the Plaintiff, the Commonwealth of Puerto Rico, "Lorillard, Inc.'s Response to the Commonwealth of Puerto Rico's October 8, 1998 Set of Interrogatories." WHEREFORE, the undersigned Defendant respectfully requests that this Honorable Court take notice of the aforementioned. c' rn W ~ co ~ 110 GEN 151037 (~o
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Company other than those imposed or authorized by the Federal Rules of Civil Procedure and to the extent they attempt to alter the plain meaning of the words used in the Interrogatories. B. Lorillard Tobacco Company objects to these Interrogatories to the extent they purport to (i) require searches of files and productions of documents in the possession of third parties; or (ii) require Lorillard Tobacco Company to produce information and materials not within Lorillard Tobacco Company's possession, custody, or control, as such requirements are inconsistent with Lorillard Tobacco Company's obligation under the Federal Rules of Civil Procedure. C. Lorillard Tobacco Company objects to these Interrogatories as overly broad and unduly burdensome to the extent it seeks information that is likely to be in, and more appropriately collected from, plaintiffs' files. D. Lorillard Tobacco Company objects to this set of Interrogatories because they are vague and ambiguous to the extent the Definitions seek to define terms that are not used in the Interrogatories. E. Lorillard Tobacco Company reserves the right to assert additional objections to these Interrogatories and to supplement these objections as appropriate. These General Objections are incorporated into the following responses and shall be deemed continuing as to each Interrogatory, whether or no specifically stated, and are not waived, nor in any way limited, by the responses. INTERROCATORIES INTERROGATORY NO. 1: If defendant contends that any percent of the Commonwealth's health care expenditures have been increased by undetected fraud, waste or abuse, please state, broken down by year, the percent of this fraud, waste or abuse, the program(s) in which this fraud, waste abuse is alleged to have occurred, and the manner in which this fraud, waste or abuse could have been avoided. RESPONSE: Lorillard Tobacco Company objects to this interrogatory on the grounds that this contention interrogatory is premature since discovery in this case is still in its initial stages. Although the Court's September 9, 1998 Final Pretrial Schedule and Trial Setting in this case required the filing of these Interrogatories at this time, Lorillard Tobacco Company cannot, at this time, formulate a meaningful response to this Interrogatory. Lorillard Tobacco Company does not anticipate having information sufficient to respond to this Interrogatory until (1) Plaintiffs' respond to discovery requests served by defendants, (2) Lorillard Tobacco 1048691 - 2 -
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® INDEX OF PLEADINGS/DISCOVERY CASE NAME: CASE NUMBER: COURT: 0 PEDRO ROSSELLO, COMMONWEALTH OF PUERTO RICO V. B&W, ET AL. 97-1910 (JAF) USDC DISTRICT OF PUERTO RICO NO. PARTY DOCUMENT NAME RECEIVED FILED SERVED VOLUME II 21. COURT OPINION AND ORDER: On June 3, Judge Fuste issued a 50-page 6-2-98 opinion in which he denied the jurisdictional motions to dismiss filed by the law firm defendants, CTR, Loews, Fortune Brands, BAT Industries, British American Holdings, BATUS Holdings, Liggett & Meyers, Brooke Group, Liggett Group, and RJR Nabisco. With respect to Loews' motion, the court found that plaintiffs' allegations that Loews assisted in the financing of its subsidiaries and partook in their operations and policies were sufficient to raise a genuine issue of material fact regarding Loews' control over its subsidiaries. The court also found that, for purposes of the jurisdictional analysis, Loews' alleged participation in 17 and CTR may consfltute an actual fraud directed at the people of Puerto Rico. The court therefore determined that it is sufficiently likel that Loews committed a fraud to find jurisdiction exists. 22. DEFENDANT MOTION FOR LEAVE TO FILE MOTION FOR UNDATED CONFERENCE VOLUME III 23. COURT ORDER - STATUS CONFERENCE 6/26/98 ON DEFS. 6-15-98 MOTIONS FOR PROTECTIVE ORDER 24. DEFENDANT MEMO IN SUPPORT OF DEFS' FILING OF UNDATED SUPPLEMENTAL AUTHORITY 25. PLAINTIFF MEMO IN OPPOSITION TO CERTAIN DEFS' MOTIONS UNDATED FOR RECONSIDERATION 26. LOEWS MOTION FOR LEAVE TO FILE MOTION FOR 6-17-98 RECONSIDERATION ..... ; MOTION AND BRIEF IN SUPPORT OF MOTION FOR RECONSIDERATION AND EXHIBITS 27. PLAINTIFF RESPONSE TO CERTAIN DEFS' MOTIONS IN THE 7-20-98 ALTERNATIVE FOR CERTIFICATION UNDER USC FOR INTERLOCUTORY APPEAL OF THE ISSUE OF PERSONAL JURISDICTION 28. PLAINTIFF PROPOSED SCEDULING ORDER AND MEMO IN 7-21-98 SUPPORT OF ITS ENTRY 29. COURT _ OPINION AND ORDER THAT COURT HAS NO 8-10-98 JURISDICTION OVER LAW FIRMS AND DOCUMENTS NO. 128, 130-2, 134, 136-7, 145, 147-51, 154-57, 160-1, 165-6, 170, AND 173 ARE ORDERED DISPOSED VOLiiME IV 30. LI REPSONSE TO PUS 2ND AMENDED COMPLAINT 9-8-98 31. LTC RESPONSE TO PL'S 2~ AMENDED COMPLAINT 9-8-98 32. COURT FINAL PRETRIAL SCHEDULE AND TRIAL SETTING 9-9-98 33. PLAINTIFF SERVICE OF SUBPOENAS 9-21-98 34. PLAINTIFF 9 21 98 SET OF INTERROGATORIES TO DEFS. 9-21-98 35. LATHAM WATHINS OBJECTIONS TO SUBPOENA 10-8-98 36. PLAINTIFF 10-8-98 SET OF INTERROGATORIES TO DEFS. 10-8-98 37. PLAINTIFF DISCLOSURE OF DAMAGES METHODOLOGY 10-22-98 38. DEFENDANT MOTION FOR PROTECTION ORDER 10-26-98
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Company has had an opportunity to review and analyze those responses and any documents produced, and (3) Lorillard Tobacco Company has had an opportunity to depose Commonwealth employees who are knowledgeable about the subject matter of this Interrogatory. Lorillard Tobacco Company is continuing to gather information responsive to this Interrogatory and will supplement its answer as directed by the Federal Rules of Civil Procedure. INTERROGATORY NO. 2: If defendant contends that any percent of the Commonwealth's health care expenditures have been increased by undetected fraud, waste or abuse, please state, broken down by year, the percent of this fraud, waste or abuse, the program(s) in which this fraud, waste abuse is alleged to have occurred, and the manner in which this fraud, waste or abuse could have been avoided. RESPONSE: Lorillard Tobacco Company objects to this interrogatory on the grounds that this contention interrogatory is premature since discovery in this case is still in its initial stages. Although the Court's September 9, 1998 Final Pretrial Schedule and Trial Setting in this case required the filing of these Interrogatories at this time, Lorillard Tobacco Company cannot, at this time, formulate a meaningful response to this Interrogatory. Lorillard Tobacco Company does not anticipate having information sufficient to respond to this Interrogatory until (1) Plaintiffs' respond to discovery requests served by defendants, (2) Lorillard Tobacco Company has had an opportunity to review and analyze those responses and any documents produced, and (3) Lorillard Tobacco Company has had an opportunity to depose Commonwealth employees who are knowledgeable about the subject matter of this Interrogatory. Lorillard Tobacco Company is continuing to gather information responsive to this Interrogatory and will supplement its answer as directed by the Federal Rules of Civil Procedure. 1048691 - 3 -
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i 0 51
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-2- RESPECTFULLY SUBMITTED. In San Juan, Puerto Rico, this 10ih day of November, 1998. AXTMAYER ADSUAR MUNIZ & GOYCO, P.S.C. Attorneys for Lorillard, Inc. P. O. Box 70294 San Juan, Puerto Rico 00936-8294 Tel. (787) 756-9000, Est. 2020 Fax. (787) 756-9010 cisco A. Besosa No. 126502 Marshal D. Morg USDC No. 210 OF COUNSEL: J. William Newbold Adam E. Miller Thompson & Coburn One Mercantile Center St. Louis, MO 63101 Tel. (314) 552-6000 Fax. (314) 552-7597 (}EN191038
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® Steve Klugman Harry Zirlin Debevoise & Plimpton 875 Third Avenue New York, NY 10022 David Cohen Kirkpatrick & Lockhart 1500 Oliver Building Pittsburgh, PA 15222 Jamie Sifre-Rodriguez Sanchez Betances & Sifre Suite 500, Bolivia 33 Hato Rey, PR 00919 George Bordon Mike Sundermeyer Gerson Zweifach Williams & Connolly 725 Twelfth Street, N.W. Washington, D.C. 20005-5901 Ramon A. Bauza Higuera Bauza & Davila 63 Fortaleza Street Old San Juan, PR 00901 William Snipes Holly N. Weiss Michael A. Cooper Sullivan & Cromwell 125 Broad Street New York, NY 10004-2498 Harold Vicente Vincente & Cuebas Capital Center Building 1-PIII Suite 1201, Arterial Hostos Hato Rey, PR 00918 Hector Reichard de Cardona, Esq. Reichard & Escalera PO Box 364148 San Juan, PR 00936-4148 0 a a GEN 191040 -4- ® Pedro Santa Sanchez, Esq. O'Neill & Borges American Int'l Plaza, 8`h Floor 250 Muiioz Rivera Ave. Hato Rey, PR 00918 Edgar Cartagena Santiago, Esq. Goldman Antonetti & Cordova PO Box 70364 San Juan, PR 00936-0364 Marie V. Santacroce, Esq. Kasowitz Benson Torres & Friedman, LLP 1301 Avenue of the Americas New York, NY 10019-6022 Juan A. Ramos Diaz, Esq. Juan A. Ramos Diaz Law Offices 359 de Diego Avenue, Suite 601 San Juan, PR 00909-1711 Salvador Antonetti, Esq. Fiddler Gonzalez & Rodriguez PO Box 363507 San Juan, PR 00936-3507
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_ -3- SERVICE LIST I HEREBY CERTIFY that a true and exact copy of this motion will be served by mail on: Pedro J. Durand Deputy Attorney General for Litigation Department of Justice - P. O. Box 9020912 San Juan, PR 00902-0192 Benjamin Acosta Law Offices of Benjamin Acosta, Jr. P. O. Box 9023518 San Juan, PR 00902-3518 Ronald Motley Ness, Motley, Loadholt, Richardson & Poole P. O. Box 1137 Charleston, SC 29402 Jack E. McClard Douglas W. Davis Maya M. Eckstein Hunton & Williams Riverfront Plaza 951 East Byrd Street Richmond, VA 23219-4074 Mark Cunha Andrew T. Frankel Kathleen Turland Simpson Thacher & Bartlett 425 Lexington Avenue New York, NY 10017-3954 Eric Tulla Rivera, Tulla & Ferrer 50 Quisqueya Street Hato Ray San Juan, PR 00917 Sam Mills Daniel F. Kolb Vincent T. Chang. , Davis Polk & Wardwell 450 Lexington Avenue New York, NY 10017 Robert F. McDermott, Jr. Jones, Day, Reavis & Pogue Metropolitan Square 1450 G Street, NW Washington, DC 20005 Manuel A. Guzman P. 0. Box 193850 San Juan, PR 00919-3850 Peter Bellacosa Kirkland & Ellis 153 E. 53rd Street New York, NY 10022 Robert Gaffey Michael S. Chernis Jones, Day, Reavis & Pogue 599 Lexington Avenue New York, NY 10002 Vicente, Santori-Coll Law Offices Hato Rey Plaza, Suite 2 200 Jesus T. Pinero Avenue Hato Rey, PR 00918 GEi'1191039
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. RECYCLECPAPERMACEFROM20%POSTCONSUMEIi~JU I I 0 ~zS8i~L9U
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0 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO PEDRO ROSSELLO, in his capacity as GOVERNOR OF THE COMMONWEALTH I OF PUERTO RICO, JOSE A. FUENTES AGOSTINI, in his capacity as ATTORNEY GENERAL OF THE COMMONWEALTH 0 PUERTO RICO, on behalf of the COMMONWEALTH OF PUERTO RICO, and THE COMMONWEALTH OF PUERTO i RICO, Plaintiffs, Civil Case No. 97-1910 (JAF) vs. BROWN & WILLIAMSON TOBACCO CORPORATION, as successor by merger to THE AMERICAN TOBACCO COMPANY, e al., Defendants. LORILLARD TOBACCO COMPANY'S RESPONSES TO THE COMMONWEALTH OF PUERTO RICO'S FIRST SET OF INTERLOCKING REQUESTS FOR ADMISSION AND REOUEST FOR PRODUCTION Lorillard Tobacco Company hereby files its responses to The Commonwealth of Puerto Rico's First Set of Interlocking Requests for Admission and Requests for Production ("Requests") as follows: GEN 1831'Tl
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s -4_ without the entry of an appropriate protective order and the implementation of procedures to ensure the continued confidentiality of the information. I. Lorillard objects to these Requests to the extent they seek documents relating to the advertising, marketing or promotion of cigarettes after July 1, 1969 on the grounds that they seek documents relating to claims that are preempted by the Federal Cigarette Labeling and Advertising Act, codified as amended at 15 U.S.C. §§ 1331-41. See Cipollone v. Ligeett Group. Inc., 505 U.S. 504 (1992). J. Lorillard objects to Plaintiffs' demand that documents be produced to the Offices of Benjamin Acosta, Jr.. The documents Lorillard agrees to produce in response to these and subsequent Requests will be produced for inspection and copying at the Minnesota Depository and/or the office of counsel for Lorillard, as specified by Lorillard, at a time that is mutually agreeable to the parties. Any copies will be made at Plaintiffs' expense. These General Objections are incorporated into the following responses and shall be deemed continuing as to each Request, whether or not specifically stated, and are not waived, nor in any way limited, by the responses. DOCUMENTSREQUESTED REQUEST NO. 1: Please produce copies of all documents selected for copying by plaintiffs in the State of Minnesota by Hubert Humphrey, III, Its Attorney General and Blue Cross & Blue Shield of Minnesota v. Philip Morris, Inc., et al. Case No. C1-94-8565 (Ramsey County, Minnesota) litigation since July 1, 1997. RESPONSE: The Commonwealth of Puerto Rico withdrew this Request by letter dated October 2, 1998; therefore, no response is required. REOUEST NO. 2: Please produce copies of all depositions (including exhibits thereto) noticed and taken by plaintiffs in State of Minnesota by Hubert Humphrey, III, Its Attorney General and Blue Cross & Blue.Shield of Minnesota v. Philip Morris Inc., et al., Case No. Cl- 94-8565 (Ramsey County,,Minnesota) litigation. RESPONSE: The Commonwealth of Puerto Rico withdrew this Request by letter dated October 2, 1998; therefore, no response is required. GEN 183210 I
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® In San Juan, Puerto Rico, this 2"" OF COUNSEL: William J. Newbold Adam E. Miller Thompson Coburn One Mercantile Center St. Louis, MO 63101 (314) 552-6000 (314) 552-7597 - fax 0 -7- of November, 1998. AXTMAYER ADSUAR MUIVIZ & GOYCO, P.S.C. Attorneys for Lorillard Tobacco Company P.O: Box 70294 San Juan, Puerto Rico 00936-8294 Tel. (787).756-9000, Est. 2020 Fax (787) 756-9010 Francisco A. Besosa USDC-PR No. 126502 USDC-PR NoJ110901 Marshal D. Mor GEN 183213
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H I -8- SERVICE LIST I HEREBY CERTIFY that a true and exact copy of Lorillard Tobacco Company's Responses to Plaintiffs' December 22, 1997 Request for Production of Documents to the American Tobacco Company, Brown & Williamson Tobacco Corporation, Philip Morris Incorporated, R.J. Reynolds Tobacco Company, Liggett & Meyers, Inc., Lorillard Tobacco. Company, British- American Tobacco Company, Council for Tobacco Research and The Tobacco Institute will be served by mail on: Pedro J. Durand Deputy Attorney General for Litigation Department of Justice P. O. Box 9020912 San Juan, PR 00902-0192 Benjamin Acosta Law Offices of Benjamin Acosta, Jr. P. O. Box 9023518 San Juan, PR 00902-3518 Ronald Motley Ness, Motley, Loadholt, Richardson & Poole P. O. Box 1137 Charleston, SC 29402 Jack E. McClard Douglas W. Davis Maya M. Eckstein Hunton & Williams Riverfront Plaza 951 East Byrd Street Richmond, VA 23219-4074 Manuel A. Guzman P. O. Box 193850 San Juan, PR 00919-3850 Peter Bellacosa Kirkland & Ellis 153 E. 53rd Street New York, NY 10022 Mark Cunha Andrew T. Frankel Kathleen Turland Simpson Thacher & Bartlett 425 Lexington Avenue New York, NY 10017-3954 Eric Tulla - Rivera, Tulla & Ferrer 50 Quisqueya Street Hato Ray San Juan, PR 00917 Sam Mills Daniel F. Kolb Vincent T. Chang Davis Polk & Wardwell 450 Lexington Avenue New York, NY 10017 Robert F. McDermott, Jr. Jones, Day, Reavis & Pogue Metropolitan Square 1450 G Street, NW Washington, DC 20005 Robert Gaffey Michael S. Chernis Jones, Day, Reavis & Pogue 599 Lexington Avenue New York, NY 10002 GEN 183214
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® -5- REOUEST NO. 3: Please produce copies of all documents that defendants were i compelled to produce to plaintiffs pursuant to court order dated after January 1, 1997, in the State of Minnesota by Hubert Humphrey, 111, Its Attorney General and Blue Cross & Blue Shield of Minnesota v. Philip Morris Inc., et al, Case No. C1-94-8554 (Ramsey County, Minnesota) litigation. RESPONSE: Lorillard objects to this Request to the extent it seeks to rely upon, give res judicata or collateral estoppel effect to, impose any discovery obligation based upon or interfere with any discovery rulings or proceedings in courts of other jurisdictions. Lorillard further objects to this Request in as much as plaintiffs are seeking to avoid the basic requirements of due process in this Court by reference to or reliance upon rulings in or proceedings before courts in other jurisdictions. Lorillard objects to this request on the grounds that it is overly broad and unduly burdensome because: (1) it does not describe the documents requested with reasonable particularity as required by the Federal Rules of Civil Procedure; and, (2) it purports to require production of non-Lorillard documents ordered produced in the State of Minnesota litigation. Lorillard also objects to this request to the extent that it seeks information that is not relevant to the subject matter of this litigation and is not reasonably calculated to lead to the discovery of admissible evidence. Lorillard further objects to this request to the extent it seeks the disclosure of information protected from discovery by the attorney-client privilege, the work product doctrine, the joint defense privilege or common interest privilege, and or any other applicable privileges and exemptions. A court ordered production of documents is not tantamount to and does not otherwise constitute a waiver of Lorillard's privileges and protections in this jurisdiction. Lorillard objects to this request to the extent it purports to require Lorillard to produce confidential, trade secret, CIO C7\ CN -t- 00 a: GEN 183211 ND O\
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0 -9- Vicente Santori-Coll Law Offices Hato Rey Plaza, Suite 2 Hector Reichard de Cardona, Esq. Reichard & Escalera PO Box 364148 200 Jesus T. Pinero Avenue San Juan, PR 00936-4148 Hato Rey, PR 00918 Steve Klugman Harry Zirlin Debevoise & Plimpton 875 Third Avenue New York, NY 10022 David Cohen Kirkpatrick & Lockhart . Pedro Santa Sanchez, Esq. O'Neill & Borges American Int'l Plaza, 8`h Floor 250 Munoz Rivera Ave. Hato Rey, PR 00918 Edgar Cartagena Santiago, Esq. Goldman Antonetti & Cordova PO Box 70364 1500 Oliver Building San Juan, PR 00936-0364 Pittsburgh, PA 15222 Jamie Sifre-Rodriguez Sanchez Betances & Sifre Suite 500, Bolivia 33 , Marie V. Santacroce, Esq. Kasowitz Benson Torres & Friedman, LLP 1301 Avenue of the Americas New York, NY 10019-6022 Hato Rey, PR 00919 George Bordon Mike Sundermeyer Gerson Zweifach -Juan A. Ramos Diaz, Esq. Juan A. Ramos Diaz Law Offices 359 de Diego Avenue, Suite 601 San Juan, PR 00909-1711 Williams & Connolly 725 Twelfth Street, N.W. Washington, D.C. 20005-5901 Salvador Antonetti, Esq. Fiddler Gonzalez & Rodriguez PO Box 363507 Ramon A. Bauza Higuera San Juan, PR 00936-3507 Bauza & Davila 63 Fortaleza Street Old San Juan, PR 00901 William Snipes Holly N. Weiss Michael A. Cooper Marshal D. Morgan 00 Sullivan & Cromwell 0~1 125 Broad Street w ~ New York, NY 10004-2498 co rx C:v ® GEN 183215
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-2- GENERAL OBJECTIONS A. Lorillard objects to these Requests on the grounds that they are overly broad and unduly burdensome to the extent that they seek to impose on Lorillard the burden of engaging in a massive new and duplicative document production when a readily available and accessible source of information and documents exists. That source is the document depository in Minneapolis, Minnesota, known as the "Minnesota Depository," which was established by Court Order dated June 15, 1995 in State of Minnesota (Humphrey) v. Philip Morris, et al., Case No. Cl-94-8565 (Ramsey Co. Minn.). To date, Lorillard has produced roughly 1.79 million pages of documents into the Minnesota Depository. Lorillard will identify the Minnesota Request numbers in response to which Lorillard has produced documents into the Minnesota Depository in lieu of providing answers to certain of these Requests because the burden of deriving or ascertaining those answers is substantially the same for plaintiff as it is for Lorillard. On March 28, 1998, in response to a motion filed by Lorillard, Philip Morris Incorporated, R.J. Reynolds Tobacco Company, Brown & Williamson Tobacco Corporation, The Council for Tobacco.Research-U.S.A., Inc., and The Tobacco Institute, Inc. to make public the non-privileged, non-highly confidential documents that their companies produced into the Minnesota Depository (with the exception of documents containing certain personnel and third party information), the Minnesota Court entered an Order Providing Public Access to the Minnesota Document Depository. Pursuant to terms of this Order, on or about April 13, 1998, the public was given access to all non-privileged documents contained in the Minnesota Depository, except for highly sensitive trade. secret documents, and certain personnel and third party information. Furthermore, on February 27, 1998, Philip Morris Incorporated, R.J. Reynolds Tobacco Company, Brown & Williamson Tobacco Corporation and Lorillard Tobacco Company posted on the Internet the first installment of the documents which they agreed.would be made public in recent congressional testimony. This initial installment includes the vast majority of those documents of the foregoing companies selected from the Minnesota Depository by the Minnesota Attorney General in the Minnesota Litigation and an index to those documents. The index includes information regarding the Minnesota Litigation document requests to which the documents are responsive, and is searchable using this criterion. Documents containing highly confidential information, certain personnel and third party information and documents protected from discovery by the attorney-client privilege and the work product doctrine will not be included either on the website or the index. In addition, certain oversized documents, videotapes, and other non-standard media are fully indexed on the Internet site, but are not available in image form. Subject to these limitations, additional documents produced in the Minnesota Litigation will be posted to the website in installments as quickly as possible. The websites of Lorillard and the other companies are available through www.tobaccoresolution.com. co 01% GN _e~ L)O cc t\:1 GEN 183208 tN
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48
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49 ~ ~
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® -6- REQUET_NO. 7: For each and every document listed on Attachment A for which defendant denies authenticity as contemplated by Rule 901 of the Federal Rules of Evidence, admit that the defendant has admitted the authenticity of the document in State of Florida, et al. v. The American Tobacco Company, et al. RESPONSE: Subject to and without waiving the General Objections stated above, Lorillard Tobacco Company incorporates its objections to Request No. 1. REOUEST NO. 8: For each and every document listed on Attachment A for which defendant denies authenticity as contemplated by Rule 901 of the Federal Rules of Evidence, admit that the defendant has admitted the authenticity of the document in State of Texas v. The American Tobacco Company, et al. RESPONSE: Subject to and without waiving the General Objections stated above, Lorillard Tobacco Company incorporates its objections to Request No. 1. REQUEST NO. 9: For each and every document listed on Attachment A for which defendant denies authenticity as contemplated by Rule 901 of the Federal Rules of Evidence, admit that the defendant has admitted the authenticity of the document in State of Mississippi v. The American Tobacco Company, et al. RESPONSE: Subject to and without waiving the General Objections stated above, Lorillard Tobacco Company incorporates its objections to Request No. 1. REQ.LTEST NO. 10: For each and every document listed on Attachment A for which defendant denies authenticity as contemplated by Rule. 901 of the Federal Rules of Evidence, admit that the defendant has admitted the authenticity of the document in State of Minnesota v. Philip Morris, Inc. et al. RESPONSE: Subject to and without waiving the General Objections stated above, Lorillard Tobacco Company incorporates its objections to Request No. 1. REQUEST NO. 11: For each and every document listed on Attachment A for which defendant denies authenticity as contemplated by Rule 901 of the Federal Rules of Evidence, admit that the court in State of Florida, et al. v. The American Tobacco Company, et al has ruled the document to be authentic. rn v
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® -6- proprietary, or highly competitively sensitive information without the entry of an appropriate protective order and the implementation of procedures to ensure the continued confidentiality of the information. Lorillard also objects to this Request because it is duplicative of and subsumed within Discovery Requests served by Puerto Rico plaintiffs' counsel in State of Oklahoma. ex rell et al. v. R.J. Revnolds Co.. et al., No. CJ-96-1499. Subject to and without waiving these or the General Objections stated above, Lorillard states that, except as expressly modified by the Commonwealth's national counsel in State of Oklahoma, plaintiffs' counsel already possess, have access to, or identification of "documents that [Lorillard was] compelled to produce to plaintiffs pursuant to court order dated after January 1, 1997, in the State of Minnesota." REOL1F'S'T NO. 4: Please produce copies of all documents for which the court in State of Minnesota by Hubert Humphrey, III, Its Attorney General and Blue Cross & Blue Shield of Minnesota v. Philip Morris, Inc., et a1., Case No. C1-94-8565 (Ramsey County, Minnesota) litigation has, for whatever reason, overruled defendants' claim of privilege and/or protection. RESPONSE: Lorillard objects to this Request because it is duplicative of and subsumed within Request No. 3 of this set of Requests. Subject to and without waiving this or the General Objections stated above, Lorillard incorporates herein its objections and responses to Request No. 3. GEN 183212
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-5- i 901 of the Federal Rules of Evidence. Lorillard Tobacco Company also objects to this Request , because it must speculate as to the exact meaning plaintiffs place on the phrase "ordinary, normal ~ course of business," which is subject to varying interpretations and is therefore vague and ambiguous. Subject to and without waiving these or the General Objections stated above, Lorillard Tobacco Company incorporates its response and objections to Request No. 1. REOLEST NO. 5: For each and every document listed on Attachment A for which defendant denies authenticity as contemplated by Rule 901 of the Federal Rules of Evidence, admit that the document was maintained by defendant in the ordinary, normal course of business. RESPONSE: Lorillard Tobacco Company objects to this Request on the grounds that it seeks admissions which are not relevant to the issue of authentication or admissibility under Rule 901 of the Federal Rules of Evidence. Lorillard Tobacco Company also objects to this Request because it must speculate as to the exact meaning plaintiffs place on the phrase "ordinary, normal course of business," which is subject to varying interpretations and is therefore vague and ambiguous. Subject to and without waiving these or the General Objections stated above, Lorillard Tobacco Company incorporates its response and objections to Request No. 1. REOUEST NO. 6: For each and every document listed on Attachment A for which defendant denies authenticity as contemplated by Rule 901 of the Federal Rules of Evidence, admit that the document has been in existence since at least December 15, 1977. RESPONSE: Subject to and without waiving the General Objections stated above, Lorillard Tobacco Company incorporates its objections to Request No. 1. GEN 183175
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® -10- RESPONSE: Lorillard Tobacco Company objects to this Request because it must speculate ' I as to the exact meaning plaintiffs place on the phrase "most comparable document," which is subject to varying interpretations and is therefore vague and ambiguous. Subject to and without waiving this objection or the General Objections stated above, Lorillard Tobacco Company incorporates its objections to Request for Admission No. 1. In San Juan, Puerto Rico, this 2" of November, 1998. AXTMAYER ADSUAR MUIVIZ & GOYCO, P.S.C. Attorneys for Lorillard Tobacco Company P.O. Box 70294 San Juan, Puerto Rico 00936-8294 Tel. (787) 756-9000, Est. 2020 Fax (787) 756-9010 Francisco A. Besosa USDC-PR No. 126502 Marshal D. Morgan USDC-PR No. 21 OF COUNSEL: William J. Newbold Adam E. Miller Thompson Coburn 0 One Mercantile Center St. Louis, MO 63101 c'N w ~ (314) 552-6000 00 (314) 552-7597 - fax cc GEN 183180
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0 SERVICE LIST I HEREBY CERTIFY that a true and exact copy of Lorillard Tobacco Company's Responses to the Commonwealth of Puerto Rico's First Set of Interlocking Requests for Admission and Request for Production will be served by mail on: Pedro J. Durand Deputy Attorney General for Litigation Department of Justice P. O. Box 9020912 San Juan, PR 00902-0192 Benjamin Acosta Law Offices of Benjamin Acosta, Jr. P. O. Box 9023518 San Juan, PR 00902-3518 Ronald Motley Ness, Motley, Loadholt, Richardson & Poole P. O. Box 1137 Charleston, SC 29402 Jack E. McClard Douglas W. Davis Maya M. Eckstein Hunton & Williams Riverfront Plaza 951 East Byrd Street Richmond, VA 23219-4074 Mark Cunha Andrew T. Frankel Kathleen Turlar.d Simpson Thacher & Bartlett 425 Lexington Avenue New York, NY 10017-3954 Eric Tulla Rivera, Tuila & Ferrer 50 Quisqueya Street Hato Ray . San Juan, PR 00917 Sam Mills Daniel F. Kolb Vincent T. Chang Davis Polk & Wardwell 450 Lexington Avenue New York, NY 10017 Robert F. McDermott, Jr. Jones, Day, Reavis & Pogue Metropolitan Square 1450 G Street, NW Washington, DC 20005 Manuel A. Guzman P. O. Box 193850 San Juan, PR 00919-3850 Peter Bellacosa Kirkland & Ellis 153 E. 53rd Street New York, NY 10022 Robert Gaffey Michael S. Chernis Jones, Day, Reavis & Pogue 599 Lexington Avenue New York, NY 10002 GEN 183181
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® IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO PEDRO ROSSELLO, in his capacity as GOVERNOR OF THE COMMONWEALTH I OF PUERTO RICO, JOSE A. FUENTES AGOSTINI, in his capacity as ATTORNEY GENERAL OF THE COMMONWEALTH O PUERTO RICO, on behalf of the COMMONWEALTH OF PUERTO RICO, and THE COMMONWEALTH OF PUERTO RICO, Plaintiffs, Civil Case No. 97-1910 (JAF) vs. BROWN & WILLIAMSON TOBACCO CORPORATION, as successor by merger to THE AMERICAN TOBACCO COMPANY, e al., Defendants. LQRILLARD TOBACCO COMPANY'S RESPONSES TO PLAINTIFFS' DECEMBER 22, 1997 REQUEST FOR PRODUCTION OF DOCUMENTS TO THE AMERICAN TOBACCO COMPANY, BROWN & WILLIAMSON TOBACCO CORPORATION, PHILIP MORRIS INCORPORATED, R.J. REYNOLDS TOBACCO COMPANY, LIGGETT & MEYERS, INC., LORILLARD TOBACCO COMPANY, BRITISH- AMERICAN TOBACCO COMPANY, COUNCIL FOR TOBACCO RESEARCH AND THE TOBACCO INSTITUTE Lorillard Tobacco Company ("Lorillard") hereby files its responses to Plaintiffs' December 22, 1997 Request for Production of Documents to various defendants ("Requests"). GEN 183207 tm rn .~ 00 CC, N:~ tV
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-3- RESPONSE: Lorillard Tobacco Company objects to this Request as overly broad and unduly burdensome because it requests Lorillard Tobacco Company to admit or deny the authenticity of documents that plaintiffs have not yet selected for use in a manner that would implicate their authenticity. Lorillard Tobacco Company also objects to this request as overly broad and unduly burdensome to the extent it requests Lorillard Tobacco Company to admit or deny the authenticity of non-Lorillard Tobacco Company documents. In this regard, Exhibit A consists of 543 pages setting forth many thousands of multi-page documents none of which are segregated by defendant. Instead, plaintiffs unilaterally request Lorillard Tobacco Company to review these hundreds of thousands of pages of documents and admit or deny the authenticity of each document. Such tactics are improper, unreasonable, oppressive and burdensome. Plaintiffs, at a minimum, should be required to segregate the respective documents and then serve, at an appropriate time in this case, if any, proper discovery requests to each defendant identifying the respective defendants' own documents for which Plaintiffs seek information. Lorillard Tobacco Company further objects to this Request to the extent it requests Lorillard Tobacco Company to admit or deny the authenticity of documents which are protected from discovery by the attorney-client privilege, the work product doctrine, the joint defense privilege or common interest privilege, and/or any other applicable privileges or exemptions. Lorillard Tobacco Company also objects to this Request as the term authentic is not defined, not used in Rule 901 of the F.R.E., is subject to varying interpretations and, therefore, is vague and ambiguous. Moreover, F.R.E. 901 states that a requirement of authentication as a condition precedent to admissibility is.satisfied by evidence sufficient to support a finding that the matter in co O% C~~l -~ CO GEN 183193 M CA 41-
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Vicente Santori-Coll Law Offices Hato Rey Plaza, Suite 2 200 Jesus T. Pinero Avenue Hato Rey, PR 00918 Steve Klugman Harry Zirlin Debevoise & Plimpton 875 Third Avenue New York, NY 10022 David Cohen Kirkpatrick & Lockhart 1500 Oliver Building Pittsburgh, PA 15222 Jamie Sifre-Rodriguez Sanchez Betances & Sifre Suite 500, Bolivia 33 Hato Rey, PR 00919 George Bordon Mike Sundermeyer Gerson Zweifach Williams & Connolly 725 Twelfth Street, N.W. Washington, D.C. 20005-5901 Ramon A. Bauza Higuera Bauza & Davili 63 Fortaleza Street Old San Juan, PR 00901 William Snipes Holly N. Weiss Michael A. Cooper Sullivan & Cromwell 125 Broad Street New York, NY 10004-2498 -12- Hector Reichard de Cardona, Esq. Reichard & Escalera PO Box 364148 San Juan, PR 00936-4148 Pedro Santa Sanchez, Esq. O'Neill & Borges American Int'l Plaza, 8th Floor 250 Munoz Rivera Ave. Hato Rey, PR 00918 Edgar Cartagena Santiago, Esq. Goldman Antonetti & Cordova PO Box 70364 San Juan, PR 00936-0364 Marie V. Santacroce,.Esq. Kasowitz Benson Torres & Friedman, LLP 1301 Avenue of the Americas New York, NY 10019-6022 Juan A. Ramos Diaz, Esq. Juan A. Ramos Diaz Law Offices 359 de Diego Avenue, Suite 601 San Juan, PR 00909-1711 Salvador Antonetti, Esq. Fiddler Gonzalez & Rodriguez PO Box 363507 San Juan, PR 00936-3507 GEN 183182
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-3- B. Lorillard objects to these Requests on the grounds that the Commonwealth of Puerto Rico already has possession of or access to a substantial volume of Lorillard's documents and other materials, many of which include information sought by these Requests, by virtue of the fact that plaintiff is represented by Ness, Motley, Loadholt, Richardson & Poole ("Ness Motley"). Ness Motley has documents produced by Lorillard in the following cases, among others: (1) State of Florida et al v The American Tobacco Company. et al , Case No. 95-1466A0 (Fla. Cir. Ct.); (2) Castano v The American Tobacco Companv et ai, Civil Action No, 94-1-44c/w94- 3000(E.D.La.): (3) In re Mike Moore. Attorney General Ex. Rel.. State of Mississipoi Tobacco iti ati n, Case No. 94-1429 (Miss. Ch. Ct.); (4) Butler, et al. v. R.J. Reynolds Tobacco Co.. et a,1 , No. 94-5-53 (Miss. Cir. Ct.); (5) Barnes v. R.J.Reynolds Tobacco Co.. et ai., No. 84-56 (N.J. Super.); (6) Haines v. LieQett Groun Inc., et aL, No. 84-678-SA (D.N.J.); (7) S ate of Oklahoma et al v R J Reynolds Tobacco Co et al , CJ-96-1499-L (Cleveland County, Okla.); (8) State of Texas v The American Tobacco Company eral , Civil No. 5:96-CV-0091; and (9) State of Minnesota v Philip Morris et aL, Case No. C1-94-8565 (Ramsey Co. Minn.). C. Lorillard objects to plaintiffs' "Definitions And Instructions" section to the extent it attempts to impose obligations on Lorillard other than those- imposed to authorized by the Federal Rules of Civil Procedure and to the extent it attempts.to alter the plain meaning of the words used in the Requests. Lorillard also objects to the "Definitions And Instructions" section and to these Requests to the extent they purport to require searches of files and production of documents in the possession of third parties. D. Lorillard objections to Paragraphs (A) and (B) of plaintiffs' Definitions And Instructions" on the grounds that they are overly broad to the extent the terms "document," "documents," or "documentation" purport to impose obligations on Lorillard other than those imposed or authorized by the Federal Rules of Civil Procedure. E. Lorillard objects to the "Definitions" provided by plaintiffs to the extent they purport to define terms which are not used in this Request. F. Lorillard objects to these Requests to the extent they seek the disclosure of information protected from discovery by the attorney-client privilege, the work product doctrine, the joint defense privilege or common interest privilege, and/or any other applicable privileges and exemptions. G. Lorillard objects to these Requests to the extent they seek information that is not relevant to the subject matter of this litigation and is not reasonably calculated to lead to the discovery of admissible evidence. H. Lorillard objects to these Requests to the extent they purport to require Lorillard to produce confidential, trade secret, proprietary, or highly competitively sensitive information c*a G\ CN 4~1 co GEN 183209 N 4~z-
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-9- REOUEST NO. 21: For each and every document listed on Attachment A for which defendant denies authenticity as contemplated by Rule 901 of the Federal Rules of Evidence on the grounds that the document is incomplete and/or illegible, contains redactions, interlineations and/or marginalia and/or has been altered, admit defendant has in its possession, custody or control a copy of the document in its original form. RESPONSE: Subject to and without waiving the General Objections stated above, Lorillard Tobacco Company incorporates its objections to Request No. 1. REOUEST NO. 22: For each and every document listed on Attachment A for which defendant denies authenticity as contemplated by Rule 901 of the Federal Rules of Evidence, admit that defendant has reviewed the document contained on the CD-ROM (Attachment B). RESPONSE: Subject to and without waiving the General Objections stated above, Lorillard Tobacco Company incorporates its objections to Request No. 1. REOUEST NO. 23: For each and every document listed on Attachment A for which defendatit denies authenticity as contemplated by Rule 901 of the Federal Rules of Evidence, admit that defendant has made an effort to match the document contained on the CD-ROM (Attachment B) with the most comparable document in the defendant's possession, custody or control. RE P NSE: Lorillard Tobacco Company objects to this Request because it must speculate as to the exact meaning plaintiffs place on the phrase "most comparable document" which is subject to varying interpretations and is therefore vague and ambiguous. Subject to and without waiving this objection or the General Objections stated above, Lorillard Tobacco Company incorporates its objections to Request No. 1. REMST FOR PRODUCTION REQUEST NO. 1: For each and every document listed on Attachment A for which defendant denies authenticity as contemplated by Rule 901 of the Federal Rules of Evidence, produce a copy of the most comparable document in defendant's possession, custody or control. OD 0\ ts.a -,a C® Oa GEN 1831'79 ~
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i ® 3 RESPONSE: Lorillard, Inc. objects to this Request as overly broad and unduly burdensome because it requests Lorillard, Inc. to admit or deny the authenticity of documents that plaintiffs have not yet selected for use in a manner that would implicate their authenticity. Lorillard, Inc. also objects to this request as overly broad and unduly burdensome to the extent it requests Lorillard, Inc. to admit or deny the authenticity of non-Lorillard, Inc. documents. In this regard, Exhibit A consists of 543 pages setting forth many thousands of multi-page documents none of which are segregated by defendant. Instead, plaintiffs unilaterally request Lorillard, Inc. to review these hundreds of thousands of pages of documents and admit or deny the authenticity of each document. Such tactics are improper, unreasonable, oppressive and burdensome. Plaintiffs, at a minimum, should be required to segregate the respective documents and then serve, at an appropriate time in this case, if any, proper discovery requests to each defendant identifying the respective defendants' own documents for which Plaintiffs seek information. Lorillard, Inc. further objects to this Request to the extent it requests Lorillard, Inc. to admit or deny the authenticity of documents which are protected from discovery by the attorney- client privilege, the work product doctrine, the joint defense privilege or common interest privilege, and/or any other applicable privileges or exemptions. Lorillard, Inc. also objects to this Request as the term authentic is not defined, not used in Rule 901 of the F.R.E., is subject to varying interpretations and, therefore, is vague and ambiguous. Moreover, F.R.E. 901 states that a requirement of authentication as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what the prdponent claims. It is
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0 -4- question is what the proponent claims. It is impossible for Lorillard Tobacco Company to determine "that the matter in question" regarding each respective document is "what the proponent claims." REOUEST NO. 2: For each and every document listed on Attachment A for which defendant denies authenticity as contemplated by Rule 901 of the Federal Rules of Evidence, admit that the document can be found in defendant's files. RESPONSE: Subject to and without waiving the General Objections stated above, Lorillard Tobacco Company incorporates its response and objections to Request No. 1. REOLTEST NO. 3: For each and every document listed on Attachment A for which defendant denies authenticity as contemplated by Rule 901 of the Federal Rules of Evidence, admit that the document was created by'defendant in the ordinary, normal course of business. RESPONSE: Lorillard Tobacco Company objects to this Request on the grounds that it seeks admissions which are not relevant to the issue of authentication or admissibility under Rule 901 of the Federal Rules of Evidence. Lorillard Tobacco Company also objects to this Request because it must speculate as to the exact meaning plaintiffs place on the phrase "ordinary, normal course of business," which is subject to varying interpretations and is therefore vague and ambiguous. Subject to and without waiving these or the General Objections stated above, Lorillard Tobacco Company incorporates its response and objections to Request No. 1. REOLEST NO. 4; For each and every document listed on Attachment A for which defendant denies authenticity as contemplated by Rule 901 of the Federal Rules of Evidence, admit that the document was received by defendant in the ordinary, normal course of business. RESPONSE: Lorillard Tobacco Company objects to this Request on the grounds that it seeks admissions which are not relevant to the issue of authentication or admissibility under Rule GEN 1831'l4
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO PEDRO ROSSELLO, in his capacity as GOVERNOR OF THE COMMONWEALTH OF PUERTO RICO, JOSE A. FUENTES AGOSTINI, in his capacity as ATTORNEY GENERAL OF THE COMMONWEALTH O PUERTO RICO, on behalf of the COMMONWEALTH OF PUERTO RICO, and THE COMMONWEALTH OF PUERTO RICO, Plaintiffs, Civil Case No. 97-1910 (JAF) vs. !BROWN & WILLIAMSON TOBACCO CORPORATION, as successor by merger to THE AMERICAN TOBACCO COMPANY, e al., Defendants. LORILLARD, INC.'S RESPONSES TO THE COMMONWEALTH OF PUERTO RICO'S FIRST SET OF INTERLOCKING REOUESTS FOR ADMISSION AND REOUEST FOR PRODUCTION Lorillard, Inc. hereby files its responses to The Commonwealth of Puerto Rico's First Set of Interlocking Requests for Admission and Requests for Production ("Requests") as follows: GEN 183195
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® -7- RESPONSE: Subject to and without waiving the General Objections stated above. Lorillard Tobacco Company incorporates its objections to Request No. 1. REQUEST NO. 12: For each and every document listed on Attachment A for which defendant denies authenticity as contemplated by Rule 901 of the Federal Rules of Evidence, admit that the court in State of Texas. v. The American Tobacco Company, et al. has ruled the document to be authentic. RESPONSE: Subject to and without waiving the General Objections stated above, Lorillard Tobacco Company incorporates its objections to Request No. 1. REQiJEST NO. 13: For each and every document listed on Attachment A for which defendant denies authenticity as contemplated by Rule 901 of the Federal Rules of Evidence, admit that the court in State of Mississippi. v. Tke American Tobacco Company, et al. has ruled the document to be authentic' RESPONSE: Subject to and without waiving the General Objections stated above, Lorillard Tobacco Company incorporates its objections to Request No. 1. REOUEST NO. 14: For each and every document listed on Attachment A for which defendant denies authenticity as contemplated by Rule 901 of the Federal Rules of Evidence, admit that the court in State of Minnesota, et al.. v. Philip Morris, Inc., et al. has ruled the document to be authentic. RESPONSE: Subject to and without waiving the General Objections stated above, Lorillard Tobacco Company incorporates its objections to Request No. 1. REQUEST NO. 15: For each and every document listed on Attachment A for which defendant denies authenticity as contemplated by Rule 901 of the Federal Rules of Evidence, admit that defendant is denying authenticity on the ground that the document is incomplete. RESPONSE: Subject to and without waiving the General Objections stated above, Lorillard Tobacco Company incorporates its objections to Request No. 1. GEP1 183177
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+ Nov-18-48 ST:58 . P.a SU9420192 saa]paa,PR o6952-0aYz Tel: (787) 711-2900 From-NUNTON * IAMs 8235 ~ T^842 P 20/ZB F-540 Ia Saa haao,Pnctm Riss, tlus tbo L'day cF~1998. PLTOM RICISDEF O$.lilS1TCE Oifice af'ipe DaguryAaome9 Gce+eral fos Lit'sgWoA Fax {787)73a-9188 Ll4W 816'8'tC'ES $WdiMWAClDM.,JP. F.O.>3MM3SI8 SanJpaa,PR 00902,3518 2el: (78a) 722-2363 Fax: (?n ?24-5970 1VFAS, MATS", HBZ:T, R8 1v & 1ooLk as1 Amas suftL sttam sflo SC 294M Tel:(843) Fw (843) 72043285 CHM T. n1>RAND L1-S.D.G I'RO211z10 Btfej 4014 WZpS DU s®c•at . itO tlea'g•mi8w bW'e.t 66-noN-6a
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-2- GENERAL OBJECTIONS A. Lorillard Tobacco Company objects to these Requests as overly broad and unduly burdensome to the extent they request Lorillard to admit or deny the authenticity of non-Lorillard documents. B. Lorillard Tobacco Company objects to these Requests as overly broad and unduly burdensome to the extent they request Lorillard to admit or deny the authenticity of documents which plaintiffs have not yet selected for use in a manner that would implicate their authenticity. C. Lorillard Tobacco Company objects to these Requests to the extent they request Lorillard Tobacco Company to admit or deny the authenticity of documents which are protected from discovery by the attorney-client privilege, the work product doctrine, the joint defense privilege or common interest privilege, and/or any other applicable privileges or exemptions. Numerous documents listed on Attachment A appear to be documents of co-defendants or third parties other than Lorillard Tobacco Company. It is oppressive, burdensome and unreasonable for plaintiffs to try and force Lorillard Tobacco Company to scrutinize each of these documents consisting of hundreds of thousands of pages to determine if a claim of privilege or protection is applicable. Lorillard Tobacco Company reserves its right to assert applicable privilege and protection objections in the future. Lorillard Tobacco Company has not waived, and does not waive, its claim of privilege or protection with regard to any such document. Furthermore, Lorillard Tobacco Company does not waive, and • cannot waive, the claims of privilege or protection of others. D. Lorillard Tobacco Company objects to these Requests to the extent they seek documents relating to the advertising, marketing or promotion of cigarettes after July 4, 1969 on the grounds that they seek documents relating to claims that are preempted by the Federal Cigarette Labeling and Advertising Act, codified as amended at 15 U.S.C. § § 1331-41. See Cipollone v. Ligeett Group. Inc., 505 U.S. 504 (1992). These General Objections are incorporated into the following responses and shall be deemed continuing as to each Request, whether or not specifically stated, and are not waived, nor in any way limited, by the responses. REQUESTS FOR ADiVIISSION REOUEST NO. 1: Admit that as to each and every document listed on Attachment A, the document is authentic as contemplated by Rule 901 of the Federal Rules of Evidence. GEN 183172
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-8- REOUEST NO. 16: For each and every document listed on Attachment A for which defendant denies authenticity as contemplated by Rule 901 of the Federal Rules of Evidence, admit that the defendant is denying authenticity on the ground that the document is illegible. RESPONSE: Subject to and without waiving the General Objections stated above, Lorillard Tobacco Company incorporates its objections to Request No. 1. REQUES'H' NO. 17: For each and every document listed on Attachment A for which defendant denies authenticity as contemplated by Rule 901 of the Federal Rules of Evidence, admit that the defendant is denying authenticity on the ground that the document contains redactions. RESPONSE: Subject to and without waiving the General Objections stated above, Lorillard Tobacco Company incorporates its objections to Request No. 1. REQUES NO. 18: For each and every document listed on Attachment A for which defendant denies authenticity as contemplated by Rule 901 of the Federal Rules of Evidence, admit that the defendant is denying authenticity on the ground that the document contains interlineations. RESPONSE: Subject to and without waiving the General Objections stated above, Lorillard Tobacco Company incorporates its objections to Request No. 1. REQUEST NO. 19: For each and every document listed on Attachment A for which defendant denies authenticity as contemplated by Rule 901 of the Federal Rules of Evidence, admit that the defendant is denying authenticity on the ground that the document contains marginalia. RESPONSE: Subject to and without waiving the General Objections stated above, Lorillard Tobacco Company incorporates its objections to Request No. 1. REOUEST NO. 20: For each and every document listed on Attachment A for which defendant denies authenticity as contemplated by Rule 901 of the Federal Rules of Evidence, admit that the defendant is denying authenticity on the ground that the document has been altered. RESPONSEe Subject to and without waiving the General Objections stated above, Lorillard Tobacco Company incorporates its objections to Request No. 1. GEPi 183178
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Nnv-10-88 iT:ST Frum-NUNTON a®lIAMS Aatsd: hTcvembea 9, 1998 8235 ® T-042 P.15/20 F-640 Resp=dQUY tA - , Cbeae XC. pusastd, USD }G~~,PA#2I1210 NF3&r MO'd7.EYs Yk)A11$OLT, IUcRnMora & ro= 151 M=ing $sm Saite 600 SC 29402 Td: 843 e 7l®-9284 Fax: 843/720•92,i5 PI7MTO 1atC® D16PARTMEN'1' OF JtTMCS Orco of ahe Depuey AtWrAAy G=ct81 ft bdgatica P.®. Box 9020192 San 3uaR, PR 0090'2-0192 Tel: (787) TZl 2900 F= (787) ?23-9188 LAW CCS U11TJAWM ACQSTA -M P.®. Box 90Z3518 Saa Juaa, PR 00902-3518 Tel: M 7?2-23ff3 Fex: (78?) a24.99?0 6lOBoB 39ted 6406 ®SG d6ta4l. . . dlt a630'I•i&liaid &®t45 u6i^nQTE-5®
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vNov-10-98 17:58 Fram-NUNiON * IAmS CHA1D)B[lURNB & PeiRW, LLY }'iarold A. V'u,att0 WCENfE & CLTBP+AS P.O. BQx 11609 San 702$, PR 00910-1609 Tel: (787) 751-8000 F= (787) 756-5250 COVI11TG1'®Id &$ H's 7aiaae Sifi'e 13'iIda Dd. Smslla Pem S.9NC=$EfAXCES 8r S1FlMi'SC 3313e1iva, Suite 500 P.O. Box 195055 San7uMa, PR 0®919-SOSs Tel (7S7) 756-7880 Faz6: (787) 753-658m 8235 ® T-044 P.19/20 F-640 I~'ir.kwl A. Cwper William 7. Saapes Fi®31Y Ei. weiss laa A. Sbavita SULLlVAN & CYtOMWELL 1?.5 Bwad $taee>s New Yaek NX 10Wi Tel! (212} 3S8-RO®0 Fw (212) S58358d I3avid A BMwAUc PeterJa "is David x Cah= IMWATt81CK&j. TLT.P 1500 OlivesHuilft Pitfsb:ugb, PA 15222 Tel (412)399-6S00 F'ax- (412) 35Sa6501 JACO$, MEDINGER & 8WnGAX,1.t.P Ivdaaio 7. Pabou O`33II1.I-&BOAGFS 250 Mcutpz Riveaa Axemaa, 8° 81oau Sandu=,P$ 00918 Td: (7$?) 764-5181 F= (787) 753-i994 6L/EyS, sA1e.0 9D605 6+7.C 4B6'RI - - 7SC itQ®'t°yo31d ®5'L[ ®5-AGW-65
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0 -lo- Subject to and without waiving this objection or the General Objections stated above, Lorillard, Inc. incorporates its objections to Request for Admission No. 1. In San Juan, Puerto Rico, this 2°d of November, 1998. AXTMAYER ADSUAR MUIVIZ & GOYCO, P.S.C. Attorneys for Lorillard, Inc. P.O. Box 70294 San Juan, Puerto Rico 00936-8294 Tel. (787) 756-9000, Est. 2020 Fax (787) 756-9010 Francisco A. Besosa USDC-PR No. 126502 Marshal D. Mo USDC-PR No. 2'10401 OF COUNSEL: William J. Newbold Adam E. Miller Thompson Coburn One Mercantile Center St. Louis, MO 63101 (314) 552-6000 (314) 552-7597 - fax GEN 183204
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-7- REOUEST NO. 12: For each and every document listed on Attachment A for which defendant denies authenticity as contemplated by Rule 901 of the Federal Rules of Evidence, admit that the court in State of Texas. v. The American Tobacco Company, et al. has ruled the document to be authentic. RESPONSE: Subject to and without waiving the General Objections stated above, Lorillard, Inc. incorporates its objections to Request No. 1. REQUEST NO. 13: For each and every document listed on Attachment A for which defendant denies authenticity as contemplated by Rule 901 of the Federal Rules of Evidence, admit that the court in State of Mississippi. v. The American Tobacco Company, et al. has ruled the document to be authentic. RESPONSE: Subject to and without waiving the General Objections stated above, Lorillard, Inc. incorporates its objections to Request No. 1. REOUEST NO. 14: For each and every document listed on Attachment A for which defendant denies authenticity as contemplated by Rule 901 of the Federal Rules of Evidence, admit that the court in State of Minnesota, et al.. v. Philip Morris, Inc., et al. has ruled the document to be authentic. RESPONSE: Subject to and without waiving the General Objections stated above, Lorillard, Inc. incorporates its objections to Request No. 1. REOUEST NO. 15: For each and every document listed on Attachment A for which defendant denies authenticity as contemplated by Rule 901 of the Federal Rules of Evidence, admit that defendant is denying authenticity on the ground that the document is incomplete. RESPONSE: Subject to and without waiving the General Objections stated above, Lorillard, Inc. incorporates its objections to Request No. 1. RF,QiTEST NO. 16: For each and every document listed on Attachment A for which defendant denies authenticity as contemplated by Rule 901 of the Federal Rules of Evidence, admit that the defendant is denying authenticity on the ground that the document is illegible. w ~ 00 t91 GEN 183201
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® -4- impossible for Lorillard, Inc. to determine "that the matter in question" regarding each respective document is "what the proponent claims." IlEQUEST NO. 2; For each and every document listed on Attachment A for which defendant denies authenticity as contemplated by Rule 901 of the Federal Rules of Evidence, admit that the document can be found in defendant's files. RESPONSE: Subject to and without waiving the General Objections stated above, Lorillard, Inc. incorporates its response and objections to Request No. 1. REOIJEST NO. 3: For each and every document listed on Attachment A for which defendant denies authenticity as contemplated by Rule 901 of the Federal Rules of Evidence, admit that the document was created by defendant in the ordinary, normal course of business. RESPONSE: Lorillard, Inc. objects to this Request on the grounds that it seeks admissions which are not relevant to the issue of authentication or admissibility under Rule 901 of the Federal Rules of Evidence. Lorillard, Inc: also objects to this Request because it must speculate as to-the exact meaning plaintiffs place on the phrase "ordinary, normal course of business," which is subject to varying interpretations and is therefore vague and ambiguous. Subject to and without waiving these or the General Objections stated above, Lorillard, Inc. incorporates its response and objections to Request No. 1. REOUEST NO. 4: For each and every document listed on Attachment A for which defendant denies authenticity as contemplated by Rule 901 of the Federal Rules of Evidence, admit that the document was received by defendant in the ordinary, normal course of business. RESPONSE: Lorillard, Inc. objects to this Request on the grounds that it seeks admissions which are not relevant to the issue of authentication or admissibility under Rule 901 of the Federal Rules of Evidence. Lorillard, Inc. also objects to this Request because it must speculate as to the
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-w®v-s® s5:ss i•aznN_aesFA au Sb:797 724 B;g76 PAO$ 'Zd1g (•; ~d a~ °tm~tey~;e s,z , aag) u~asd aaapoxd V®,u,.10.eaMAud mopPmsaS,< W=qm w4l WE&= fPW MMM . xM9a _°4.tfw ~scTrasAas~ss~s~}eas?~+ta4 [~~ S, ~~p3~~~it~tCi Z (-z ~d~t ~?so~3o sttadd~ aA ~ ' ~? -(ssst °r4rcr) Eip •dftatios p~ess S~ snvs~aa ansss ~ttagpm~, pt~a tq~, ~CipasaBa ut;sea~t+btu ac~ y~y .t ~arn+®~ ac~'at~ soa mq$~ptqou~ ~snun~ paes~ g{sttc~as p~ 2ysa~!p t~~ ~~i a4t ~Ra~ les{R~ ttt s~i sstqtt~ ~p a®. g so,~ ueaaa sgq! pmnotat sesq ~n~d -P~~T~t~a+ ~l~4Paesasteasqe~saetR~t~ t~saa~~sWdsattq limma $AA9,'9iYA.OBid BICD$ MLLOAt eSIKVdtAPd.33t3 M t!S RtCf3=OddO 19 AAV"YSYD MflUt1VUOKM aNV XWOdM Sama= 6y=3W AO ffiLIVIAM{DMMa =1 . ( ( ( "Is IV 'd.teiVBS"F03 OOOVEO,L KVDIBMW ( aS arradraraAqaoma.-xis se `l+t0iLV2tOr222m { 0'J3~10,Llda v NA{TSS ( ( 'A { ( ~~d UV!) D46L-G6 °mA'E 4OC1 ( ( `O= O11mS Ab MT++I&Id®m®o { ML PM`O= ®,LIMd 30 ILL'ITO*3A3E1dM= { MLL3t+3tmpq uo'CYJId C1.LZT3f1ei.3® ( I3L'1V3tbXOJ'sMW MLL BOIV2T3At31J XMMm,€.LY ( oak=62 mqm'ffidLiSt7gy Cwsanx'v3s0T { `O3rio=laS rI0 1it'Yea1[10EqyQ[3z) m3J. 3® ( 2tORtMA®J se Ktt7VIIW ssq a=`p'IT3SSUX O-dQ3d 031g O.LL3i3fld 30 .T=wQ mu 3IU3 .L7R10o I= ZSIQ Su'!'SS Q3LiNI13F{i. NI J _ BVB-d dZ/EB'd ZVB-1 ~/ SEZB EVYbI011 NOiNfIH-W6Jd ESQI EE-Bt-~oN
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lov-10-98 17:54 From-HUNTON a~iAldS 8235 ~ T-042 P.06/20 F-640 not to sbis acAon but to odtet actiaws" iu of Motion az page 5, footaote 2) is prepomous. I$T1te de,fwdants a"c drai the req4esiod aie selated to athes pmdang mbaeco eciions, then duay aust alsa admia ibai tbey ate arlmdd tes tbo instsnt ease. fiw deisndaats zely sasiety uW& tk'as Coun's doasioa ia Ltago iu arSuiag r$m the Coma=wealth's spbpaemas are aull and void. As esplain®d above, not only are the facui of a s]essriy dis9inguisUqbDe fio= t}te ipssaast case, but the defmdants' contemaas a the vaPad4tp affhe subpeapa and che of the aequcsmd abereass aee delt_6=tefly d=apIIve at woTSt ,ud di dngmous at best The vaidicy af tho aa'caVoenas should thesefarebe upheld. ~S~C~0~8E ~Og ~Tfp pCO79~IQ~ ~AY dMCe ~~p~~7vl°$'S SSdJ3POF~8 pp~~~p ~~6iR~VM~i~ii/~NpY.~Y{~T ~ ~ iB~ieg~ 9 Q as~AYL•liL~sMiG fY~i16 IMiV.7kBSs A~g.i&cDN OP' "i " . A cquwaou ezauw util9zad by the toba= iwiasrsy dsuanp l'stigaum ia mbacca casos bes b=m meat wmmdlm ad =mvoty broad ctsims of mamd wosk pmduct p iwbadirg" 'yu'sas defsea pdanlage'"' dukad in the iarsm ease. Over daeca~oft~epa$tsev~alyeaes,ane®~' s~a~®foYdeesfiro>aotheijtuisd°totpoasbave foMt7. - in ° t t®ms - tbat r3tc mbaeao s clAiams of ps'avilep and pz®testlon as to tbese aae aemp~qwitimus fo ia tha 5a~t pIaces 8ar ° • Followi* a rarojeae of sSMupizS of 33 Mbaccai izdpstty 3o wr8iiab cpaaMa of 3'She CeaY* 8uooby resaves so,y =dd atl rigbts to the ' ofwhaxabe'~oiat d~ pain~~* wsrasls ~d wka[ ' the `~oia~ defmse Pavi7ege" prase~ 'Tlm mattas ersaot. Faoarever, befat® tbe Coprt at t3= %= aludgaFatzpauicYSTbejudgeinti~~teo~ oaakPlii#~d~arrislrse,eCal, "Didthc daimpdvii~efoxauehtAate~alsi>l~pd3+aoctea~erwoore®fa'baS!siaek'arswbicdt So hide tlae~S `needlBS'?" See snfla, BYhibit L 6t.-5 $ao7d ®LS9 b9C bp6'GI bi° VAiTS°Sa®m.3 aS'BS 86-noN°®i
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Nov-16-88 17:54 From-NUNTON * 1AMS 8235 0 T-842 P.66/16 F-640 the aagumeras Ba"ased by deftdasts aa iuappl4zable aqd misleadiaV. 7n Lu$®,tbeascaQOcy NEVE$tseaveaithe inglaarty(tbega )wittta mpyofinesvbpo= Aithougitd~emeeemmseTfalSrdYsaatediotBeCourtatslsemosts~ctststus confeseaoe U "jt]he th has demonstrased ape4chM foA issuing and sexving snbgoepas aa aa11-pmsies Ed= == -no_n_'= to the dgmasw ( added), defeAse couaselbassi~eadnsi~edinboth~ aadplradso~tbatssfact aweresaved wi8etho svbpascas iagursaan. (Se~e ua~t of Ocwbes I3,199$, S~us Co~ asp~°e 14, hm 22-24, attached kaeoo as Rxbflxt A and 14 &UPpart of A4otson of Cextaua far aPx+omtiva+Oxft atpW 2.)l Ag®re®ver, Tha doeumeaTS whieh tke thisusts wiR sbWd ligAttspoa, uttvr aRNa, tho dram ofL'tgg= =4 otl= its deYeiogoiag acagaxeiie, are ~i&Y relec~t to dae sase atbaud.$ 1~w dofCOdantshave adopr®d ~be ~adpasitioa;hat aalY d"eswvoty sgeciTseadiy disect~ toward a~ues ca#'tbe withi~the cboi~ ofPuetto ~ieo is raleaaax tothisrasc Aefes~ecauuselskunidm~akeauafSortmawdthe ealtla'sSecoud~ ~$+P1~T,~~n~ouswids-xaagi~g m~'asdipgfheloss~[eam, axmspiracy~w$~tAs b~ve loaso hastbo~aweabfa~limisecl sts ta activitaes of 4ko wit1= Psaat® Ra?w. t',ivea tho mmBadiy of 'the alHegatsaas made bpthe C * ta 9ae mads ia o4er cwc;tlypeadirS actiotss apJAatilFe tObBCY'O=b=y7t1},C °GWMOE1*kE*C a4ivTe1atod '~ et~ ~$4 not 1~1V6 the apFommity D® YC3170E3d. to t110 =Scs 88e th of Pueto 1t.9co'9 Second Amended Ca'CqplaxaE at ~ IO11,136•197,170,180. 217(g), 351(aC), 3H9, 39Q, 3~, 385 aq~+b®71 a~dia"Safks'° 6Lo0s 8:IVd OG69 b~G aa? •q= ., iJ6' tf90'LBU®Y6d 99•9L W^AGN--G .
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~ exact meaning plaintiffs place on the phrase "ordinary, normal course of business," which is ; i I subject to varying interpretations and is therefore vague and ambiguous. Subject to and without waiving these or the General Objections stated above, Lorillard, Inc. incorporates its response and objections to Request No. 1. RFQjJEST NO 5: For each and every document listed on Attachment A for which defendant denies authenticity as contemplated by Rule 901 of the Federal Rules of Evidence, admit that the document was maintained by defendant in the ordinary, normal course of business. RESPONSE: Lorillard, Inc. objects to this Request on the grounds that it seeks admissions which are not relevant to the issue of authentication or admissibility under Rule 901 of the Federal Rules of Evidence. Lorillard, Inc. also objects to this Request because it must speculate as to the exact meaning plaintiffs place on the phrase "ordinary, normal course of business," which is subject to varying interpretations and is therefore vague and ambiguous. Subject to and without waiving these or the General Objections stated above, Lorillard, Inc. incorporates its response and objections to Request No. 1. REOYJEST NO. 6: For each and every document listed on Attachment A for which defendant denies authenticity as contemplated by Rule 901 of the Federal Rules of Evidence, admit that the document has been in existence since at least December 15, 1977. RESPONSE: Subject to and without waiving the General Objections stated above, Lorillard, Inc. incorporates its objections to Request No. 1. REOUES'1' NO. 7: For each and every document listed on Attachment A for which defendant denies authenticity as contemplated by Rule 901 of the Federal Rules of Evidence, admit that the defendant has admitted the authenticity of the document in State of Florida, et al. v. The American Tobacco Company, et al. GEl`I 183199
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i 0 0 SRRVICE LIST I HEREBY CERTIFY that a true and exact copy of Lorillard, Inc.'s Responses to.the Commonwealth of Puerto Rico's First Set of Interlocking Requests for Admission and Request for Production will be served by mail on: Pedro J. Durand Deputy Attorney General for Litigation Department of Justice P. O. Box 9020912 San Juan, PR 00902-0192 Benjamin Acosta Law Offices of Benjamin Acosta, Jr. P. 0. Box 9023518 San Juan, PR 00902-3518 Ronald Motley Ness, Motley, Loadholt, Richardson & Poole P. O. Box 1137 Charleston, SC 29402 Jack E. McClard Douglas W. Davis Maya M. Eckstein Hunton & Williams Riverfront Plaza 951 East Byrd Street Richmond, VA 23219-4074 Mark Cunha Andrew T. Frankel Kathleen Turland Simpson Thacher & Bartlett 425 Lexington Avenue New York, NY 10017-3954 Eric Tulla Rivera, Tulla & Ferrer 50 Quisqueya Street Hato Ray San Juan, PR 00917 Sam Mills Daniel F. Kolb Vincent T. Chang Davis Polk & Wardwell 450 Lexington Avenue New York, NY 10017 Robert F. McDermott, Jr. Jones, Day, Reavis & Pogue Metropolitan Square 1450 G Street, NW Washington, DC 20005 Manuel A. Guzman P. O. Box 193850 San Juan, PR 00919-3850 Peter Bellacosa Kirkland & Ellis 153 E. 53rd Street New York, NY 10022 Robert Gaffey Michael S. Chernis Jones, Day, Reavis & Pogue 599 Lexington Avenue New York, NY 10002 GEN 183205
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0 47
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® -2- GENERAL OBJECTIONS A. Lorillard, Inc. objects to these Requests as overly broad and unduly burdensome . to the extent they request Lorillard, Inc. to admit or deny the authenticity of non-Lorillard, Inc. documents. B. Lorillard, Inc. objects to these Requests as overly broad and unduly burdensome to the extent they request Lorillard, Inc. to admit or deny the authenticity of documents which plaintiffs have not yet selected for use in a manner that would implicate their authenticity. C. Lorillard, Inc. objects to these Requests to the extent they request Ldrillard, Inc. to admit or deny the authenticity of documents which are protected from discovery by the attorney- client privilege, the work product doctrine, the joint defense privilege or common interest privilege, and/or any other applicable privileges or exemptions. Numerous documents listed on Attachment A appear to be documents of co-defendants or other third parties other than Lorillard, Inc. It is oppressive, burdensome and unreasonable for plaintiffs to try and force Lorillard, Inc. to scrutinize each of these docuinents which consist of hundreds of thousands of pages to determine if a claim of privilege or protection is applicable. Lorillard, Inc. reserves its right to assert applicable privilege and protection objections in the future. Lorillard, Inc, has not waived, and does not waive, its claim of privilege or protection with regard to any such document. Furthermore, Lorillard, Inc. does not waive, and cannot waive, the claims of privilege or protection of others. D. Lorillard, Inc. objects to these Requests to the extent they seek documents relating to the advertising, marketing or promotion of cigarettes after July 4, 1969 on the grounds that they seek documents relating to claims that are preempted by the Federal Cigarette Labeling and Advertising Act, codified as amended at 15 U.S.C. § § 1331-41. See Cipollone v. Lig_gett Group, hc, 505 U.S. 504 (1992). These General Objections are incorporated into the following responses and shall be deemed continuing as to each Request, whether or not specifically stated, and are rot waived, nor in any way limited, by the responses. REOLESTS FOR ADMISSIQN REQUEST NO. 1: Admit that as to each and every document listed on Attachment A, the document is authentic as contemplated by Rule 901 of the Federal Rules of Evidence. rn t31N s-Ta ~ ~ ~ ~ rn GEN 183196
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9 0 -9- RESPONSE: Subject to and without waiving the General Objections stated above, Lorillard, Inc. incorporates its objections to Request No. 1. ; REOUEST NO. 22: For each and every document listed on Attachment A for which defendant denies authenticity as contemplated by Rule 901 of the Federal Rules of Evidence, admit that defendant has reviewed the document contained on the CD-ROM (Attachment B). RESPONSE: Subject to and without waiving the General Objections stated above, Lorillard, Inc. incorporates its objections to Request No. 1. REQUEST NO. 23: For each and every document listed on Attachment A for which defendant denies authenticity as contemplated by Rule 901 of the Federal Rules of Evidence, admit that defendant has made an effort to match the document contained on the CD-ROM (Attachment B) with the most comparable document in the defendant's possession, custody or control. RESPONSE: Lorillard, Inc. objects to this Request because it must speculate as to the exact meaning plaintiffs place on the phrase "most comparable document" which is subject to varying interpretations and is therefore vague and ambiguous. Subject to and without waiving this objection or the General Objections stated above, Lorillard, Inc. incorporates its objections to Request No. 1. REQUEST FOR PRODUCTION REOUEST NO. 1: For each and every document listed on Attachment A for which defendant denies authenticity as contemplated by Rule 901 of the Federal Rules of Evidence, produce a copy of the most comparable document in defendant's possession, custody or control. RESPONSE: Lorillard, Inc. objects to this Request because it must speculate as to the exact meaning plaintiffs place on the phrase "most comparable document," which is subject to varying interpretations and is therefore vague and ambiguous. GEN 183203
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0 _6_ RESPONSE: Subject to and without waiving the General Objections stated above, Lorillard, Inc. incorporates its objections to Request No. 1. REOUEST NO 8: For each and every document listed on Attachment A for which defendant denies authenticity as contemplated by Rule 901 of the Federal Rules of Evidence, admit that the defendant has admitted the authenticity of the document in State of Texas v. The American Tobacco Company, et al. RESPONSE: Subject to and without waiving the General Objections stated above, Lorillard, Inc. incorporates its objections to Request No. 1. REOUEST NO. 9: For each and every document listed on Attachment A for which defendant denies authenticity as contemplated by Rule 901 of the Federal Rules of Evidence, admit that the defendant has admitted the authenticity of the document in State of Mississippi v. The American Tobacco Company, et al. RESPONSE: Subject to and without waiving the General Objections stated,above, Lorillard, Inc. incorporates its objections to Request No. 1. REOUEST NO. 10: For each and every document listed on Attachment A for which defendant denies authenticity as contemplated by Rule 901 of the Federal Rules of Evidence, admit that the defendant has admitted the authenticity of the document in State of Minnesota v, Philip Morris, Inc. et al. RESPONSE: Subject to and without waiving the General Objections stated above, Lorillard, Inc. incorporates its objections to Request No. 1. REOi1FST NO. 11: For each and every document listed on Attachment A for which defendant denies authenticity as contemplated by Rule 901 of the Federal Rules of Evidence, admit that the court in State of Florida, et al. v. The American Tobacco Company, et al has ruled the document to be authentic. RESPONSE: Subject to and without waiving the General Objections stated above, Lorillard, Inc. incorporates its objections to Request No. 1.
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® Vicente Santori-Coll Law Offices Hato Rey Plaza, Suite 2 200 Jesus T. Pinero Avenue Hato Rey, PR 00918 Steve Klugman Harry Zirlin Debevoise & Plimpton 875 Third Avenue New York, NY 10022 David Cohen Kirkpatrick & Lockhart 1500 Oliver Building Pittsburgh, PA 15222 Jamie Sifre-Rodriguez Sanchez Betances & Sifre Suite 500, Bolivia 33 Hato Rey, PR 00919 George Bordon Mike Sundermeyer Gerson Zweifach Williams & Coimolly 725 Twelfth Street, N.W. Washington, D.C. 20005-5901 Ramon A. Bauza Higuera Bauza & Davila 63 Fortaleza Street Old San Juan, PR 00901 William Snipes Holly N. Weiss Michael A. Cooper Sullivan & Cromwell 125 Broad Street New York, NY 10004-2498 -12- Hector Reichard de Cardona, Esq. Reichard & Escalera PO Box 364148 San Juan, PR 00936-4148 Pedro Santa Sanchez, Esq. O'Neill & Borges American Int'l Plaza, 8`h Floor 250 Mufloz Rivera Ave. Hato Rey, PR 00918 Edgar Cartagena Santiago, Esq. Goldman Antonetti & Cordova PO Box 70364. San Juan, PR 00936-0364 Marie V. Santacroce, Esq. Kasowitz Benson Torres & Friedman, LLP 1301 Avenue of the Americas New York, NY 10019-6022 Juan A. Ramos Diaz, Esq. Juan A. Ramos Diaz Law Offices 359 de Diego Avenue, Suite 601 San Juan, PR 00909-1711 Salvador Antonetti, Esq. Fiddler Gonzalez & Rodriguez PO Box 363507 San Juan, PR 00936-3507 GEN 183206
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GENERAL OBJECTIONS A. Loews Corporation objects to these Requests as overly broad and unduly burdensome to the extent they request Loews Corporation to admit or deny the authenticity of non- Loews Corporation documents. B. Loews Corporation objects to these Requests as overly broad and unduly burdensome to the extent they request Loews Corporation to admit or deny the authenticity of documents which plaintiffs have not yet selected for use in a manner that would implicate their authenticity. C. Loews Corporation objects to these Requests to the extent they request Loews Corporation to admit or deny the authenticity of documents which are protected from discovery by the attorney-client privilege, the work product doctrine, the joint defense privilege or common interest privilege, and/or any other applicable privileges or exemptions. Numerous documents listed on Attachment A appear to be documents of co-defendants or other third parties other than Loews Corporation. It is oppressive, burdensome and unreasonable for plaintiffs to try and force Loews Corporation to scrutinize each of these documents which consist of hundreds of thousands of pages to determine if a claim of privilege or protection is applicable. Loews Corporation reserves its right to assert applicable privilege and protection objections in the future. Loews Corporation has not waived, and does not waive, its claim of privilege or protection with regard to any such document. Furthermore, Loews Corporation does not waive, and cannot waive, the claims of privilege or protection of others. D. Loews Corporation objects to these Requests to the extent they seek documents relating to the advertising, marketing or promotion of cigarettes after July 4, 1969 on the grounds that they seek documents relating to claims that are preempted by the Federal Cigarette Labeling and Advertising Act, codified as amended at 15 U.S.C. § § 1331-41. See Cipollone v. Liggett Group. Inc., 505 U.S. 504 (1992). These General Objections are incorporated into the following responses and shall be deemed continuing as to each Request, whether or not specifically stated, and are not waived, nor in any way limited, by the responses. REOUESTS FOR ADMISSION REOUEST NO. 1: Admit that as to each and every document listed on Attachment A, the document is authentic as contemplated by Rule 901 of the Federal Rules of Evidence. ~ rn w ~ co tiEri 183184 ~
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8 RESPONSE: Subject to and without waiving the General Objections stated above, Lorillard, Inc. incorporates its objections to Request No. 1. REOUEST NO. 17: For each and every document listed on Attachment A for which defendant denies authenticity as contemplated by Rule 901 of the Federal Rules of Evidence, admit that the defendant is denying authenticity on the ground that the document contains redactions. RESPONSE: Subject to and without waiving the General Objections stated above, Lorillard, Inc. incorporates its objections to Request No. 1. REQgJEST NO. 1S: For each and every document listed on Attachment A for which defendant denies authenticity as contemplated by Rule 901 of the Federal Rules of Evidence, admit that the defendant is denying authenticity on the ground that the document contains interlineations, .RE P NSE: Subject to and without waiving the General Objections stated above, Lorillard, Inc. incorporates its objections to Request No. 1. . REOUEST NO. 19: For each and every document listed on Attachment A for which defendant denies authenticity as contemplated by Rule 901 of the Federal Rules of Evidence, admit that the defendant is denying authenticity on the ground that the document contains marginalia. RESPONSE: Subject to and without waiving the General Objections stated above, Lorillard, Inc. incorporates its objections to Request No. 1. RE@UEST NO. 20: For each and every document listed on Attachment A for which defendant denies authenticity as contemplated by Rule 901 of the Federal Rules of Evidence, admit that the defendant is denying authenticity on the ground that the document has been altered. RESPONSE: Subject to and without waiving the General Objections stated above, Lorillard, Inc. incorporates its objections to Request No. 1. REQUEST NO. 21: For each and every document listed on Attachment A for which defendant denies authenticity as contemplated by Rule 901 of the Federal Rules of Evidence on the grounds that the document is incomplete and/or illegible, contains redactions, interlineations and/or marginalia and/or has been altered, admit defendant has in its possession, custody or control a copy of the document in its original form. co w 4- w GEtsi 183202 C)C(Yi N
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! -3_ RESPONSE: Loews Corporation objects to this Request as overly broad and unduly burdensome because it requests Loews Corporation to admit or deny the authenticity of documents that plaintiffs have not yet selected for use in a manner that would implicate their authenticity. Loews Corporation also objects to this request as overly broad and unduly burdensome to the extent it requests Loews Corporation to admit or deny the authenticity of non-Loews Corporation documents. In this regard, Exhibit A consists of 543 pages setting forth many thousands of multi- page documents none of which are segregated by defendant. Instead, plaintiffs unilaterally request Loews Corporation to review these hundreds of thousands of pages of documents and admit or deny the authenticity of each document. Such tactics are improper, unreasonable, oppressive and burdensome. Plaintiffs, at a minimum, should be required to segregate the respective documents and then serve, at an appropriate time in this case, if any, proper discovery requests to each defendant identifying the respective defendants' own documents for which Plaintiffs seek information. Loews Corporation further objects to this Request to the extent it requests Loews Corporation to admit or deny the authenticity of documents which are protected from discovery by the attorney-client privilege, the work product doctrine, the joint defense privilege or common interest privilege, and/or any other applicable privileges or exemptions. Loews Corporation also objects to this Request as the term authentic is not defined, not used in Rule 901 of the F.R.E., is subject to varying interpretations and, therefore, is vague and ambiguous. Moreover, F.R.E. 901 states that a requirement of authentication as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what the proponent claims. Co rn CJ 4,- Ca GEN 183185 a: CN 0
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/ ® IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO PEDRO ROSSELLO, in his capacity as GOVERNOR OF THE COMMONWEALTH OF PUERTO RICO, JOSE A. FUENTES AGOSTINI, in his capacity as ATTORNEY GENERAL OF THE COMMONWEALTH O PUERTO RICO, on behalf of the COMMONWEALTH OF PUERTO RICO, and THE COMMONWEALTH OF PUERTO RICO, Plaintiffs, Civil Case No. 97-1910 (JAF) vs. BROWN & WILLIAMSON TOBACCO CORPORATION, as successor by merger to THE AMERICAN TOBACCO COMPANY, e al., Defendants. LOEWS CORPORATION'S RESPONSES TO THE COMMONWEALTH OF PUERTO RICO'S FIRST SET OF INTERLOCKING REOUESTS FOR ADMISSION AND REQUEST FOR PRODUCTION Loews Corporation hereby files its responses to The Commonwealth of Puerto Rico's First Set of Interlocking Requests for Admission and Requests for Production ("Requests") as follows': 'Loews Corporation expressly continues to maintain that it is not subject to the in nersonam jurisdiction of this Court, and neither consents, nor waives any objection, to this Court's in nersonam jurisdiction over it by filing these responses and objections to these Interlocking Requests for Admission and Request for Production. ~ C:v ~ . co GF.N 183183 rr' U7 co
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Nov-10-9H 17:56 From-HUNTON ~LIAHS 8235 ~ T-042 P.11/20 F-640 SpeoW ' Masw j.yggett Rcpo;t, p. 48, see also Jurt®ra v. dt..l- dteymolds Tabaccb Ce,1:70 F R.D• 481~ 439 (A. $an.1997) of a reviea+ ofsGientiPtclitetatutebYa ' ' assispa~zbele:gal .-dorsaot dtzalcthe doc,m= t witb,wo¢3cptoduoeQamomfty.°7. .a. 3®7- I aot~ tbat many aftt~ defand~ts hzvewithds•aee~ olaims of paivslege over tattdomlY seieceed bY me aedlar selwmd by g9sizstiffs Sor in s4ma teview. For exaarple, Pia4BSonis has wutsdaa.wn chu of grivilege far 38 docmaatts eeYected by aae wwas pbinga PFsyaolbs, CT& S!T Judaskies, HATCa and Ti 3m made stmilaY witbdrawsls of ebmm of pavUgge. In ftat [®f1 tite awmber of ptNe$e oiaims wi*dmwj, I ata coaaemed tbat bave dostuaaeats as FtivgcpiL --- Februaty 10, 1999 RepOtt of SpeqaY Masoec FkdWp of Faei, Cwalt>sjona of Law aod ~ ws upifts N~-i3ggt Ptive]ege Cls~.'~ Ta aeceptit:g ebe ~Cat oY The Special bQaseeS tbe CUaq8t Cautt c= to tlta additioaal conolusions: 2(b). UpIM review of raudomly Selocted dOMMaA it'ka$ beea t1>AS Defeadaats have Su n>uueaous mmm slaiwed priwilega wbete naae ns d®e ac4 W"Y *= dio BtX42&-.. 9- Tbss Ord= does a®t qply to aW &M wbuis a Naa i,iggetB Defe4daat has wid4awa ite clabn of Iuivilege. Tbc Cooatt aoiI% bowevet; that t}w mrabea of fi= wbich wlt]uipew da9ms of pti®ilege aft ae S,pec9ai MUSWs inidal xevieav of L3gw awva tkat oki= of yxiwasp weze nat aix~ys:zaadG in ~aod fairb. Mamh 7,1998 Oadat W$t[t 14espaa to Idon-Liggett Defemdsnts' Objwtions w the spec9a1 A4asws's8epar~I~dFe~btustyl®,199S.KIutbe yatg tbed~reuit C®qSt wloto: 43Atracbed as F.x6ibit J. tmAR3cbed as Fxb%it$. 9 UTswa 39tad ®css a2t F~a=4s br aaoz•uq~a ~e~cs as^naes-sa
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Nov-10-98 17:55 From-HUNTON * lA6!5 8235 0 T-042 P.09/2o F-840 suue ®fd4"uanesota v Pkilip Mamslascm actiav concluded: -.. Matiy docusacts randomly selocted and revicwcl acvealed tt3ax RT=r Llg,geetDe(eodaats elauaedpiivalegeforstao=i>7a1=Ca=aadeovcsleaexs whioh ennuiaed .ttot}tiug of a aatuae = auy pmdleged. ~. Qne document si~g$' withoau pxopased CakYbmis legialat"sao. Dd tLe Defemdan>s eleimSaivilege Yoa suoh d,aauaiat si=plYT® creaCe morc of a"hapstacY' iUaVUlncb tW bido tluis "ateedles'": Did they fail so canduct a aeview afTbe d¢e~ts su~ci~et to m~ice a So®d fasth claun of psivilaRe an the *ss m5mam": the xr.ason, claiming Pd4oge whm •aae evata uguably cxiscs cons6auaes abe»om moreavea, a p~trsuof' claims®ffpav~ptaa~tsWe~ A~msall, du doc>suuau aitai "ve eam t®1i92rt afces m,ly anmd= selectioa of do=29= wecx "qoWbackad." Howsnamymosc woasld have 6eera found iYat»e md resoorces w&eEB jsio] wm1a+iiad and aa4ac do re®iewed? A6 Doessqbca 16, 1997 ower At'ub RCSpecs to Nan-J..iaett ' CBbj4culaw ®o theSpecial D?asteeslLepoat DaBe3 Sepiember 10, 1997 Cmxemal eiraiosss cm umt} u • Faliowing a xaview of 3aw SWupia$s oftobecw iadostry cuta us which claims of ametauy-tliesu ptivilege aoRiJor ve* pnadsux peYOt»cIIOn wete tbe Spaoia11o4estee ia tlu Sluate aj~roea x Pltai~ Massis~ aerica ~ 279. 1fad dlat ' clanas of IdviieV=ovesly-bser$d. Dcfgaftm ba+ra aasettad luivlloga ovar of cqmmmcaUcm raz or eo=rn akWIAe ==ch.. As 7udV Haparick eoaclas" however: hadac' cerco3ducezeseadLiam t6c saW of tir* gmdacts, and to wm af ft sermccb ressft yyVam mwim. 7bat obl{gam to 414SC1WSB 6s9wd be bythe • ofa0totaeyaclient ' QpftofMsy9,g28. Nor dWes ' become ' mscdy. bo=e k is inampomw iam s betwm im a8torney mrtl client. t'1pjoProi Cb. v$]A1Ped S7afes, 449 U.S. $838 395-96, 101 S-Cr. 677, b85-$6. I.ega sitrspl,y'Wc Aot ciladala iu whichgublic, 9aisiae•s or aclmical m•y ba glreed w ddcm dlsasvtty. ..•" Simoae v. G-L1: SeaaFe, 816 F.2d 397, qp3 (M Cir,1987j, c4m dersiet2; 4Sri U.S. 917 (19ST). 'aA.tiTacdud ss Fahtt-dt1. 7 Eeasa wtnid 0486 6Ze FH4°41 3SC v9QT=1a®294 TW-&3 E!B-noN-®e
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. Nov-10-98 17:57 Fron-HUNTON *LIAMS 8235 (a T-042 P.16/20 F-840 t°ER'PdFTCATE 9E~~F.R_= I FIM=Y CER7IFY that a copy of Tho C®mrnonwealth of Purato Rias'a M oP7.awiAOppositi0ato ' MbtaouforPmtsdive(?cde[Pnasbemsent by faesim~e u-dqsmWaa osU.9. )&1m: CA1V BRANM YNC. [FG1riC.] IiRL1IM 111VERTCAIY TOBACCO CO)dPAi+iYY LTD BdRNAR7SC6), bNC. P$A.I$ MtlRRIS INRAM IVtORMS V1.S.A.) PEW MORMS CQWA1+lU,S, INC and RJ RMpLAS ?OBACCO Cm1YIpANY SelvadRr A==oR FYaibetto 1. ~ 1'atrz kTDDLER CaQ & Sid7F.2 P.Q 8cx 359SU7 9au Iuaas, laR. 0M(r3i07 Telr (787) 753-3113 F= (7S7) 7S8-3i09 b>JIt 3NC Sm trius Dodel F. Kolb Vim= T Qas DAVIS PQIR & WAItDWELL 4S0Y.caA&pAvcmto RTew Ywtir, NY 10017 F= (24) 45r~4600 P IIYCT8D ORi&BP NY UUs..A.) 1°F3xi,.'[F' MflRIB CAMPb9NlEB I1VC. Manatol Quvm Garl®s MAN[IEL GEM"N LAW F a. Rox 1938So Sm7uaa, P$ 00919-3850 Ta: tM7)'s6-6aa0 Fax, (7M'756-7940 Daugias W_ Davis 7ack E. DqsCClad FIiAdTtaN & VALLIAM 951 Fast$yrd $taem 'F.ast Tovies VA zs219 Tcl: (W) as8--M54 Fax: (804) 7"1$ 6tASC a9Wa ®t63 6ic eBtoai idr mea'L-iiA8t3 E0'Ct bi-naBt-SW
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-5- speculate as to the exact meaning plaintiffs place on the phrase "ordinary, normal course of business," which is subject to varying interpretations and is therefore vague and ambiguous. Subject to and without waiving these or the General Objections stated above, Loews Corporation incorporates its response and objections to Request No. 1. REOUEST NO. 5: For each and every document listed on Attachment A for which defendant denies authenticity as contemplated by Rule 901 of the Federal Rules of Evidence, admit that the document was maintained by defendant in the ordinary, normal course of business. RESPONSE: Loews Corporation objects to this Request on the grounds that it seeks admissions which are not relevant to the issue of authentication or admissibility under Rule 901 of the Federal Rules of Evidence. Loews Corporation also objects to this Request because it must speculate as to the exact meaning plaintiffs place on the phrase "ordinary, normal course of business," which is subject to varying interpretations and is therefore vague and ambiguous. Subject to and without waiving these or the General Objections stated above, Loews Corporation incorporates its response and objections to Request No. 1. REOUESr NO. 6: For each and every document listed on Attachment A for which defendant denies authenticity as contemplated by Rule 901 of the Federal Rules of Evidence, admit that the document has been in existence since at least December 15, 1977. RESPONSE: Subject to and without waiving the General Objections stated above, Loews Corporation incorporates its objections to Request No. 1. REQUES'd' NO. 7: For each and every document listed on Attachment A for which defendant denies authenticity as contemplated by Rule 901 of the Federal Rules of Evidence, admit that the defendant has admitted the authenticity of the document in State of Florida, et al. v. The American Tobacco Company, et al.
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-8- RESPONSE: Subject to and without waiving the General Objections stated above, Loews j i Corporation incorporates its objections to Request No. 1. REQUEST NO. 17: For each and every document listed on Attachment A for which defendant denies authenticity as contemplated by Rule 901 of the Federal Rules of Evidence, admit that the defendant is denying authenticity on the ground that.the document contains redactions. RESPONSE: Subject to and without waiving the General Objections stated above, Loews Corporation incorporates its objections to Request No. 1. REOUEST NO. 18: For each and every document listed on Attachment A for which defendant denies authenticity as contemplated by Rule 901 of the Federal Rules of Evidence, admit that the defendant is denying authenticity on the ground that the document contains interlineations. RESPONSE: Subject to and without waiving the General Objections stated. above, Loews Corporation incorporates its objections to Request No. 1. REOUEST NO. 19: For each and every document listed on Attachment A for which defendant denies authenticity as contemplated by Rule 901 of the Federal Rules of Evidence, admit that the defendant is denying authenticity on the ground that the document contains marginalia. RESPONSE: Subject to and without waiving the General Objections stated above, Loews Corporation incorporates its objections, to Request No. 1. REIZUEST NO. 20: For each and every document listed on Attachment A for which defendant denies authenticity as contemplated by Rule 901 of the Federal Rules of Evidence, admit that the defendant is denying authenticity on the ground that the document has been altered. RESPONSE: Subject to and without waiving the General Objections stated above, Loews Corporation incorporates its objections to Request No. 1. REQUEST NO. 21: For each and every document listed on Attachment A for which defendant denies authenticity as contemplated by Rule 901 of the Federal Rules of Evidence on the grounds that the document is incomplete and/or illegible, contains redactions, interlineations and/or marginalia and/or has been altered, admit defendant has in its possession, custody or control a copy of the document in its original form. CD 01) (A -P~- a) GEN 183190 ~
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0 -9- RESPONSE: Subject to and without waiving the General Objections stated above, Loews Corporation incorporates its objections to Request No. 1. REOUEST NO 22: For each and every document listed on Attachment A for which defendant denies authenticity as contemplated by Rule 901 of the Federal Rules of Evidence, admit that defendant has reviewed the document contained on the CD-ROM (Attachment B). RESPONSE: Subject to and without waiving the General Objections stated above, Loews Corporation incorporates its objections to Request No. 1. REQUEST NO. 23: For each and every document listed on Attachment A for which defendant denies authenticity as contemplated by Rule 901 of the Federal Rules of Evidence, admit that defendant has made an effort to match the document contained on the CD-ROM (Attachinent B) with the most comparable document in the defendant's possession, custody or control. RESPONSE: Loews Corporation objects to this Request because it must speculate as to the exact meaning plaintiffs place on the phrase "most comparable document" which is subject to varying interpretations and is therefore vague and ambiguous. Subject to and without waiving this objection or the General Objections stated above, Loews Corporation incorporates its objections to Request No. 1. REOUEST FOR PRODUCTION REQUEST NO. 1: For each and every document listed on Attachment A for which defendant denies authenticity as contemplated by Rule 901 of the Federal Rules of Evidence, produce a copy of the most comparable document in defendant's possession, custody or control. RESPONSE: Loews Corporation objects to this Request because it must speculate as to the exact meaning plaintiffs place on the phrase "most comparable document," which is subject to varying interpretations and is therefore vague and ambiguous. GEN 183191
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® 46
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® -10- Subject to and without waiving this objection or the General Objections stated above, j ~ Loews Corporation incorporates its objections to Request for Admission No. 1. In San Juan, Puerto Rico, this 2nd of November, 1998. AXTMAYER ADSUAR MU1VI2; & GOYCO, P.S.C. Attorneys for Loews Corporation P.O. Box 70294 San Juan, Puerto Rico 00936-8294 Tel. (787) 756-9000, Est. 2020 Fax (787) 756-9010 Francisco A. Besosa USDC-PR No. 126502 OF COUNSEL: William J. Newbold Adam E. Miller Thompson Coburn One Mercantile Center St. Louis, MO 63101 (314) 552-6000 (314) 552-7597 - fax USDC-PR No Marshal D. Mor GEN 183192
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A -7- 0 REOUEST NO. 12: For each and every document listed on Attachment A for which defendant denies authenticity as contemplated by Rule 901 of the Federal Rules of Evidence, admit that the court in State of Texas. v. The American Tobacco Company, et al. has ruled the document to be authentic. RESPONSE: Subject to and without waiving the General Objections stated above, Loews Corporation incorporates its objections to Request No. 1. REQUEST NO. 13: For each and every document listed on Attachment A for which defendant denies authenticity as contemplated by Rule 901 of the Federal Rules of Evidence, admit that the court in State of Mississippi. v. The American Tobacco Company, et al. has ruled the document to be authentic. RESPONSE: Subject to and without waiving the General Objections stated above, Loews Corporation incorporates its objections to Request No. 1. REOUEST NO. 14: For each and every document listed on Attachment A for which defendant denies authenticity as contemplated by Rule 901 of the Federal Rules of Evidence, admit that the court in State of Minnesota, et al.. v. Philip Morris, Inc., et al. has ruled the document to be authentic. RESPONSE: Subject to and without waiving the General Objections stated above, Loews Corporation incorporates its objections to Request No. 1. REOUEST NO. 15: For each and every document listed on Attachment A for which defendant denies authenticity as contemplated by Rule 901 of the Federal Rules of Evidence, admit that defendant is denying authenticity on the ground that the document is incomplete. RESPONSE: Subject to and without waiving the General Objections stated above, Loews Corporation incorporates its objections to Request No. 1. REOUEST NO. 16: For each and every document listed on Attachment A for which defendant denies authenticity as contemplated by Rule 901 of the Federal Rules of Evidence, admit that the defendant is denying authenticity on the ground that the document is illegible. -r GEN 183189
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Nov-10-98 17:57 Frum-HUNTON OLIAMS 8235 0 T-042 P.14/20 F-640 Evenifdae 519ngoriAd=ing ofthe bssaesisnoLLath= & WetkSns' ovu7L isnecranyinbexwd som tae" ofideati£yiamft do>:ummts fsmeivad &o=Web&ter & Shoffteid orM>sdge, Kas% Gel3uie, Aleacaodes & Fadon, which wrre a]sa sophisCowd t=nes. TEus mef7s s}>at om gsovps of s1u doc+mentsiacpealWs®ou43beWk=atedwidmutgenced fot ' eaofeachmdswerypsw Defeadaats eaaaot mska thn a-gumomeat aA sbe tasgories of doewncsus wbich arapossessodby LatAam&'~7~tjomsazeasl~jaotCOattoaaoycIirntptivide~eoawarieytsuia~ct~rsse~edtia Ftuthetmarm, ata,y auamey udmed t® the acvow offt daaampess wou3dbe wzli vaed in pai,rikge Waes aadd vM1Dld bc CzpW0 of o wht*Ei a was SvbjCtt Io juiVikV or wi91k piodSlC4 withous>~e~d2pagaofdratdosiaas~er. Tdeitbarti2oseviewof~IaeLaal~a~ Watk~s ®z:~ly,tbeseviacvofibeodus wauldbeasiaae as hsve ~~ sathe eveattbatthza Cotutd~ tbeB ~far~ao$p> ~zos°iFarpzocess isnocasay, ehe mustEe fcacedtoeondnasuaazad9awiaa apetiodoftuae, ao 1a~a abm d>m dns. WHERZKMP, the Cw==weakh baebyrv=qaasts tbsa dusNoao:" Comas declstetbat 6Y6 wVr.rpyft mco48i4aerilk7wwa4=y {flc a mdabssmavemotioaforaprosceavaarft a>adimft eems.apaa-ravi~srptoc= is tofsaa e xU to cc>adttasycUpwsovicwwirhia a lepaiod afdmea sach as akarW days. 12 GE/ET 3o12d ®Gas ®i6L iQz-QY ad° q$O'B°Np#3 EA'GI 88-A®18-6
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® -4- It is impossible for Loews Corporation to determine "that the matter in question" regarding each respective document is "what the proponent claims." REQUEST NO 2• For each and every document listed on Attachment A for which defendant denies authenticity as contemplated by Rule 901 of the Federal Rules of Evidence, admit that the document can be found in defendant's files. RESPONSE: Subject to and without waiving the General Objections stated above, Loews Corporation incorporates its response and objections to Request No. 1. R~ZLTE, ST NO. 3: For each and every document listed on Attachment A for which defendant denies authenticity as contemplated by Rule 901 of the Federal Rules of Evidence, admit that the document was created by defendant in the ordinary, normal course of business. RESPONSE: Loews Corporation objects to this Request on the grounds that it seeks admissions which are not relevant to the issue of authentication or admissibility under Rule 901 of the Federal Rules of Evidence. Loews Corporation also objects to this Request because it must speculate as to the exact meaning plaintiffs place on the phrase "ordinary, normal- course of business," which is subject to varying interpretations and is therefore vague and ambiguous. Subject to and without waiving these or the General Objections stated above, Loews Corporation incorporates its response and objections to Request No. 1. RE'OLiFST NO. 4: For each and every document listed on Attachment A for which defendant denies authenticity as contemplated by Rule 901 of the Federal Rules of Evidence, admit that the document was received by defendant in the ordinary, normal course of business. RESPONSE: Loews Corporation objects to this Request on the grounds that it seeks admissions which are not relevant to the issue of authentication or admissibility under Rule 901 of the Federal Rules of Evidence. Loews Corporation also objects to this Request because it must I
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® _6_ RESPONSE: Subject to and without waiving the General Objections stated above, Loews Corporation incorporates its objections to Request No. 1. R_EOUEST NO, 8: For each and every document listed on Attachment A for which defendant denies authenticity as contemplated by Rule 901 of the Federal Rules of Evidence, admit that the defendant has admitted the authenticity of the document in State of Texas v. The American Tobacco Company, et al. RESPONSE: Subject to and without waiving the General Objections stated above, Loews Corporation incorporates its objections to Request No. 1. REOiTEST NO, 9: For each and every document listed on Attachment A for which defendant denies authenticity as contemplated by Rule 901 of the Federal Rules of Evidence, admit that the defendant has admitted the authenticity of the document in State of Mississippi v. The American Tobacco Company, et al. RESPONSE: Subject to and without waiving the General Objections stated above, Loews Corporation incorporates its objections to Request No. 1. REZLEST NO 10: For each and every document listed on Attachment A for which defendant denies authenticity as contemplated by Rule 901 of the Federal Rules of Evidence, admit that the defendant has admitted the authenticity of the document in State of Minnesota v. Philip Morris, Inc. et al. RESPONSE: Subject to and without waiving the General Objections stated above, Loews Corporation incorporates its objections to Request No. 1. REQUEST NO, 11: For each and every document listed on Attachment A for which defendant denies authenticity as contemplated by Rule 901 of the Federal Rules of Evidence, admit that the court in State of Florida, et al. v. The American Tobacco Company, et al has ruled the docuinentto be authentic. RESPONSE: Subject to and without waiving the General Objections stated above, Loews Corporation incorporates its objections to Request No. 1. GEN 183189
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j -12- Vicente Santori-Coll Law Offices Hato Rey Plaza, Suite 2 200 Jesus T. Pinero Avenue Hato Rey; PR 00918 Steve Klugman Harry Zirlin Debevoise & Plimpton 875 Third Avenue New York, NY 10022 David Cohen Kirkpatrick & Lockhart 1500 Oliver Building Pittsburgh, PA 15222 Jamie Sifre-Rodriguez . Sanchez Betances & Sifre Suite 500, Bolivia 33 Hato Rey, PR 00919 George Bordon Mike Sundermeyer Gerson Zweifach Williams & Connolly 725 Twelfth Street, N.W. Washington, D.C. 20005-5901 Ramon A. Bauza Higuera Bauza &.Davila 63 Fortaleza Street Old San Juan, PR 00901 William Snipes Holly N. Weiss Michael A. Cooper Sullivan & Cromwell 125 Broad Street New York, NY 10004-2498 Hector Reichard de Cardona, Esq. Reichard &. Escalera PO Box 364148 San Juan, PR 00936-4148 Pedro Santa Sanchez, Esq. O'Neill & Borges American Int'l Plaza, e Floor 250 Munoz Rivera Ave. Hato Rey, PR 00918 Edgar Cartagena Santiago, Esq. Goldman Antonetti & Cordova PO Box 70364 San Juan, PR 00936-0364 Marie V. Santacroce, Esq. Kasowitz Benson Torres & Friedman, LLP 1301 Avenue of the Americas New York, NY 10019-6022 Juan A. Ramos Diaz, Esq. Juan A. Ramos Diaz Law Offices 359 de Diego Avenue, Suite 601 San Juan, PR 00909-1711 Salvador Antonetti, Esq. Fiddler Gonzalez & Rodriguez PO Box 363507 San Juan, PR 00936-3507 GEl`i 1g3194 ~
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Nov-10-98 17:54 From-HUNTON a& IAMS 8235 0 T-842 P.04/ZO P-640 3. Tkat psior so any paoducdon of durnments the defeadants shouid be giveas the oppartnadty eoaevscwrbedocumensaodm~iaisseqoaesudaadcte~coapsiviiegelog, ~mancsssehgv~sBe enmkc aE least seven ffi®nt6s& f®r jqst ®n fte ssabmaos! (See dCfqadat7ts' MeatoTaAd4iaa iia Suppma rafMoucam at paf,es.) aM CONAMONYdZAY.1`W8 Sg78POEN" ARE VAM AM PktOPF•ii The have impaopaDY sei£zd upoa fts Ccanre's opiaioa ia aJnited &atss x SanAaga-L~,°a,9fi4F.gt~p.43(D~.R 1995~inamisgatSdedsete~pttoquesti0~thevsiufityqftbe sobpoeoae served Aoa thixd-paaeaes by the nwWlh bi Ws agazter Sanleago4W wes a sxim=al == wwlaeeiu adefasse attoz"y auaRted w alse a ciVa! ibr®ugh a fedes23lv- a~dcFvalseia~usand saanic~uapesm~,fbraa' uBpesobnskeanmiaal wse. Theactioasafthaotbmis~a44ef4ise ia larga,malds~useof~acav'sl wwaducsaaaspu'ae"&biOB ' 'oa"mwp®lice t1es,whicbevereonTymatgtaal3y iekaautto the eivil aatS04,tyuewbicbwaep8e.gaDiatbecrb=al Cue, are asit.ydistiagsrishedfroan , thooaseatb~ad. asue ' was C~uu dev r e oe f6t totbe ' h ub ~ e ~ q yo~t s,ea c ~ ~es p a a pzsoga3y Wved sad aatieed m gse in mwiacewi4t$uIe 45 ofahe Feda'3l Rules of CieTke a eae rhe isGeivsdtbe tnof rctas m . auce p ®fsetvaoe5=ifiepenmsmvetaad'm wsththepdataotiec oftBmRnte ~be abat she ~ aiep~bztbe~assEati®n~at thry~be aoTi.fied ef s suhpoM pnos ra it beiag secvod ®r Tipopa fieing ~: as bas bwu ssgg~tediu af~epasE. S~e tba waenatified abauc ~e s~bgoecas pziaeto t}~ei*seCmm dates - wPAicFa w= evea to aa as yet - ww givm suffiuieut uzae wiihimwbie$tt®maicsot}jectoWSap4uo ~sveb~apmad~uedp~tusshe 2 GL/E 3aW.! ®s6s 6aL FCid;as . U!` aaaR'F1QX3 88;5; ®R-[poN-0
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0 SERVICE LIST I HEREBY CERTIFY that a true and exact copy of Loews Corporation's Responses to the i Commonwealth of Puerto Rico's First Set of Interlocking Requests for Admission and Request for Production will be served by mail on: I Pedro J. Durand Deputy Attorney General for Litigation Department of Justice P. O. Box 9020912 San Juan, PR 00902-0192 Benjamin Acosta Law Offices of Benjamin Acosta, Jr. P. O. Box 9023518 San Juan, PR 00902-3518 Ronald Motley Ness, Motley, Loadholt, Richardson & Poole P. O. Box 1137 Charleston, SC 29402 Jack E. McClard Douglas W. Davis Maya M. Eckstein Hunton & Williams Riverfront Plaza 951 East Byrd Street Richmond, VA 23219-4074 Manuel A. Guzman P. O. Box 193850 San Juan, PR 00919-3850 Peter Bellacosa Kirkland & Ellis 153 E. 53rd Street New York, NY 10022 Mark Cunha Andrew T. Frankel Kathleen Turland Simpson Thacher & Bartlett 425 Lexington Avenue New York, NY 10017-3954 Eric Tulla Rivera, Tulla & Ferrer 50 Quisqueya Street Hato Ray San Juan, PR 00917 Sam Mills Daniel F. Kolb Vincent T. Chang Davis Polk & Wardwell 450 Lexington Avenue New York, NY 10017 Robert F. McDermott, Jr. Jones, Day, Reavis & Pogue Metropolitan Square 1450 G Street, NW Washington, DC 20005 Robert Gaffey Michael S. Chernis Jones, Day, Reavis & Pogue 599 Lexington Avenue New York, NY 10002 GEN 183193
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Nav-10-98 1T:54 From-HUNTON ~IAMS 8235 0 T-042 P.07/20 F-840 aROmayI.licatpriv7ega=&oiwoitCpradttctpr®iw4=bad heesi Userte.d, the i3aited Stases DissrFce Court for 4m Dt=ca ofRawas ciooludecL Tiie court has rmreftLity ieviewed ali 4ss:W-tWee docu==m A3Tt scems to i+eliov® aad atVsas ibat when au aumy is someAow witisia a dnwm~ni or a doauuenb miadyClaqu Pavi`$o ar'A xk Produa ttisusua$ysaast~recsaiisolcsaieofd~e~byeet Sushiasempiynott3teiaw. Buru.ta x R.7. PAYRoldsTabaeco Goanpasy, Ina,170Fat.A. 481(D.3t:aa.1997Xfitsdiug 32 of 33 docauaesau aot ~riwj~e~ s iu tbe fuaPlace) 5 • F®liawusg a~view of a gMrPMS of 305 tabaseo imdnsSry to wbie6 otaixas of aaomeystisatgrivilegeand/or*~3cgsadtua ~sOt~l'ad bosta assesGCd,tlieLts~ted States I]asrtici Couii 8or tbe ftspaa Aisoriot ofPlruYork ca>&acTudedc F~tl~ofoxegoi:~:e~s,aodthw~esarsediu~e Ogia~iaaaarl OrAerdr0ed11dwtc,h 19,1997. t#e wuzc 5'pds tFracsa~ priwit~e ateaches i~ tbe 305 Special Ps®jws dacam=. .. . .f .Sackrsffii x L4mau romp Inc,1T3 F.R-D. 3S8 (F t).N Y. 29n • FolBowia$ a semiwr of a gtaWiag of 78 tobacce mduauy domma t® wbich ciaitm of clieut ,Qxivitege aadeor wush gsoduet ,pio== bad bexa ttie $p=al. I+6astcc irat8e 5tm efFtoaida x Thedrrneriwa Tvba"o wdga uacluded: 3~aqyaft~e Psvieave8ietla~c invo iabits~sess doman, seiatifia semiehpiqjvcs, aadU biaraehesthanthe sadp6ng aglogai~d~ Icgy 29,1997 Ragoat & (ftft 50 of 61 docmiaeaars tmt p~i~1Eg,~ / pEow" im 4hR fSOt pheC ,' ® prowficm tlaizas tvitttdravra as ro 17 5A=Cbcd as RxhAEt 8. ` as Fxwia C. 00 rn w ~ co ® . ~ 6i/9 3Tyvd 8405 fZ4 LO4-qi .. 2t6` weGT=iiR243 i0°e.i AS-ACN-1
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degree of specificity and particularity what information is being sought. As such, the interrogatories are vague, indefinite, ambiguous and not susceptible to easily discernible meaning. 10. Defendants' First Set of Interrogatories seeks information that is not in the possession, custody or control of or directly known or knowable by the Commonwealth. 11. Defendants' First Set of Interrogatories seeks information that is proprietary to third parties with whom the Commonwealth has contracted for various services. This information is thus either proprietary or not within the possession, custody or control of the Commonwealth. In answering defendants' interrogatories seeking otherwise discoverable information, the Commonwealth will not violate the property rights of such third parties. 12. Defendants' First Set of Interrogatories seeks information reflecting summaries and compilations of data or the identification or segregation of specific information that is in the possession,.custody or control of third parties with whom the Commonwealth has contracted for various services. In answering defendants' interrogatories seeking otherwise discoverable information, the Commonwealth wi11 not engage such third parties to conduct or prepare compilations, summaries, identifications or segregations of information without adequate and acceptable arrangements to compensate such third parties for the work that defendants' request. 13. Defendants' First Set of Interrogatories improperly seeks information that is already in the possession of defendants, is obtainable from another source that is more convenient, less burdensome or less expensive, or is as accessible to defendants as it is to the Commonwealth. As such, the burden of obtaining the sought-after information is substantially the same, or less, for defendants as it is for the Commonwealth. 3 GEN 361-}1S
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'Nov-10-8B 17:58 From-HUNTON * IAM6 8235 ® T-042 P.10/20 F-840 LORtX.Y.A80 PNC69 TSrA, LO$TL7.A.aid TOBACCO CODflPAN'P aud LOEWS CO1iP®&RTdONi Fraoctisc4A.Basss W'ia9=J 18owroQid AJC3SAYER, ADSUAR, ASU= Scott Lindea & G®YCO, P.S.C. THOMPSON & COBURN P.®. Bwc 7Q29a Oae ' Ceater San 7aan, PR 0t5936-$294 5t. Lmsjs, Dd0 63101 Tel; 47$7) 756-9000, En 2020 Tel: (31&) 55T-600® Faac (7$7) 756-9010 8axc (314) 552-7597 VN1TEm STATES TO8ACC6> SO1MdPnriY =d T3ST:INC. Yueate Smvrc•Co11 RsiobaaelBGizia Aat® RegrP7ezn, Snlte 2 Dot$ Flmiag 2Q0 7esps T.1°imma*aa Avestus SISAUpFN, AM S&AT,B, SSCSr AeY, PR 00918 aFT.CDKLZP Te1• (78R)765-9170 919 Tfw AveW - Fax: (7$7) 75F+-6927 Akw Yoi3t, NY 10022 Fax: (212) 735-3525 THE CC1i7NClL FOR I°O -47.S4n iNG 70ara A. Q2ftM FIaTS3f zwin 7t1a= G?VFAd6 & Yd+,USFd3. DEBEVoSS &8LR,4P'B'O13 P.O. B4x 356104 875 Zbia Av=oe san3ttmBl U093Cr6a04 'AYew Yosk, NY 10022 Te3: $787) 7674030 F= (21Z) 909-5$36 Fas:(787)753-4048 ?IE TQSACL'fD EP[ ENC Hrtiroe AQc>>ard d® C=dsma Tdmmar, S Cada RXiIG`SARp &P.O.Bx 364148 Saa puWPR 00936•4148 Te1_ (T87) 755-888$ F= (787) 765-422$ SFLOOK, RAMYa "CO1V Ramen E. Bmaaswm Yazoa K liamI= de Ate11an4 RAt37,A & DAVYLA 63 Ca]Ee Faralca,a Vtejv San 3asu, PR Q0901 Tel: C787)T'13.rJ07s F= C1s7) 7z9a399 8aeAd4ah. SaDlivan, 7T_ r,Wa3Bswd= Uke GMapZaCW=6 8ffa3acw 7=ea VALLWIS & CONNtDI,LY 72sTwdil&Succ; NW Vash%gtol7, p.C. 24005-5901 Fez:,t202) 434-SM9 co ~ w ~ co 6TdLi il".1Vd 0G69 b7.a Lqe•Qa a!° GiQO'{=id02S3 b®=C1 66-AQN-B&!
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Nov-10-88 iT:56 Fram-HUNTON * lAfkS 8235 ® T-042 P.12/ZO F-640 TIi6(-AW8;4'BtY.W8aw 5L6aeefllatNDA-LamBTld CA1:jt4>ftm al2imedpciVilege fotdxrmaeutswbich azec9esrlY andsasargstablguAt ea19t€cd fc ptoteM*m aiptivitege. AVia, this Coust fiads, as it did withxespcot Io the LiMetx 8eWetacm: De>ivraents, sYaatmaay raotLirg c+f a Hrivile8ad aatuae, aWgibiag a AaRera of abtam ~Qii~h7,199~ QL~C[~/3Sh~ttCP&93k IdggeR > ®bjecdous to *e Sgcraal s Ytepmt lJsced Pebaaa>,y 10,1998 .j5 As an csample of thc sYpes of dacmucaIg wluch raise psiv'sI~ ea>xaaass and '' dac aea3S~tLespr;otseview®fdaedac~ehe havacitsdftm"2,a00 fxam; Lig&= 's p:Monsly prgvfted filez; to avvhiich bave assaped a'joitat psisnleoe." tuctuvrwduui in $ttigpwt of at pqc 6) J;oe+ever, in Seatte of a4'ms=ora u F]ailFhtorris Iaee., 7WP8iizira#icl[YUlcalt7mt Y 900 a$'ftso 2,400 wae uat 'enapri~og~datsde~j®ye4ttawodcpxodo~ecgco6ectiaa-ao A1as m ,aQretone tbiad of tlze domnals to wtusla Aaa defe~ olasirA~l a`~asnt pzimilt$e" arsra ffo>astdm Ism no baass far aw claaim of griealege ap Vark pxoduct psa=d= Siwse tlaat 3iute, ordM l>avobeeasnteredin aad8lneisigaA 'aiaimsof FivZeP " t® ahoae Soo 14990 1' as sta®wa aAommed bovc, the ' Daoad shms vfpm+ilcge caumat be Uutzel. Ds8aoeild. a®t be to atopeAe xcd zocmaey discovey ote the pan of the CQmmp=Wr" w;xdzuo" a lcgitimato amm to mapa;x theeft ismp>sc.t'Ole u+SecF-duft g.. asSW OrdaraItad2ed, h6a'eSo as UMc L i'See oeds;z aeti=lted hereTa as F.xkaabit M- 10 ss': I aa%ra aeee 6ZL aae •a: Wr asoi=xoaa ae ~ Lc ae-Aeaa-Se
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO PEDRO ROSSELLO, in his capacity as GOVERNOR ) OF THE COMMONWEALTH OF PUERTO RICO, ) JOSE A. FUENTES AGOSTINI, in his capacity as ) ATTORNEY GENERAL OF THE ) COMMONWEALTH OF PUERTO RICO, on behalf of ) THE COMMONWEALTH. OF PUERTO RICO, and ) THE COMMONWEALTH OF PUERTO RICO, ) ) Plaintiffs, ) ) Civil No. 97-1910 (JAF) V. ) ) BROWN & WILLIAMSON TOBACCO ) CORPORATION as successor by merger to THE ) AMERICAN TOBACCO COMPANY, et al., ) Defendants. THE COMMONWEALTH OF PUERTO RICO'S ANSWERS TO DEFENDANTS' FIRST SET OF INTERROGATORIES The Commonwealth of Puerto Rico objects to Defendants' First Set of Interrogatories for the following reasons: 1. Defendants' First Set of Interrogatories improperly seeks information that is irrelevant to the issues of this litigation. 2. Defendants' First Set of Interrogatories is overly broad, oppressive, unduly burdensome and expensive to answer. Providing answers to these interrogatories would needlessly and improperly interrupt and interfere with the normal operations of the Commonwealth. 3. Defendants' First Set of Interrogatories improperly seeks identification of "all" items or "each" item of responsive information. Such interrogatories are thus overly GEN 461416
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® recovery on an aggregate basis. Further, and once again subject to and without waiver of its above-stated objections, the Commonwealth states that, to the extent this interrogatory seeks the present disclosure of opinions, reports and reliance materials regarding the Commonwealth's damage calculations and damage calculation methodologies prepared by experts who are expected to be called to testify at trial, as well as the identity and background of these experts, such information is protected by the attorney-client privilege and work product doctrine and its disclosure is premature. Certain of this information will be provided at the appropriate time in the pretrial proceedings. The disease codes, injuries and other medical conditions that the Commonwealth asserts to be caused by Tobacco consumption will be identified in the reports prepared by the Damages expert(s). The Commonwealth further objects to this interrogatory since it involves subject matter already before the Court in the form of a stipulated motion to compel: INTERROGATORY NO. 5: For each State program identify separately by each year in the damages period the numbers of current consumers and former consumers of tobacco and persons who have never been consumers of tobacco who received health care and other services to treat tobacco related. disease identifying in your answer how you calculated those numbers. OBJECTIONS AND RESPONSE TO INTERROGATORY NO.5:Subject to and without waiver of its above-stated objections, the Commonwealth objects to this interrogatory on the grounds that it improperly seeks information that is irrelevant to the issues of this litigation, that it is overly broad, oppressive, unduly burdensome and expensive to respond to, that it is not reasonably calculated to lead to the discovery of admissible evidence, that it is propounded with the intention to harass and annoy, that it improperly seeks information 8 GEN 461423
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protected by privacy statutes, that it ignores this Court's 12(b)(6) rulings which established that the Commonwealth has standing to pursue recovery of its aggregate injury in its own name, and that it ignores the fact that the Commonwealth intends to establish its claim for recovery on an aggregate basis. Further, and once again subj ect to and without waiver of its above-stated objections, the Commonwealth states that, to the extent this interrogatory seeks the present disclosure of opinions, reports and reliance materials regarding the Commonwealth's damage calculations and damage calculation methodologies prepared by experts who are expected to be called to testify at trial, as well as the identity and background of these experts, such information is protected by the atiomey-client privilege and work product doctrine and its disclosure is premature. Certain of this information will be provided at the appropriate time in the proceedings and part of the information has already been provided in the Commonwealth's voluntary prediscIosure of documents. INTERROGATORY NO. 7: For each State program identify the total annual cost of health care and other services during each year of the damages period to treat each tobacco related disease, identifying in your answer how you calculated those annual costs and the documents and information sources upon which you relied in making these calculations. OBJECTIONS AND RESPONSE TO INTERROGATORY NO. 7:Subject to and without waiver of its above-stated objections, the Commonwealth objects to this interrogatory on the grounds that it improperly seeks information that is irrelevant to the issues of this litigation, that it is overly broad, oppressive, unduly burdensome and expensive to respond to, that it is not reasonably calculated to lead to the discovery of admissible evidence, that it is propounded with the intention to harass and annoy, that it improperly seeks information protected by privacy statutes, that it ignores this Court's 12(b)(6) rulings which established 10 GEN 461425
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broad and unduly burdensome. It may be impossible to locate "all" items or "each" item of responsive information to these interrogatories. 4. Defendants' First Set of Interrogatories is not reasonably calculated to lead to the discovery of admissible evidence or to the determination of relevant facts in this litigation. 5. Defendants' First Set of Interrogatories improperly seeks information that falls within the scope of federal laws protecting the privacy of recipients offederal and Commonwealth aid. Disclosure of information indicating the identity and certain other information of the aid recipients is thus prohibited. In answering defendants' interrogatories that seek otherwise discoverable information, the Commonwealth will not violate these laws. 6. Defendants' First Set of Interrogatories improperly seeks information that refers and relates to the identity of regipients of federal and Commonwealth aid. Disclosure of such identifying information, whether or not proscribed by federal and Commonwealth privacy laws, is not relevant to the claims or defenses properly before the Court. 7. Defendants' First Set of Interrogatories violates the limitation on interrogatories contained in the Federal Rules of Civil Procedure. 8. Defendants' First Set of Interrogatories improperly seeks information protected from discovery by the Federal Rules of Evidence, federal privacy laws and privileges. Withheld infonnation based upon an obj ection of attorney-client privilege or work product protection will be logged in accordance with Puerto Rico law and any orders of the Court. 9. Defendants' First Set of Interrogatories does not state with the required 2 V iV GEN 461417
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• Commonwealth are provided through the Administracion de Facilidades y Servicios de Salud (Health Facilities and Services Administration, AFASS) and Administracion de Seguros de Salud (Health Administration Association, ASES) . The administrator is the Secretary of the Department of Health, currently Dr. Carmen Feliciano de Melecio.. INTERROGATORY NO. 3: Identify, by name and international classification of diseases code number, all injuries, diseases, or other medical conditions that plaintiff asserts to be caused by Tobacco Consumption (hereinafter "Disease AIlegedly Caused by Tobacco Consumption"). OBJECTIONS AND RESPONSE TO INTERROGATORY NO. 3:Subject to and without waiver of its above-stated objections, the State states that, to the extent this interrogatory seeks the present disclosure of opinions, reports and reliance materials regarding the Commonwealth's damage calculations and damage calculation methodologies prepared by experts who are expected to be called to testify at trial, as well as the identity and . background of these experts, such information is protected by the attorney-client privilege and work product doctrine and its disclosure premature. Certain of this information will be provided at the appropriate time in the pretrial proceedings. The disease codes, injuries and other medical conditions that the Commonwealth asserts to be caused by Tobacco consumption will be identified in the reports prepared by the Damages expert(s). Again, subject to and without waiving any of its objections, the Commonwealth provides the following answer. Disease names and international classification of disease code numbers can be found in the ICD-9-CM.• International Classifications of Diseases, _0 Revision and Clinical Modification, S`h Edition; 1998 Office Edition, Volumes I & 2. INTERROGATORY NO. 4: To the extent that the Commonwealth seeks reimbursement 6 GEN 461421
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0 14. Defendants' First Set of Interrogatories is unreasonably cumulative and duplicative. 15. The Set of Definitions and General Procedures to Defendants' First Set of Interrogatories improperly attempts to impose obligations on the Commonwealth other than those imposed or authorized by federal or Puerto Rico law. 16. The Set of Definitions and General Procedures to Defendants' FirsYSet of Interrogatories improperly attempts to alter the plain meaning of certain words. 17. Defendants' First Set of Interrogatories improperly seeks information that may be used by defendants to contend that they entitled to an impermissible offset of their liability by the amount of excise or other taxes collected upon the sale of tobacco or the amount of revenues, payments and other alleged "benefits" to the Commonwealth from the ' sale of cigarettes and the treatment of cigarette-related disease. 18. Defendants' First Set ofinterrogatories improperly seeks the premature disclosure of expert opinions, reports and reliance materials, as well as the disclosure of information in violation of the Federal Rules of Civil Procedure. 19. Defendants' First Set of Interrogatories improperly seeks inforniation involving an opinion, the application of law to facts or legal opinions. 20. . Defendants' First Set of Interrogatories improperly defines "damages," "health care costs," and the "State" in manners that are overly broad, vague and ambiguous. These above-stated objections are continuing as to each Interrogatory. They are incorporated in response to each Interrogatory, whether or not specifically stated, and are not waived nor in any way limited by any interrogatory-specific objections and answer. The Commonwealth's answers are based upon information presently known to the 4 GEN 46 54 19
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protected by privacy statutes, that it ignores this Court's 12(b)(6) rulings which established that the Commonwealth has standing to pursue recovery of its aggregate injury in its own name, and that it ignores the fact that the Commonwealth intends to establish its claim for recovery on an aggregate basis. Further, and once again subj ect to and without waiver of its above-stated objections, the Commonwealth states that, to the extent this interrogatory seeks the present disclosure of opinions, reports and reliance materials regarding the Commonwealth's damage calculations and damage calculation methodologies prepared by experts who are expected to be called to testify at trial, as well as the identity and background of these experts, such information is protected by the attorney-client privilege and work product doctrine and its disclosure is premature. Certain of this information will be provided at the appropriate time in the proceedings and some the information has already been provided in the Commonwealth's voluntary predisclosure of documents. INTERROGATORY NO. 10: Identify each action taken by the Commonwealth to mitigate the increased health care costs the Commonwealth believes are caused by tobacco . Consumption , identify all persons with knowledge of those actions and/or who either had a substantive role in those actions or authority to influence those actions, and with respect to each person named specify his/her relevant knowledge role and authority. OBJECTIONS AND RESPONSE TO INTERROGATORY NO. 10: The Commonwealth objects to this interrogatory, as it is unduly burdensome and reasonably calculated to lead to the discovery of admissible evidence. An interrogatory that seeks to "identify all persons of knowledge of those actions," even if limited to those persons who had a "substantial role" is unduly burdensome. Again, subject to and without waiver of its objections, the Commonwealth has taken actions to mitigate the increased health care costs 13 GEN 461429
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for monies paid by the Commonwealth and or its agencies for medical assistance to medicaid and other publicly funded health care recipients who allegedly suffer, or who have allegedly suffered, from Tobacco-Related Disease, provide the following: (a) the name, address, telephone number, social security number and date of birth of each Medicaid or other publicly funded healthcare Recipient whose tobacco related medical expenses were paid for by the Commonwealth; (b) for each person identified in subparagraph (a), identify and list each Document that substantiates plaintiff s claim that the medical expenses paid by the Commonwealth are tobacco related.; (c) for each person identified in.subparagraph (a), provide the name, address and telephone number of each healthcare Provider to whom the Commonwealth and/or its agencies made payments of Medicaid or other publicly funded healthcare funds and the amount and date of any such.payments for tobacco-related expenses; (d) explain how each amount set forth in subparagraphs (a) and (c) was computed. OBJECTIONS AND RESPONSE TO INTERROGATORY NO. 4:Subject to and without waiver of its above-stated objections, the Commonwealth objects to this interrogatory on the grounds that it improperly seeks information that is irrelevant to the issues of this litigation, that it is overly broad, oppressive, unduly burdensome and expensive to respond to, that it is not reasonably calculated to lead to the discovery of admissible evidence, that it is propounded with the intention to harass and arinoy; that it improperly seeks information protected by privacy statutes, that it ignores this Court's 12(b)(6) rulings which established that the Commonwealth has standing to pursue recovery of its aggregate injury in its own name, and that it ignores the fact that the Commonwealth intends to establish its claim for 7 GEN 461422
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® Accordingly, the Commonwealth directs defendants to the documents it has produced. The Commonwealth further objects to this interrogatory to the extent it calls for the disclosure of information protected by the attorney-client privilege, work product doctrine, state and federal privacy law, and other such legal privileges and protections. The Commonwealth also objects to this interrogatory to the extent it calls for the disclosure of information that is irrelevant to the issues of this cases and that is not reasonably calculated to lead to the discovery of admissible evidence. The Commonwealth reserves all rights to expand, modify, supplement or otherwise amend this response as is necessary and appropriate. INTERROGATORY NO. 14: State whether you intend to call any person as an expert witness at trial . If so with reference to each person state: a. the name, address, telephone number, employer and job title classification of each such person; b. the subject matter on which each expert is expected to testify; c. the substance of the facts and opinions to which each expert is expected to testify and a summary of the grounds for each opinion. OBJECTIONS AND RESPONSE TO INTERROGATORY NO. 14: Subject to and without waiver of its above-stated objections, the Commonwealth states that, to the extent this interrogatory seeks the present disclosure of opinions, reports and r.eliance materials regarding the Commonwealth's experts who are expected to be called to testify at trial, as well as the identity and background of these experts, such information is protected by the attorney-client privilege and work product doctrine and its disclosure premature. Certain of this information will be provided pursuant to Court order at the appropriate time in the pretrial proceedings. 16 GEtQ 461431
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response as is necessary and appropriate. INTERROGATORY NO. 17:For each year of the Damages Period, set forth: (a) the total amount of Commonwealth Money the Commonwealth budgeted to establish or operate its Medicaid Fraud Control Unit; and (b) the total amount of Commonwealth money the Commonwealth expended to establish or operate its Medicaid Fraud Control Unit; and (c) the total amount of FFP given to the Commonwealth to establish or operate the Commonwealth's Medicaid Fraud Control Unit. OBJECTIONS AND RESPONSE TO INTERROGATORY NO. 17: The Commonwealth obj ects to this interrogatory on the grounds that it is inapplicable to the circumstances of the Commonwealth of Puerto Rico and is unduly burdensome. Subject to and without waiver of this and its other above-stated objections, the Commonwealth responds that any answer to this interrogatory may be derived or'ascertained from documents the Commonwealth has already produced in its voluntary predisciosure. The Commonwealth further objects to this interrogatory to the extent it calls for the disclosure of information protected by the attorney- client privilege, work product doctrine, state and federal privacy law, and other such legal privileges and protections. The Commonwealth also obj ects to this interrogatory to the extent it calls for the disclosure of information that is irrelevant to the issues of this cases and that is not reasonably calculated to lead to the discovery of admissible evidence. The Commonwealth reserves all rights to expand, modify, supplement or otherwise amend this response as is necessary and appropriate. INTERROGATORY NO. 18:For each year of the Damages period, set forth the State Payment Error Rate for the Commonwealth, and any Medicaid eligibility error rates that 19 GEN 461434
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INTERROGATORY NO. 16:For each year of the Damages Period: (a) state each category of Third Party (e.g., insurance companies, state or federal programs including Medicare, Worker's Compensation, estate, tortfeasors, ect.) that the State has identified as liable for payment of claims for goods or services furnished under the Medicaid State Plan during that year with respect to which the Commonwealth made payment of such claims and then sought reimbursement, pursuant to 42 C.F.R.§ 433.138 and § 433.139; (b) set forth by each such category that total amounf of such claims in which the Commonwealth sought reimbursement; and (c) set forth by each such category the total amount of reimbursement the Commonwealth recovered. OBJECTIONS AND RESPONSE TO INTERROGATORY NO. 16: The Commonwealth objects to this interrogatory on the grounds that it is inapplicable to the circumstances of the Commonwealth of Puerto Rico and is unduly burdensome. Subject to and without waiver of this and its other above-stated objections, the Commonwealth responds that any answer to this interrogatory may be derived or ascertained from documents the Commonwealth has already produced in its voluntary predisclosure. The Commonwealth further objects to this interrogatory to the extent it calls for the disclosure of information protected by the attorney- client privilege, work product doctrine, state and federal privacy law, and other such legal privileges and protections. The Commonwealth also objects to this interrogatory to the extent it calls for the disclosure of information that is irrelevant to the issues of this cases and that is not reasonably calculated to lead to the discovery of admissible evidence. The Commonwealth reserves all rights to expand, modify, supplement or otherwise amend this 18 GEt3 461433
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Commonwealth and its counsel. The Commonwealth reserves all rights to supplement and amend its answers or objections at any time. A. . Damages INTERROGATORY NO. 1: Identify each person who participated in answering these Interrogatories. For each person identified, state the specific Interrogatory that person participated in answering. OBJECTIONS AND RESPONSE TO INTERROGATORY NO. L•Subject to and without waiver of its above-stated objections, the Commonwealth objects to this interrogatory on the ground that it improperly seeks disclosure of information that is protected by the attorney- client privilege and work product doctrine. INTERROGATORY NO. 2: Identify each Commonwealth Program for which recovery of Damages is sought in this action and, with respect to each Commonwealth Program, identify the person(s) in charge during all tinLe periods within the damages Period, and identify the statutes and ruies governing each State Program and pursuant to which Damages were incurred. OBJECTIONS AND RESPONSE TO INTERROGATORY NO. 2:To the extent that this interrogatory seeks information contained in the Commonwealth's expert damages report such information will be provided as of December 1, 1998. Subject to and without waiving any above-stated objections, the Commonwealth is seeking recovery of Damages for medical expenditures relating to the following programs: a. Medicaid and General Assistance Programs -- The statutes governing the Medicaid program include the Health Facilities and Services Administration of Puerto Rico P.L.# 26 of November 13, 1975. General medical assistance programs of the 5 GEN 461420
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® protected by privacy statutes, that it ignores this Court's 12(b)(6) rulings which established that the Commonwealth has standing to pursue recovery of its aggregate injury in its own name, and that it ignores the fact that the Commonwealth intends to establish its claim for recovery on an aggregate basis. Further, and once again subject to and without waiver of its above-stated obj ections, the Commonwealth states that, to the extent this interrogatory seeks the present disclosure of opinions, reports and reliance materials regarding the Commonwealth's damage calculations and damage calculation methodologies prepared by experts who are expected to be called to testify at trial, as well as the identity and background of these experts, such information is protected by the attorney-client privilege and work product doctrine and its disclosure is premature. Certain of this information will be provided at the appropriate time in the proceedings and some the information has already been provided in the Commonwealth's voluntary predisclosure of documents. INTERROGATORY NO.9:Do the damages you seek in this action include the portion of costs of any state programs that were paid or reimbursed by any third party, including the federal government or state Program recipients? If so for each State Program, identify all such third party payers and state the amount of the contribution or reimbursement by each third party for each year in the Damages Period. OBJECTIONS AND RESPONSE TO INTERROGATORY NO. 9:Subject to and without waiver of its above-stated objections, the Commonwealth objects to this interrogatory on the grounds that it improperly seeks information that is irrelevant to the issues of this litigation, that it is overly broad, oppressive, unduly burdensome and expensive to respond to,. that it is not reasonably calculated to lead to the discovery of admissible evidence, that it is propounded with the intention to harass and annoy, that it improperly seeks information 12 GEN 461427
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that the Commonwealth has standing to pursue recovery of its aggregate injury in its own name, and that it ignores the fact that the Conunonwealth intends to establish its claim for recovery on an aggregate basis. Further, and once again subject to and without waiver of its above-stated objections, the Commonwealth states that, to the extent this interrogatory seeks the present disclosure of opinions, reports and reliance materials regarding the Commonwealth's damage calculations and damage calculation methodologies prepared by experts who are expected to be called to testify at trial, as well as the identity and background of these experts, such information is protected by the attorney-client privilege and work product doctrine and its disclosure is premature. Certain of this information will be provided at the appropriate time in the proceedings and some the information has already been provided in the Commonwealth's voluntary predisclosure of documents. INTERROGATORY NO. 8:For each state program, identify the total annual costs of health care and other services provided by the Commonwealth during each year of the Damages period to treat each tobacco related disease that you assert would have been avoided if no one had ever consumed tobacco, identifying in your answer how you calculated those annual costs and the documents and other information sources upon which you relied in making those calculations. OBJECTIONS AND RESPONSE TO INTERROGATORY NO. 8:Subject to and without waiver of its above-stated objections, the Commonwealth objects to this interrogatory on the grounds that it improperly seeks information that is irrelevant to the issues of this litigation, that it is overly.broad, oppressive, unduly burdensome and expensive to respond to, that it is not reasonably calculated to lead to the discovery of admissible evidence, that it is propounded with the intention to harass and annoy, that it improperly seeks information . 11 GE13 461426
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0 caused by tobacco consumption as evidenced by the documents already produced in the Commonwealth's voluntary predisclosure of documents. The Commonwealth reserves the right to expand, modify, supplement or otherwise amend this response as necessary. INTERROGATORY NO.11: Do you assert that the defendants would have paid the costs of health care and other services the Commonwealth seeks to recover in this action if the Commonwealth had not paid those costs? If so, explain fully the basis for the answer, and identify all documents and other information sources relied upon to answer this interrogatory. OBJECTIONS AND RESPONSE TO INTERROGATORY NO. 11: Subject to and without waiver of its above-stated objections, the Commonwealth objects to this interrogatory as it founded on a set of hypothetical facts, requires speculation as to what defendants "would" have done, and is a contention interrogatory. As such, it is improper. INTERROGATORY NO.12: Identify all health related databases maintained by the Commonwealth including each database or data system relating to healthcare costs or administrative costs maintained by or for each of the state programs. OBJECTIONS AND RESPONSE TO INTERROGATORY NO. 12: The Commonwealth objects to this interrogatory on the ground that it is unduly burdensome. Subject to and without waiver of this and its other above-stated objections, the Commonwealth responds that the answer to this interrogatory may be derived or ascertained from documents the Commonwealth has produced in its voluntary predisclosure or will produce once obtained. In addition, the Commonwealth responds that the burden of deriving or ascertaining the answer to this interrogatory from documents the Commonwealth has already produced, is substantially the same for defendants as it is for the 14 GEN 461429
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® Commonwealth. Accordingly, the Commonwealth directs defendants to the documents. The Commonwealth further obj ects to this interrogatory to the extent it calls for the disclosure of information protected by the attorney-client privilege, work product doctrine, state and federal privacy law, and other such legal privileges and protections. The Commonwealth reserves all rights to expand, modify, supplement or otherwise amend this response as is necessary and appropriate. INTERROGATORY NO. 13:Identify all State data sets, databases, studies or reports which relate to the following: (a) Lifestyle/health risk factors, including smoking prevalence, diet, obesity, drug abuse, gambling, forearms use, cholesterol, pollution, depression, and exercise ortack of exercise; (b) Smoking prevalence of the State population or any subsets thereof, including the Medicaid population, such as the "Tobacco Use Survey"; (c) The Cancer Registry; and (d) Indigent health care. OBJECTIONS AND RESPONSE TO INTERROGATORY NO. 13: The Commonwealth objects to this interrogatory on the ground that it is unduly burdensome. Subject to and without waiver of this and its other above-stated objections, the Commonwealth responds that the answer to this interrogatory may be derived or ascertained from documents the Commonwealth has produced in its voluntary predisclosure or will produce. In addition, the Commonwealth responds that the burden of deriving or ascertaining the answer to this interrogatory from documents the Commonwealth has produced, is substantially the same for defendants as it is for the Commonwealth. 15 GEN 461430
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extent it calls for the disclosure of information that is irrelevant to the issues of this cases and that is not reasonably calculated to lead to the discovery of admissible evidence. The Commonwealth reserves all rights to expand, modify, supplement or otherwise amend this response as is necessary and appropriate. INTERROGATORY NO. 21:For each Service Category for each year of the Damages Period, describe the methods and procedures used to safeguard against unnecessary utilization of medical assistance, the total number of claims paid by Medicaid to individual Providers of that Service Category, the total number of claims that were actually reviewed in a Utilization Review, and the total value of the payments denied as a result of such Utilization Review. OBJECTIONS AND RESPONSE TO INTERROGATORY NO. 21: The Commonwealth objects to this interrogatory on the grounds that it is inapplicable to the circumstances of the Commonwealth of Puerto Rico and i's unduly burdensome. Subject to and without waiver of this and its other above-stated objections, the Commonwealth responds that any answer to this interrogatory may be derived or ascertained from documents the Commonwealth has already produced in its voluntary predisclosure. The Commonwealth further objects to this interrogatory to the extent it calls for the disclosure of information protected by the attorney- client privilege, work product doctrine, state and federal privacy law, and other such legal privileges and protections. The Commonwealth also objects to this interrogatory to the extent it calls for the disclosure of information that is irrelevant to the issues of this cases and that is not reasonably calculated to lead to the discovery of admissible evidence. The Commonwealth reserves all rights to expand, modify, supplement or otherwise amend this response as is necessary and appropriate. 23 GEN 461438
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"net"DSH funds meaning the amount of DSH payment received by the Provider after subtraction from the total amount of DSH funds received by that Provider, the amount of donations, taxes, contributions, assessments, or intergovernmental transfers paid or transferred by the Provider to the Commonwealth for use by the Commonwealth to fmance its portion of DSH program; (e) how each provider that participated in the DSH program utilized the DSH payments it received; (f) treatment; and (g) the amount of DSH payments actually utilized to pay for medical the amount of DSH payments actually utilized to pay for medical treatment of Medicaid Recipients. OBJECTIONS AND RESPONSE TO INTERROGATORY NO. 24: The Commonwealth objects to this interrogatory on the grounds that it is inapplicable to the circumstances of the Commonwealth of Puerto Rico and is unduly burdensome. Subject to and without waiver of this and its other above-stated objections, the Commonwealth responds that any answer to this interrogatory may be derived or ascertained from documents the Commonwealth has already produced in its voluntary predisclosure. The Commonwealth fiuther objects to this interrogatory to the extent it calls for the disclosure of information protected by the attorney-client privilege, work product doctrine, state and federal privacy law, and other such legal privileges and protections. The Commonwealth also objects to this interrogatory to the extent it calls for the disclosure of information that is irrelevant to the issues of this cases and that is not reasonably calculated to lead to the discovery of admissible evidence. The Commonwealth reserves all rights to expand, 26 GBI3 461441
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Nov-10-88 17:56 From-HONTON * IpF9S 8235 0 T-042 P.13/20 F-640 pne7ega- bw=d, they have Iaade VA1y swoq7tps ts ==ptWng to extend sluh a1leged `~uanftc° to vam,aEly waydm ft I»5 xqkw.*9L Net omly is dw arnUWy to ft proper xgs®ltrdon ofpri.+ilege ciatus iu gemaaL which slaamld be nMwPy `'' 6qt ia me~elyaza~nsnfdolayingqhsss aadtt~wazdagdleCammnonwesltlz'sabi8itdasYonbtain finfoznistioa aec®seary to dae prpsecqfion of its mse. The de sbould Amt 60 w e~eiasus$ flagaat T>;!E PRIOR AEVIEW eQ TED NY 1D&FMAMS YS UMcES$AaY,1M CQ11iS4dbmG AM Sf1AE The demdam Jaave mALgwW dhat a pria tc,wiew of the doemmscis is the ~3P~I7aSFER3pII~SW~~~~11qT~D1E91;dC(~S$B~3•urt...aa~, Eq7wo7m wi,vstoaa of tUa mibp%3CAdS, SCCYGGd 1iixG L8tb= & w Th4y cadmm TbH$ S'tbC1;1. IL'V7fAR wRA take appaaxiurarelysevea,=ntisa, y,i.altlam,&SYatbm pamosow 2,6W baxesoi 6-5 uu7lioa pages wbick ae subjoct so ft 7@ ewv9eioa a raam af attaaaeys wobu,-w day im day out for wm saek sud avesyr PW aa eseh wasi evesyF:aa, au=pein$ eo deadd wbich aso subject to the "5ointde~se paivilege.n Thls acenaaio S~as yo WJMQttrledgo *e WM of Phe domuom ia queslama or gbe so ' ofbnthLadra~~c9V~a&andtloe C&~rly,tbc~aea " subset of the dacameass iss tbt gmvg ®€Z,600 baxes #o w]oids a UZ!' olaio ofyaivilep or ww#& pradact ~aa~not boasaade ly, Ea46am &Wadcias, a law fh= tbtat bas zapresamed a widn vaaay a€hiqh pNffEe alis;us ss®er the y=s,l9ag so= t,yEse of fums oz id~de+ai~sy~4~a~Islacewlric3t}ttaeides- ~aad~g~nafiatiaeoo~inadiat~esefiIas. WSee b7rrartd .5~ v Massadwam Inaz Tedc,129 F3e3 681, 6M (19r Css 1997) (Oft ez) F"uher x 7JairedS7eazae, 425 dl.S. 391, e103 (E976)) oa ~ EI Co to ~ (A SY/BS 59S9d BaBS 6T,i LpG=uS aP YSQR°f1®4d 2W;LB Q5-AGdi-CiB
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0 protected by privacy statutes, that it ignores this Court's 12(b)(6) rulings which established that the Commonwealth has standing to pursue recovery of its aggregate injury in its own name, and that it ignores the fact that the Commonwealth intends to establish its claim for recovery on an aggregate basis. Further, and once again subject to and without waiver of its above-stated objections, the Commonwealth states that, to the extent this interrogatory seeks the present disclosure of opinions, reports and reliance materials regarding the Commonwealth's damage calculations and damage calculation methodologies prepared by experts who are expected to be called to testify at trial, as well as the identity and background of these experts, such information is protected by the attorney-cfient privilege and work product doctrine and its disclosure is premature. Certain of this information will be provided at the appropriate time in the proceedings and part of this information has already been provided in the Commonwealth's voluntary predisclosure of documents. INTERROGATORY NO. 6: For each State program identify the total annual cost of health care and other services during each year of the damages period identifying in your answer how you calculated those annual costs and the documents and information sources upon which you relied in making these calculations.. OBJECTIONS AND RESPONSE TO INTERROGATORY NO. 6:Subject to and without waiver of its above-stated objections, the Commonwealth objects to this interrogatory on the grounds that it improperly seeks information that is irrelevant to the issues of this litigation, that it is overly broad, oppressive, unduly burdensome and expensive to respond to, that it is not reasonably calculated to lead to the discovery of admissible evidence, that it is propounded with the intention to harass and annoy, that it improperly seeks information 9 GEN 461424
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® number of non-secretarial staff who spent all or substantial amount of their work time on issues concerning physical abuse of patients. OBJECTIONS AND RESPONSE TO INTERROGATORY NO. 19: The Commonwealth objects to this interrogatory on the grounds that it is inapplicable to the circumstances of the Commonwealth of Puerto Rico and is unduly burdensome. Subj ect to and without waiver of this and its other above-stated objections, the Commonwealth responds that any answer to this interrogatory may be derived or ascertained from documents the Commonwealth has already produced in its voluntary predisclosure. The Commonwealth further objects to this interrogatory to the extent it calls for the disclosure of inforntation protected by the attorney- client privilege, work product doctrine, state and federal privacy law, and other such legal privileges and protections. The Commonwealth also objects to this interrogatory to the extent it calls for the disclosure of information that is irrelevant to the issues of this cases and that is not reasonably calculated'to lead to the discovery of admissible evidence. The Commonwealth reserves all rights to expand, modify, supplement or otherwise amend this response as is necessary and appropriate. INTERROGATORY NO. 20:For each year of the Damages Period, set forth: (a) the total amount of payments made to the Providers that were identified as being attributable to Fraud; (b) the total amount of payments made to Providers that were identified (whether during that year or previously) as being attributable to Fraud that were recovered by the State Medicaid Program during that year; 01% (c) the total amount of payments made to Providers that were identified v,t 4_~ 00 as being attributable to Abuse; and M• VD 21 GEN 461436
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INTERROGATORY NO.15: For each year of the Damages period, state: (a) each category of Third party (e.g., insurance companies, state or federal programs including Medicare, worker's Compensation, etc.) that the Commonwealth identified as liable for payment of claims for goods or services furnished under the Medicaid State Plan during that year, as contemplated by 42 C.F.R.§ 433.138; (b) with respect to each such category, whether the Commonwealth actually denied payment of claims, in whole or in part, due to the probable existence of Third party liability, in accordance with 42 C.F.R. § 433.139; and (c) set forth by each such category the total amount of savings to the Medicaid Program as a result of Third Party liability cost avoidance. OBJECTIONS AND RESPONSE TO INTERROGATORY NO. 15: The Commonwealth objects to this interrogatory on the grounds that it is inapplicable to the circumstances of the Commonwealth•of Puerto Rico and is unduly burdensome. Subject to and without waiver of this and its other above-stated objections, the Commonwealth responds that any answer to this interrogatory may be derived or ascertained from documents the Commonwealth has already produced in its voluntary predisclosure. The Commonwealth further objects to this interrogatory to the extent it calls for the disclosure of information protected by the attomey-client privilege, work product doctrine, state and federal privacy law, and other such legal privileges and protections. The Commonwealth also objects to this interrogatory to the extent it calls for the disclosure of information that is irrelevant to the issues of this cases and that is not reasonably calculated to lead to the discovery of admissible evidence. The Commonwealth reserves all rights to expand, modify, supplement or otherwise amend this response as is necessary and appropriate. 17 GEN 461432
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INTERROGATORY NO. 22:For each Service Category that is subject to Preauthorization Review, state, for each year of the Damages Period, the total number of claims paid by Medicaid to individual Providers of that Provider type, the total number of requests denied as a result of such Preauthorization Review, and the total value of dollars saved as a result of such Preauthorization Review. OBJECTIONS AND RESPONSE TO INTERROGATORY NO. 22: The Commonwealth objects to this interrogatory on the grounds that it is inapplicable to the circumstances of the Commonwealth of Puerto Rico and is unduly burdensome. Subject to and without waiver of this and its other above-stated objections, the Commonwealth responds that any answer to this interrogatory may be derived or ascertained from documents the Commonwealth has already produced in its voluntary predisclosure. The Commonwealth further objects to this interrogatory to the extent it calls for the disclosure of information protected by the attorney- client privilege, work product doctrine, state and federal privacy law, and other such legal privileges and protections. The Commonwealth also objects to this interrogatory to the extent it calls for the disclosure of information that is irrelevant to the issues of this cases and that is not reasonably calculated to lead to the discovery of admissible evidence. The Commonwealth reserves all rights to expand, modify, supplement or otherwise amend this response as is necessary and appropriate. INTERROGATORY NO. 23: With respect to audits of hospitals and nursing facilities participating in the Medicaid program, for each year of the Damages Period state: who performed the audits; the percentage of hospital and nursing homes audited; the type (field or desk) and frequency of the audits; and 24 GEN 461439
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(d) the total amount of payments made to Providers that were identified (whether during that year or previously) as being attributable to Abuse that were recovered by the State Medicaid Program during that year. In the event you are unable to distinguish between State Medicaid Program expenditures attributable to Fraud and those attributable to Abuse, set forth for each year of the Damages Period: (e) the total amount of payments made to Providers that were identified as being attributable to Fraud or Abuse; (f) the total amount of payments made to Providers that were identified (whether. during that year or previously) as being attributable to Fraud or Abuse that were recovered by, the State Medicaid Program during that year. With respect to all sub-parts of this Interrogatory, identify the Documents or other material that contain relevant information the State used, or relied on, to prepare its response to this Interrogatory. OBJECTIONS AND RESPONSE TO INTERROGATORY NO, 20: The Commonwealth objects to this interrogatory on the grounds that it is inapplicable to the circumstances of the Commonwealth of Puerto Rico and is unduly burdensome. Subject to and without waiver of this and its other above-stated objections, the Commonwealth responds that any answer to this interrogatory may be derived or ascertained from documents the Commonwealth has already produced in its voluntary predisclosure. The Commonwealth further objects to this interrogatory to the extent it calls for the disclosure of information protected by the attorney- client privilege, work product doctrine, state and federal privacy law, and other such legal privileges and protections. The Commonwealth also objects to this interrogatory to the 22 GEN 461437
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a summary of the results of such audits. OBJECTIONS AND RESPONSE TO INTERROGATORY NO. 23: The Commonwealth objects to this interrogatory on the grounds that it is inapplicable to the circumstances of the Commonwealth of Puerto Rico and is unduly burdensome. Subject to and without waiver of this and its other above-stated objections, the Commonwealth responds that any answer to this interrogatory may be derived or ascertained from documents the Commonwealth has already produced in its voluntary predisclosure. The Commonwealth further objects to this interrogatory to the extent it calls for the disclosure of information protected by the attorney-client privilege, work product doctrine, state and federal privacy law, and other such legal privileges and protections. The Commonwealth also objects to this interrogatory to the extent it calls for the disclosure of information that is irrelevant to the issues of this cases and that is not reasonably calculated to lead to the discovery of admissible evidence. The Commonwealth reserves all rights to expand, modify, supplement or otherwise amend this response as is necessary and appropriate. INTERROGATORY NO. 24: With respect to the Commonwealth's disproportionate share hospital payment ("DSH") program, for each year of the Damages Period, state or identify: (a) each Provider that received a DSH payment and the amount of donations, special taxes, contributions, intergovernmental transfers, and assessments received from each such Provider or governmental entity that owns such Provider, by the Commonwealth and used to finance the Commonwealth's share of the Medicaid program; the amount of Federal Financial Participation in the DSH program; the amount of DSH funds distributed to each Provider; the amount of "net" DSH funds received by each Provider, with 25 GEN 461440
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have been calculated with respect to Medicaid claims paid on behalf of Recipients who receive Supplemental Security Income Benefits. OB7ECTIONS AND RESPONSE TO INTERROGATORY NO. 18: The Commonwealth objects to this interrogatory on the grounds that it is inapplicable to the circumstances of the Commonwealth of Puerto Rico and is unduly burdensome. Subject to and without waiver of this and its other above-stated objections, the Commonwealth responds that any answer to this interrogatory may be derived or ascertained from documents the Commonwealth has already produced in its voluntary predisclosure. The Commonwealth further objects to this interrogatory to the extent it calls for the disclosure of information protected by the attorney- client privilege, work product doctrine, state and federal privacy law, and other such legal privileges and protections. The Commonwealth also objects to this interrogatory to the extent it calls for the disclosure of information that is irrelevant to the issues of this cases and that is not reasonably calculated to lead to the discovery of admissible evidence. The Commonwealth reserves all rights to expand, modify, supplement or otherwise amend this response as is necessary and appropriate. INTERROGATORY NO. 19:For each year of the Damages period, provide names of all Commonwealth executive, administrative, legislative or other authorities, boards, commissions, councils, task forces, departments, agencies, divisions, or sub-units with respect to Fraud and Abuse, identify each supervisor of each such authority, commission, board, council, task force, department, agency, division or sub-unit, and state separately the number of secretarial staff within each such authority, commission, board, council, task- force, department, agency, division or sub-unit. With respect to the Medicaid Fraud Control Unit, the answer should additionally identify, for each year of the Damages Period, the 20 GEN 461435
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0 (a) describe, in detail, such plan or program. Such description should include whether such plan or program was voluntary or mandatory, whether it was capitated or a primary care case management program, the class(es) of Medicaid population covered, and, to the extent the plan is a capitated program, the method for establishing the capitated rates that were established. (b) for each year and for each such plan or program, state the number of enrolled recipients, the percentage of the Medicaid population enrolled, the Medicaid expenditure savings achieved by the Commonwealth as a result of each program, and the methodology by which such savings were calculated. OBJECTIONS AND RESPONSE TO INTERROGATORY NO. 28: The Commonwealth objects to this interrogatory on the grounds that it is inapplicable to the circumstances of the Commonwealth of Puerto Rico and is unduly burdensome. Subject to and without waiver of this and its other above-stated objections, the Commonwealth responds that any answer to this interrogatory may be derived or ascertained from documents the Commonwealth has already produced in its voluntary predisclosure. The Commonwealth fiuther objects to this interrogatory to the extent it calls for the disclosure of information protected by the attorney- client privilege, work product doctrine, state and federal privacy law, and other such legal privileges and protections. The Commonwealth also objects to this interrogatory to the extent it calls for the disclosure of information that is irrelevant to the issues of this cases and that is not reasonably calculated to lead to the discovery of admissible evidence. The Commonwealth reserves all rights to expand, modify, supplement or otherwise amend this response as is necessary and appropriate. INTERROGATORY NO. 29:For each year during the Damages Period, separately state the 30 GEN 461445
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0 OBJECTIONS AND RESPONSE TO INTERROGATORY NO 31 • To the extent this interrogatory seeks the present disclosure of opinions, reports and reliance materials regarding the Commonwealth's damage calculations and damage calculation methodologies prepared by experts who are expected to be called to testify at trial, as well as the identity and background of these experts, the Commonwealth objects that such information is protected by the attorney-client privilege and work product doctrine and its disclosure premature. Certain of this information has been or viill be provided at the appropriate time in the pretrial proceedings. C. Other Commonwealth Programs INTERROGATORY NO. 32:To the extent that the Commonwealth seeks Damages relating to "uncompensated health care" or "charity care": (a) describe how the Commonwealth has calculated the amount of Damages included in its claims. This description should include whether the claim is base on hospital costs or charges, and a description of all components, factors, and adjustments included in such calculations; (b) state whether any hospitals included with such claim have received any Hill Burton or other grants obligating them to perform uncompensated care and state, for each year of the Damages Period, the amount of uncompensated care performed in fulfillment of such obligations. OBJECTIONS AND RESPONSE TO INTERROGATORY NO. 32: As the terms 00 "uncompensated health care" or "charity care" are vague, ambiguous and subject to a variety 01\ L,IJ --- of interpretations, and further, as no defmition of these terms was provided in the Common Set of Definitions and Instructions, the Commonwealth, subject to and without waiver of its oa ~ 33 fi$N 461448
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0 above-stated objections, cannot properly answer this interrogatory. Giving these terms an interpretation understandable to the Commonwealth, however, the Commonwealth answers that it does not presently intend to seek damages, as that term is understood in the traditional sense, for uncompensated health care or charity care. INTERROGATORY NO. 33: To the extent that the Commomvealth seeks Damages relating to any Commonwealth employee health insurance plan, identify each such plan and for each plan, identify (1) the name of the plan; (2) the time period for which you seek to recover Damages;(3) the amount of Damages sought; (4) the methods by which the amount of damages was calculated; (5) all source documents relied upon in performing this calculation; (6) the person(s) involved in this calculation; (7) the group of employees covered by the plan during the Damages period; (8) the number of plan participants each year during the damages period; and (9) the health care claims costs paid out by each plan on behalf of participants for each year ir1 the Damages Period. OBJECTIONS AND RESPONSE TO INTERROGATORY NO. 33: The Commonwealth objects to this interrogatory on the grounds that it is inapplicable to the circumstances of the Commonwealth of Puerto Rico and is unduly burdensome. Subject to and without waiver of this and its other above-stated objections, the Commonwealth responds that any answer to this interrogatory may be derived or ascertained from documents the Commonwealth has already produced in its voluntary predisclosure. The Commonwealth farther objects to this interrogatory to the extent it calls for the disclosure of information protected by the attorney-client privilege, work product doctrine, state and federal privacy law, and other such legal privileges and protections. The Commonwealth also objects to this interrogatory to the extent it calls for the disclosure of information that is 34 GEN 461449
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0 need of Nursing Facility care to whom home or community based care was available; (c) set forth the per capita and total expenditures for the Medicaid population in need of Nursing Facility Services or care that received home or community based care; (d) set forth per capita and total expenditures for the aged and disabled Medicaid population that received Nursing Facility Services; and (e) identify the savings achieved by the Commonwealth as a result of the implementation of such plan or program and describe how such savings were calculated. OBJECTIONS AND RESPONSE TO INTERROGATORY NO. 27: The Commonwealth objects to this interrogatory on the grounds that it is inapplicable to the circumstances of the Commonwealth of Puerto Rico and is unduly burdensome. Subject to and without waiver of this and its other above-stated objections, the Commonwealth responds that any answer to this interrogatory may be derived orascertained from documents the Commonwealth has already produced in its voluntary predisclosure. The Commonwealth farther objects to this interrogatory to the extent it calls for the disclosure of information protected by the attorney- client privilege, work product doctrine, state and federal privacy law, and other such legal privileges and protections. The Commonwealth also objects to this interrogatory to the extent it calls for the disclosure of information that is irrelevant to the issues of this cases and that is not reasonably calculated to lead to the discovery of admissible evidence. The Commonwealth reserves all rights to expand, modify, supplement or otherwise amend this response as is necessary and appropriate. INTERROGATORY NO. 28:For each managed care plan or program included within the State's Medicaid Program: 29 GEN 461444
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Nov-10-98 17:55 From-HllNTON ~ IAMS 8235 ~ T=042 P.10/20 F-840 Nardae~defacdanes'claim~muclaofuaerese~rchispublis 290. juscify t}ueis alauu of guiwile$e aver otit,at rescarcb. As Judge FErrp'arsick .fows4, ®aanoe publialy use amaimb wbiob suFpasts 3hear ®coaosa'aci~aeats,bueclaisapsirri7egef9r~bwhich~syauot Osdcraf May 9, p. 28 (dft laugbEn x A.Fl. Robias, Mtus. 739sa. Ct. No.'Y96-868 (MassjA21,1984)- 251. Ispe8ceUy flad itaat hsve asaite3 alaims•of iniv9lege aver ° gcuerated by wtsuc3 aWus in aaenssfic, ve o~p~lieYelsauns eap~cises,btuaot8a~le$alcaPaccity- Thn 9s=pri®ik8ed- seeaxaw,170F.$.P.acas4(p.KmL t997). 285. l]Gfendams also uwyuoa juseifytheircLvrns of~7ogeover ~Uiic aasea~dt =4 ' ' by argu~ rbas it ~ ats4iored by M-boease se=iisa aeuag as The Predicat of tbis c3e¢a, thst in--house sei=Uats ®t emp]®yas mv nomehow eqsats or eaaSalmm £ar PAe Pob:poW of 3io~ lsea ° =rey caurts end a kadrag .Sm Ysgiaela E°1®c Fmx Co. xSae ' , 68 F.BM. 397.405 (F-.D.Va.1975)("E,4i*aor3t ad sLe zeparrs madeby at_house aq= wae act abe wosic ptadw of lswyees."), Uhioac Cewbdde Canp. x Dowrs aamied Co*., 619 F° SApp. 1036, 1051 4De Aol. 3985x"[FJamel aeritati= of serAnicat dsta aatd xrseaz>aa byC=bW'S iSAwiwaYkplmdltGLemVftdmmwu we$e P>opmrd by or to Coide's an-bause cawaseL .°'•'x 8 Vvsagbt, Mf11W 8c16anvs.8erleral Pcaztiee anaa'scce*ae 12033, at 466 (24 ed.199q~Tbese"is alegiGmaw mw=tha[apaatyawtcyin i=wmIx88ts e3woyxs who -W aqoa os viewas ('ya or of t8w eveax giviag sise ao it cas~o of action, aD= PMM &scovgry by ftwa" =pss ae>~ far wadc oa d,e ra~e'~. rlUs, Y rqiws 6sn swawae >leswch prepared by ' amplayaw = paoraW by piiviW- But for ' d° ' of amPlayees as'°ZPU,° 6$- Wad bsvo bmdiscevorable by P Pwmw d=vm of seiMffc ° a an qpvpdm inqaky in t6es case erd sbetxW =t be defmd isy ' mempu to d901-on mmbca of rhe,ir cciend& saaff as ' to tbe logai dqm==L 2.86. DdWAMS agae tl0 =abM pVuod by wlxzpaay ==dsss of pwb9isheal scae0ft ]itaramze me piiv'slaed. IAAd, bawem, rbac susls aaalyses - evcm if pvpmva by a scierdht auwivz tpe lcgai dRmtm= ->9ae mo4 pti?viPgod. MiM abo ~tekapwlc4geof63e as to tbe ®af~Y of ~adtkusaseaa ursofd9scovecybpplaisui~s. See 8 6s.1s 89sea 0069 yzd a®6•q: 29r vaG'd'siaasa aR•cL .95-[i®N-S
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® modify, supplement or otherwise amend this response as is necessary and appropriate. INTERROGATORY NO. 25:For each year during the period from January 1, 1998, to the end of the Damages period, identify any projections or estimates by any Commonwealth entity for the rates of growth in gross Medicaid expenditures for each Service Category, in per capita Medicaid expenditures. OBJECTIONS AND RESPONSE TO INTERROGATORY NO. 25: The Commonwealth objects to this interrogatory on the grounds that it is inapplicable to the circumstances of the Commonwealth of Puerto Rico and is unduly burdensome. Subj ect to and without waiver of this and its other above-stated objections, the Commonwealth responds that any answer to this interrogatory may be derived or ascertained from documents the Commonwealth has already produced in its voluntary predisclosure. The Commonwealth further objects to this interrogatory to the extent it calls for the disclosure of information protected by the attorney- client privilege, work product doctrine, state and federal privacy law, and other such legal privileges and protections. The Commonwealth also objects to this interrogatory to the extent it calls for the disclosure of information that is irrelevant to the issues of this cases and that is not reasonably calculated to lead to the discovery of admissible evidence. The Commonwealth reserves all rights to expand, modify, supplement or otherwise amend this response as is necessary and appropriate. INTERROGATORY NO. 26: For each year of the Damages Period, describe the methodology utilized by the Commonwealth to reimburse Medicaid Providers for Inpatient Hospital Services, Outpatient Hospital Services, Physicians; Services, Pharmacy Services and Nursing Facility Services. The description of each methodology should include whether such methodology was retrospective or prospective, and each components or factor included 27 GEN 461442
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responds that any answer to this interrogatory may be derived or ascertained from documents the Commonwealth has already produced in its voluntary predisclosure. The Commonwealth further objects to this interrogatory to the extent it calls for the disclosure of information protected by the attorney-client privilege, work product doctrine, state and federal privacy law, and other such legal privileges and protections. The Commonwealth also objects to this interrogatory to the extent it calls for the disclosure of information that is irrelevant to the issues of this cases and that is not reasonably calculated to lead to the discovery of admissible evidence. The Commonwealth reserves all rights to expand, modify, supplement or otherwise amend this response as is necessary and appropriate. INTERROGATORY NO.31: State, for each damage approach (e.g., SAMMEC, Mortality Ratio) employed by the Commonwealth, whether such damages approach, as applied with respect to years within the Damages period for which HCFA-64 reports are not available, accounts for, or makes any adjustments or allocations on account of, (i) coinsurance and deductibles, (ii) other health plan premium payments, (iii) Third party liability collections, (iv) prior period overpayments/underpayments (whether on account of Fraud or Abuse or otherwise) and/or (viii) drug rebate offsets. If a damages approach does so, set forth in specific detail the methodology by which, as applied with respect to years within the damages period for which HCFA-64 reports aie not available, the approach accounts for, or makes adjustments or allocations on account of, (i)coinsurance and deductibles, (ii) other health plan payments, (iii) Third Party liability collections, (iv) probate collections, (v) other collections, (vi) Fraud and Abuse collections, (vii) prior period overpayments/underpayments (whether on account of Fraud or Abuse or otherwise) and/or (viii) drug rebate offsets. 32 GEN 461447
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! in the methodology, including the identification, description, and quantification of all base rates, schedules, adjustments, limits, or restrictions on the services or reimbursement levels, inflation factors, cost components, and peer groups considered in such calculations. OBJECTIONS AND RESPONSE TO INTERROGATORY N0.26: The Commonwealth objects to this interrogatory on the grounds that it is inapplicable to the circumstances of the Commonwealth of Puerto Rico and is unduly burdensome. Subject to and without waiver of this and its other above-stated objections, the Commonwealth responds that any answer to this interrogatory may be derived or ascertained from documents the Commonwealth has already produced in its voluntary predisclosure. The Co,-nmonwealth further objects to this interrogatory to the extent it calls for the disclosure of information protected by the attorney- client privilege, work product doctrine, state and federal privacy law, and other such legal . t privileges and protections. The Commonwealth also objects to this interrogatory to the extent it calls for the disclosure of information that is irrelevant to the issues of this cases and that is not reasonably calculated to lead to the discovery of admissible evidence.. The Commonwealth reserves all rights to expand, modify, supplement or otherwise amend this response as is necessary and appropriate. INTEROGATORY NO. 27: With respect to the Commonwealth's waiver program(s) for home and community-based alternatives to Nursing Facility Services or care for the aged and disabled Medicaid population, describe each such plan or program, and for each year of such plan or program: (a) identify the amount and percentage of the Medicaid population in need of Nursing Facility Services or care that received such home or community based care; (b) identify the amount and percentage of the Medicaid population in 28 GE13 461443
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® Commonwealth further objects to this interrogatory to the extent it calls for the disclosure of information protected by the attorney-client privilege, work product doctrine, state and federal privacy law, and other such legal privileges and protections. The Commonwealth also objects to this interrogatory to the extent it calls for the disclosure of information that is irrelevant to the issues of this cases and that is not reasonably calculated to lead to the discovery of admissible evidence. The Commonwealth reserves all rights to expand, modify, supplement or otherwise amend this response as is necessary and appropriate. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of The Commonwealth of Puerto Rico's Answers to Defendants' First Set of Interrogatories has been sent by U.S. Mail to: AMERICAN BRANDS, INC. [FORTUNE BRANDS, INC.] BRITISH AMERICAN TOBACCO COMPANY LTD RJR NABISCO, INC. PHILIP MORRIS INCORPORATED (PHILIP MORRIS U.S.A.) PHILIP MORRIS COMPANIES, INC. and R.J. REYNOLDS TOBACCO COMPANY Salvador Antonetti Heriberto J. Burgos Perez FIDDLER GONZALEZ & RODRIGUEZ P.O. Box 363507 San Juan, PR 00936-3507 Tel: (787) 753-3113 Fax: (787) 759-3109 RJR NABISCO, INC. Sam Mills Daniel F. Kolb Vincent T. Chang DAVIS POLK & WARDWELL 450 Lexington Avenue New York, NY 10017 36 GEN 461451
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percentage of the total Nursing Home Medicaid expenditures applicable to food, housing, administrative services, nursing, return on capital/profit, and capital cost allowance. OBJECTIONS AND RESPONSE TO INTERROGATORY NO. 29: The Commonwealth objects to this interrogatory on the grounds that it is inapplicable to the circumstances of the Commonwealth of Puerto Rico and is unduly burdensome. Subject to and without waiver of this and its other above-stated objections, the Commonwealth responds that any answer to this interrogatory may be derived or ascertained from documents the Commonwealth has already produced in its voluntary predisclosure. The Commonwealth further objects to this interrogatory to the extent it calls for the disclosure of information protected by the attorney- client privilege, work product doctrine, state and federal privacy law, and other such legal privileges and protections. The Commonwealth also objects to this interrogatory to the extent it calls for the disclosure of information that is irrelevant to the issues of this cases and that is not reasonably calculate&to lead to the discovery of admissible evidence. The Commonwealth reserves all rights to expand, modify, supplement or otherwise amend this response as is necessary and appropriate. INTERROGATORY NO. 30:For each year of the Damages Period, state the amount of Commonwealth Medicaid expenditures paid, on behalf of Commonwealth Medicaid recipients in Nursing Facilities, for each of the following Service Categories: physicians; pharmacies; radiological services; laboratory services; and durable medical equipment. OBJECTIONS AND RESPONSE TO INTERROGATORY NO. 30: The Commonwealth objects to this interrogatory on the grounds that it is inapplicable to the circumstances of the Commonwealth of Puerto Rico and is unduly burdensome. Subject to and without waiver of this and its other above-stated objections, the Commonwealth 31 GEN 461446
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irrelevant to the issues of this cases and that is not reasonably calculated to lead to the discovery of admissible evidence. The Commonwealth reserves all rights to expand, modify, supplement or otherwise amend this response as is necessary and appropriate. INTERROGATORY NO. 34:For each Commonwealth employee health insurance plan for which you seek to recover Damages, identify the following information for each year in the damages period, and explain the basis of the calculation: (1) the total Commonwealth contribution to the plan; (2) the total amount of contributions to the plans originating from non-Commonwealth source, such as the federal government, Commonwealth employees, and university or local funds; (3) the total amount of costs paid to health care providers on behalf of plan participants, specifying the amount paid from Commonwealth funds and the amount paid from non-Commonwealth sources; (4) the total amount of Commonwealth contributions expended exclusively on health insurance benefits; (5) the total amount of Commonwealth contributions expended exclusively on non-health insurance benefits, including life, dental, disability, and accidental death and dismembetment; (6) the total amount of administrative costs incurred on behalf of each plan by the plan's insurer(s), administrator(s), providers, and health maintenance organizations; and (7) each plan's fund surplus. OBJECTIONS AND RESPONSE TO INTERROGATORY NO. 34: . The Commonwealth objects to this interrogatory on the grounds that it is inapplicable to the circumstances of the Commonwealth of Puerto Rico and is unduly burdensome. Subject to and without waiver of this and its other above-stated objections, the Commonwealth responds that any answer to this interrogatory inay be derived or ascertained from documents the Commonwealth has already produced in its voluntary predisclosure. The 35 GEN 461450
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i 45
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i PHILIP MORRIS INCORPORATED (PHILIP MORRIS U.S.A.) PHILIP MORRIS COMPANIES INC. Manuel Guzman Douglas W. Davis Carlos Steffens Jack E. McClard MANUEL GUZMAI~I LAW OFFICES HUNTON & WILLIAMS P.O. Box 193850 951 East Byrd Street, East Tower San Juan, PR 00919-3850 Richmond, VA 23219 Tel: (787) 756-6440 Tel: (804) 788-8484 Fax: (787) 756-7840 Fax: (804) 788-8218 R,I. REYNOLDS TOBACCO COMPANY Robert F. McDermott, Jr. Robert Gaffey JONES, DAY, REAVIS & POGUE Michael S. Chernis Metropolitan Square JONES, DAY, REAVIS & POGUE 1450 G. Street, NW 599 Lexington Avenue Washington, D.C. 20005 New York, NY 10002 Tel: (202) 879-3939 Tel: (212) 326-3939 THE AMERICAN TOBACCO COMPANY BROWN & WILLIAMSON TOBACCO CORPORATION and BATUS HOLDINGS, INC. Peter Bellacosa KIRKLAND & ELLIS 153 E. 53rd Street ' New York, NY 10022 Tel: (212) 446-4820 BRITISH-AMERICAN TOBACCO (HOLDINGS) LTD and B.A.T. INDUSTRIES, PLC Eric A. Tulla RIVERA TULLA & FERRER 50 Quisqueya Street Hato Rey, PR 00917 Tel: (787) 753-0438 Fax: (787) 766-0409 Mark G. Cunha Andrew T. Frankel Kathleen T. Turland SIMPSON THACHER & BARTLETT 425 Lexington Avenue ' New York, NY 10017-3954 Tel: (212) 455-2000 37 GEN 461452
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0 THE TOBACCO INSTITUTE, INC. Hector Reichard de Cardona Thomas J. Code REICHARD & ESCALERA P.O. Box 364148 San Juan, PR 00936-4148 Tel: (787) 758-8888 Fax: (787) 765-4225 SHOOK, HARDY & BACON Ramon E. Bauza-Higuera Liza M. Ramirez de Arellano BAUZA & DAVILA 63 Calle Fortaleza Viejo San Juan, PR 00901 Tel: (787) 723-0025 Fax: (787) 725-0339 Brendan V. Sullivan, Jr. George Borden Mike Sundermeyer Gerson Zweifach Malachi Jones WILLIAMS & CONNOLLY 725 Twelfth Street, NW Washington, D.C. 20005-5901 CHADBOURNE & PARKE, LLP Harold D. Vicente VICENTE & CUEBAS P.O. Box 11609 San Juan, PR 00910-1609 Tel: (787) 751-8000 Fax: (787) 756-5250 COVINGTON & BURLING Jaime Sifre Rodriquez Hilda M. Surillo Pena SANCHEZ BETANCES & SIFRE, PSC 33 Boliva, Suite 500 P.O. Box 195055 San Juan, PR 00919-5055 Tel: (787) 756-7880 Michael A. Cooper William J. Snipes Holly H. Weiss Ian A. Shavitz SULLIVAN & CROMWELL 125 Broad Street New York, NY 10004 Tel: (212) 558-4000 David A. Brownlee Peter J. Kalis David R. Cohen KIRKPATRICK & LOCKHART LLP 1500 Oliver Building Pittsburgh, PA 15222 Tel: (412) 355-6500 JACOB, MEDINGER & FINNEGAN, LLP Mario J. Pabon O'NEILL & BORGES 250 Munoz Rivera Avenue, P Floor San Juan, PR 00918 Tel: (787) 764-8181 Fax: (787) 753-8944 39 GEN 461454
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0 LIGGETT & MYERS, INC., LIGGETT GROUP, INC. and THE BROOKE GROUP LIMITED Edgar Cartagena Santiago GOLDMAN ANTONETTI & CORDOVA P.O. Box 70364 San Juan, PR 00936 Tel: (787) 759-8000 Fae:(787) 767-9177 Michael M. Fay Marie V. Santacroce KASOWITZ, BENSON, TORRES & FRIEDMAN,LLP 1301 Avenue of the Americas New York, NY 10019-6022 Tel: (212) 506-1700 Fax: (212) 506-1800 LORILLARD INCORPORATED, LORILLARD TOBACCO COMPANY and LOEWS CORPORATION Francisco A. Besosa William J. Newbold AXTMAYER, ADSUAR, MUNIZ Scott Linden & GOYCO, P.S.C. THOMPSON & COBURN P.O. Box 70294 One Mercantile Center San Juan, PR 00936-8294 St. Louis, MO 63101 Tel: (787) 756-9000, Ext. 2020 Tel: (314) 552-6000 Fax: (787) 756-9010 Fax: (314) 552-7597 UNITED STATES TOBACCO COMPANY and UST, INC. Vicente Santori-Coll . Michael Belch Hato Rey Plaza, Suite 2 Doug Fleming 200 Jesus T. Pineiro Avenue SKADDEN, ARPS, SLATE, Hato Rey, PR 00918 MEAGHER & FLOM, LLP Tel: (787) 765-9170 919 Third Avenue Fax: (787) 758-6927 New York, NY 10022 THE COUNCIL FOR TOBACCO RESEARCH - U.S.A., INC. William A. Graffam Harry Zirlin JIMENEZ, GRAFFAM & LAUSELL DEBEVOISE & PLIMPTON P.O. Box 366104 875 Third Avenue San Juan, PR 00936-6104 New York, NY 10022 Tel: (787) 767-1030 Fax: (787) 751-4068 38 GEN 461433
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OCT. 30. 1998 9,45AM ® ~ N0. 2068 P, 3/29 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO PEDRO ROSSELLO, in his capacity as GOVERNOR OF ) TI'IE COMMONWEALTH OF PUERTO RICO, JOSE A. ) FUENTES AGOSTINI, in his capacity as ATTORNEY ) GENERAL OF THE COMMONWEALTH OF PUERTO ) RICO, on behalf of the COM1V1ONWEALTITI OF ) PUERTO RICO, and THE COMMONWEALTH OF ) PUERTO RICO, ) ) Plaintiffs, ) ) v. ) ) BROWN & WILLdAa'OSON TOBACCO ) CORPORATION as successor by merger to'fHE ) AMERICAN TOBACCO COMPANY, ) et al., ) ) Defendants. ) Confidential Attorney Work Pr®duct Attorney-Client Privilege Civ7No.97-1910(JAF) LORILI,ARD TOBACCO COMPANY'S RESPONSES TO PLAINTIFFS' FIRST SET OF INTERROGATORIES AND REQUESTS FOR PRODUCTION TO I.O]RiT,i.AItTi TOBAC -O OivYP n Lorillard Tobacco Company ("Lorillard"), pursuant to Rules 26,33 and 34 of the Federal Rules of Civil Procedure, responds to plaintifl's' FirsYSet of Interrogatories and Requests for Production To Lorillard Tobacco Company ("Interrogatories and Requests") as follows: 00 0-~ w 4:1 01tl7338M co ~
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007, 30. 1998 9:50AM ® 1966 48.18 1967 52.61 1968 53.47 1969 47.69 1970 45.13 1971 47.92 1972 47.96 1973 49.04 1974 48.71 1975 47.50 1976 48.30 1977 53.11 1978 54.86 1979 59.28 1980 60.20 1981 57.56 1982 54.36 1983 55.17 1984 49.95 1985 48.55 1986 47.28 1987 46.97 1988 46.06 1989 41.80 1990 40.72 1991 36,94 1992 36.54 1993 32.65 1994 36.61 1995 38.58 1996 40.40 1997 41.83 0 N0.2068 F.19/29 Confidential Attorney Work Product Attoruey-Client Privilege b. Number nf Lorillard'c ('igar~t+a~c Sold in Puertieo Lorillard objects to this portion of Interrogatory No. 2 because it seeks inforntation that is likely to be in, and more appropriately acquired from, plaintiffs' files. Subject to and without waiving these or the General Objections set forth above, Lorillard states that, to date, it has not a2o»ae.m -17 -
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OCT.30.1998 9:46AM i a ~om .x Confidential Attorney Work Product Attorney-CBieant Privilege or access to, these documents by virtue of the fact that it is represented by Ness, Motley, Loadholt, Richardson & Poole ("Ness Motley"). Ness Motley has documents produced by Lorillard in the following cases, among others: (1) ~ti1_u~ly~[HpT~\ etNo. CJ-96-1499; (2) {':astano v. The American Tobacco Comnanv, et al., Civil Action No. 94- 1-44c/w94-3000 (E.D. La.); (3) Case No. CL 95-1466; (4) ue mencan'te r: Mure n4oore. AtLOYne =oM No. 84-56 (N.J. Super.); (5) Civil Action No. 5:96-CV-0091; (6) In aVr.rtKa. Cause No. 94- 1429; (7) S tter v Philip Morria Tnq Civil Action No. 14-5-53; (8) Haines v Liggett C}roi n, nc., Civil Action No. 84-6785A (D. N.J.); and (9) 7.7a~~~r,,,cxr. o wlom Case No. C1-94-8565 (Ramsey Co. Minn.). Consequently, plaintiffs also have in their possession, or have access to, Lorillard's 4B indices of documents produced by Lorillard into the Minnesota Depository, and may identify documents responsive to these Requests and Interrogatories therefrom. C. Lorillard objects to the "DeBnitions And Instructions" section ofthese Interrogatories and Requests to the extent they attempt to impose obligations on Lorillard that exceed those imposed or authorized by the Federal Rules of Civil Procedure, and to the extent they attempt to alter the plain meaoing of the words used in these Interrogatories and Requests. D. Lorillard also objects to these dnterrogatories and Requests to the extent they purport to (i) require searches of files and production of docuinents in the possessionn of third parties; or 00 (ii) require Lorillardto produce information and materials not within Lorillard's possession, custody, C)1 vN 4- ee N0, 2068 P. 6/29 L2e.yno1dc Tobacco =SHH-1OJ}„liR1il1MQ14i R-1- Reynolda Toharr.o Co ~ cdO/p,Y+,q' 0z07338.01 - 4 -
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OCT.30.1998 9:49AM ~ NO, 2068 P. 18/29 Confidential Attorney Work Product Attorney-Client A°rivilege ANRWRR: Lorillard objects to this Interrogatory as overly broad and unduly burdensome to the extent it seeks information for an unduly long period of time, up to and including the present. Lorillard states that it does not make retail sales of its cigarettes and, therefore, responding to this Interrogatory would require searches of files and production of documents in the possession of third parties, or require Lorillard to produce information and materials not within Lorillard's possession, custody, or control. Therefore, Lorillard objects to this Tntenrogatory as the imposition of such requirements is inconsistent with the Federal Rules of Civil Procedure. a. Nu_ *mber of Lorillard's (igaraett.e$ Sold in the ilyy, ed S t s 5ubject to and without waiving these or the General Objections stated above, Lorillard states that John C. Maxwell, Jr. publishes information pertaining to total domestic cigarette sales by each manufacturer on an annual basis. The following national sales volume information was derived from such reports: Year Total Number of Lorillard Sigarettes Cold in tl±e LT_C; lbilllonsl. 1956 21.30 V 1957 31.50 1958 52.70 1959 51,80 1960 51.20 1961 51.50 1962 54.10 1963 55.70 co 1964 47.35 O1\ 1965 46.98 w ~ 020733s.01 - 16 - co
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OCT.38.1998 9:46AM ® 0 N0.2968 P.4/29 Confidential Attorney Work Product Attorney-Client Privilege GNNF.R ai . OB t7+'.CTIONC A Lorillard objects to these Interrogatories Requests for Production on the grounds that they are overly broad and unduly burdensome to the extent that they seek to impose on Lorillard the burden of engaging in a massive new and duplicative document review when a readily available and accessible source of documents and information exists. That source is the document depository in Minneapolis, Minnesota, known as the "Minnesota Depository," which was established by Court Order dated Tune 15,1995 in 9tata of innesnta nmphrey) v. Phitip Morri a_ et aL Case No. Cl- 94-8565 (Ramsey Co. Minn.). To date, Lorillard has produced approximately 1.79 million pages of documents into the Minnesota Depository. Lorillard will identify the types of documents (with corresponding Minnesota Request numbers) produced into the Minnesota Depository in certain of these responses, and in lieu of providing answers to certain of these interrogatories. Such action is appropriate because the burden of obtaining the requested information is substantially the same for plaintiffs as it is for Lorillard. - On March 28, 1998, in response to a motion filed by Lorillard; Philip Morris Incorporated; RJ. Reynolds Tobacco Company; Brown and Williamson Tobacco Cozporation; The Council for Tobacco Research-U.S.A., Inc.; and the Tobacco Institute, Inc. to make public the non- ' privileged, non-highly confidential documents that their companies produced into the Minnesota Depository (with the exception of documents containing certain personnel and third party information), the Minnesota Court entered an Order Providing Public Access to the Minnesota Document Depository. Pursuant to the terms of this Order, on or about April 13, 1998, the public omnas,oi .2.
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OCT.30.1998 9:47AM ~ N0, 2068 P. 11/29 Confadential Attorney Work Product Attoraaey-Cllent Privilege it is overly broad and seeks information that it not relevant to the subject matter of this litigation and is not reasonably calculated to lead to the discovery of admissible evidence. Lorillard fuzther objects to the remainder of this Request to the extent it seeks information that is not relevant to the subject matter of this litigation and is not reasonably calculated to lead to the discovery of admissible evidence. Lorillard also objects to this Request to the extent it seeks publicly available information. The burden of obtaining such information is substantially the same for plaintifrs' as it is for Lorillard. Lorillard fiarther objects to this Request to the extent it seeks documents, the disclosure of which would impair Lorillard's right to free speech guaranteed by the First and Fourteenth Amendments to the United States Constitution, and the 1VberrPennington doctrine. Subject to and without waiving these or the General Objections stated above, Lorillard states that it has produced into the Minnesota Depository documents that may be responsive to this Request. These documents were produced in response to Request Nos. 4, 26, 27, 35, 36, 37, and 110, among others, of plain6ffs' First Set of Requests for Production of Documents in CWMinnesota„~t al. v_ phil-p Mopia in ._yporaJ„ed,.~.t al Tn addition, Lorillard is undertaldng fnrther review of its files to find additional responsive documents, if any, and will supplement this Response in accordance with the Federal Rules of Civil Procedure. REWFST Nt7_ 4.: please produce copies of all letters, correspondence or mailings (includdng drafts and comments thereto) to any Puerto Rico elected of£acial, appointed offcial, regulator, government worker, government entity, public health worker, individual, educational institution or library sent by or on behalf of defendant from 1954 to present which refer or relate to cigarettes, tobacco or smoking. For each letter, correspondence or mailiug, please also produce all documents necessary to identify to whom it was sent, why it was sent and the date(s) on which it was sent. moMs.ol - 9 -
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OGT.30.1998 9:49AM ® N0. 2068 P, 15/29 Confideptial Attorney Work Product Attorney-Client Privilege Subject to and without waiving these or the General Objections stated above, Lorillard states that it has produced into the Minnesota Depository documents that may be responsive to this Request. Those documents were produced in response to Request Nos. 4, 37, 95, and 99, among others, of plaintiffs' First Set of Requests for Production of Documents in State o f M7nnesota- at al- v Pbthn Mo c fnCn orate In addition, Larillard is conducting fiuther review ofits files for additional responsive documents, if any, and will supplement this Response in accordance with the Federal Rules of Civil Procedure. RF. TTFST NO 7; Please produce copies of all Spanish-language documents referring or relating to nicotene. RF•tliSE= Lorillard objects to this Request as overly broad and unduly burdensome to the extent it putports to require Lorillard to produce documents from the files of third parties and seeks information for an unduly long period of time, up to and including the present. Lorillard also objects to this Request to the extent if, seeks publicly available information. The burden of obtaining such information is substantially the same for plaintiffs as it is for Lorillard. Lorillard objects to this Request as overly broad and unduly burdensome to the extent it seeks information which is not relevant to the subject matter of this litigation and is not reasonably calculated to lead to the discovery of admissible evidence, Subject to and without waiving these or the General Objections stated above, Lorillard states that it has produced into the Minnesota Depository docmnents that may be 0207339,01 - 13 -
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OCT.30• 1998 9:51AM 9 ® - N0. 2068 -P, 26/29 - Confidential Attorney Work Product Attorney-Cl@emt Privilege through 1996, the years for which this information is available. These figures include income derived from the sales of cigarettes in the United States; and for some years, sales of other tobacco products in the United States, sales of tobacco products outside of the United States, and sales of non-tobacco products. lea[ Net Income {jn ho rs6mmel 1959 28,265 1960 27,381 1961 28,419 1962 26,631 1963 27,918 1964 25,330 1965 26,716 1966 29,315 1967 29,521 1968 20,988 1969 18,043 1970 28,010 1971 23,423 1972 16,508 1973 28,733 1974 19,759 1975 25,970 1976 46,254 1977 73,412* 1978 37,831 1979 38,115 1980 61,152 1981 71,675 1982 94,470 1983 105,689 610338.61 - 24 -
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OCT. 30. 1998 9:48AM ~ N0.2068 P.12/29 Confidential Attorney Work ProaAaect Attorney-Client Privilege RESPONSE: Lorillard objects to this Request as overly broad and unduly burdensome to the extent it seeks information for an unduly long period of time, up to and including the present. Further, Lorillard objects to this Request because it seeks documents that are likely to be in, and more appropriately collected from, plaintiffs' files. Lorillard also objects to this Request to the extent plaintiffs intend the phrase "tobacco or smoking" to encompass anything other than cigarettes or cigarette smoking, on the grounds that it is overly broad and seeks information that is not relevant to the subject matter of this litigation and is not reasonably calculated to lead to the discovery of admissible evidence. Lorillard further objects to the remainder of this Request to the extent it seeks information that is not relevant to the subject matter of this litigation and is not reasonably calculated to lead to the discovery ofadmissible evidence. Finally, Lorillard objects to this Request to the extent it seeks inforrnation, the disclosure of which would impair Lor411ard's rights to free speech and to petition the government as guaranteed by the First and Fourteenth Amendments to the United States Constitution and/or the Noerr-Pennington and/or separation of powers doctrine. Subject to and without waiving these or the General Objections stated above, Lorillard states that it has produced into the Minnesota Depository documents that may be responsive to this Request. These documents were produced in response to Request Nos. 4, 26, 27, 35, 36, 37, 93, 98, 99 and 110, among others, of pla.intiffs' First Set of Requests for Production of Documents a~~I37i1%f~~1T-FYaliSlf:l~kA7yirlfi7l%C4i.T.ylyLa7a .. a]Y]S~S 9207339A1 - 10 -
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OCT. 30.1998 9:50AM ~ ~ N0. 2068 P, 20/29 Conf~denteal Attorney Work Product Attorney-Cl'sent Privilege located any sales volume infonnation for the Commonwealth ofPuerto Rico. Lorillard is conducting further review of its files to deteanine its sales volurne in Puerto Rico and will supplement this Anawer with such information, if any, atter that investigation is completed. dnanner ot a.nrulare Lagnretr~ 3/h1.LZi:6v9Tc"J . Subject to and without waiving these or the General Objections set forth above, Lorillard states that it sells cigarettes to distributors, not to individuals in the United States. Lorillard further states that it has no method of tracking retail sales to persons under the age of 18 and, therefore, cannot "state the number of [Lorillard's) cigarettes ... sold to individuals under the age of 18 in the United States." In addition, Lorillard states that its policy is to market only to individuals who are of legal age to putchase cigarettes. d. Nnuaber of Loriltard Cigare pF oid t® Bndividualc glnder the Agr of tR in Anerto WCn Subject to and without waiving these or the General Objections set forth above, Lorillard states that it sells or has sold cigarettes to distributors or retailers, not to individuals, in Puerto Rico. Lorillard further states that it has no method of tracking retail sales to persons under the age of IS and, therefore, cannot "state the number of [Lorillard's] cigarettes ... sold to individuals under the age of 18 in Puerto Rico." In addition, Lorillard states that its policy is to market only to individuals who are of legal age to purchase cigarettes. 1i'LT R() ATnRY Nn 3.: For each individual year since 1954, setting forth with specificity the source(s) of the iaformaflon relied upon, please state the number of oaoz39a.ot - ls -
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OCT. 30. 1998 9:49AM ® N0.2068 P.16/29 Contedential Attorney Work Product Attorney-Client Privilege responsive to this Request. Those documents were produced in response to Request Nos.4, 37, 42, 71, 79, and SD, among others, of plaintiffs' First Set of Requests for Production of Documents. In addition, Lorillard is conducting farther review of its files for additional responsive docurnents, if any, and will supplement this Response in accordance with the Federal Rules of Civil Procedure. INTERROGATORIES IN'~'R,_RqGATORY NO. t_: For each individual year since 1954, setting forth with specificity the source(s) of information relied upon, please ldentify the name of each brand of cigarette manufactured, distributed and/or sold by defendant for use in Puerto R'sco. ANSWRR: Lorillard objects to this Inteirogatory as overly broad and unduly burdensome to the extent it seeks information for an unduly long period of time, up to and including the present. Lorillard further objects to this Interrogatory to the extent it seeks publicly available iniformation. The burden of obtaining such information is substantially the same for the plaintiff as it is for Lorillard. Subject to and without waiving these or the General Objections stated above, Lorillard states that the following cigarette brands were and/or ara manufactured and sold by Lorillard or its predecessor in the United States: Aspen Maverick Specials Beech-Nut Max Bistro Murad 020733AAI - 14 •
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OCT.30.1998 9:48AM 40 N0, 2068 P. 13/29 Confddentdal Attorney Work Product Attorney-Client Privilege In addition, Lorillard is conducting further review of its files to find additional responsive documents, if any, and will supplement this Response in accordance with the Federal Rules of Civil Procedure. RBQirF.RT NO_ 5; Please produce copies of all Spanish-language documents referring or relating to the health effects of smoking. RESPONSE: Lorillard objocts to this Request as overly broad and unduly burdensome to the extent it purports to require Lorillard to produce documents from the files of third parties and seeks inforrnation for an unduly long period of time, up to and including the present. Lorillard also objects to this Request to the extent it seeks publicly available inforrttation The burden of obtaining such information is substantially the same for plaintiffs as it is for Lorillard. Lorillard also objects to this Request to the extentplaintiffs intend the tenn "smoking" to encompass anything other than cigarettes or cigarette smoking on the grounds that it is overly broad and seeks inforLnation that is not relevant to the subject matter of this litigation and is not reasonably calculated to lead to the discovery of admissible evidence. Lorillard also objects to this Request to the extent it seeks information or documents relating to claims that are preempted by the Federal Cigarette Labeling and Advertising Act, codified as amended at 15 U.S.C. 1331-41. S= C•i:nnllonr v. T.i o tt SirO un Tn ., 505 U-S. 504 (1992). Finally, Lorillard objects to this Request to the extent it seeks documents, the disclosure of which would impair Lozillard's right to free speech guaranteed by the First and Fourteenth Amendments to the United States Constitution, and the Noerr-Pennington doctrine. 0207338.01 - 11 -
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n, +n~n A rnu. OCT. 30. 1998 9:50AM 0 1968 10.1 1969 9.2 1970 8.5 1971 8.9 1972 8,7 1973 8.5 1974 8.3 1975 7.9 1976 8.1 1977 8.8 1978 9.1 1979 9.7 1980 9.7 1981 9.2 1982 8.7 1983 9.2 1984 8.2 1985 8.1 1986 8.1 1987 8.2 1988 8.2 1989 8.0 1990 7.6 1991 7.3 1992 7.2 1993 7.1 1994 7.5 1995 8.0 1996 8.4 1997 8.7 - 1in OnLO 0 '19i9n ® - N0. 2068 P. 22/29 Confidential Attorney Work Product Attorney-Client Privilege Lorillard is investigating whether it has total domestic market share information for any yearprior to 1962, and will supplement this Answer with that information, if any, in accordanoe with the Federal Rules of Civil Procedure upon completion of that investigation. CID G\ w 0207338.01 ' 20- d~. Cb ~ C_+`S CD
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OCT. 30. 1998 9:47AM ~ ~ N0, 2068 P. 10/29 Confidential Attorney Work Product Attorney-Client Privilege over the last forty-five years. Lorillard further states'that it is unduly burdensome, ifnot impossible, for it to identify and produce every single Lorillard oigarette advertisement which appeared in Puerto Rico, along with the names and dates of the specific publications in which the advertisement appeared. Without waiving any objections, Lorillard states, however, that it has produced into the Minnesota Depository documents that may be responsive to this Request. Those documents were produced in response to Request Nos. 4, 35, 36 and 110, among others, of plaintiffs' First Set of Requests for Production of Documents, and Request Nos. 1 and 2 of plaintiffs' Fourth Set of Requests for Production of Documents ot nmmneso Philin Nlontis Incoroorated ~ In addition, Lorillard is undertaking further review of its files to find additional responsive documents, if any, and will supplement this Response in accordarnce with the Federal Rules of Civil Procedure. RW JEST _Td0 't.: Please produce copies of all speeches, public pronouncements or public announcements (including drafts and comments thereto) made by or on behalf of defendant in Puerto Rico from 1954 to the present which refer or relate to cigarettes, tobacco or smoking. For each speech, public pronouncement or public announcement, please also produce all documents necessary to identify to whom it was made and the date(s) on which it was made. >2 .~ONSR: Lorillard objects to this Request as overly broad and unduly burdensome to the extent it seeks information for an unduly long period of time, up to and including the present. Lorillard also objects to this Request to the extent plaintiffs intend the phrase "tobacco or smoking" to encompass anything other than cigarettes or cigarette smoking, on the grounds that D20733p.0I - 9 °
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OCT. 30. 1998 9:49AM ~ Century* (*sold to Reynolds in 1983) Danville Duncan Scotch Cut Embassy Golden Lights Harley Davidson Helmar Heritage Kent L.T. Brown Filter Luke Filter King Marken Maverick N0, 2068 P, 17/29 Confidenti$l Attorney Work Product Attorney-Client Privilege Newport O1dGold Rebel Redford Satin Spring Spring Lemon Style Triumph True York Zack In addition, Lorillard has identified the following brands as Lorillard brands shipped to distributors physically located within the Commonwealth of Puerto Rico: Newport, Kent, True, Old Gold, and Spring. Lorillard states that the foregoing information was obtained from a March 1, 1969 brand information sheet. Further, the brands listed do not necessarily correspond precisely to the brands sold to retail consumers in the Commonwealth of Puerto Rico, as some cigarettes shipped to wholesalers within the Commonwealth may not have later been the subject of retail sales therein. Lorillard also states that it is undertaking further review of its files in an effort to locate additional information identify{ng Lorillard brands shipped to distaibutors in Puerto Rico, and will supplement this Answer with such information, if any, in accordance with the Federal Rules of Civil Procedure. RvTF.RRO .ATORY NO Z; For each individual year since 1954, setting forth with specificity the source(s) of the information relied upon, please state the number of defendant's cigarettes sold In the United Ststes, sold in Puerto Rico, sold to individuals under the age of 18 in the United States, and sold to individuals under the age of iS in Puerto Rico. 0207338.01 - 15 -
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OCT.30.1998 9:46AM 0 N0.2068 P.1/29 ConE¢dentiat Attorney Work Product Attorney-Client Privilege or control, as such requirements are inconsistentwith Lotallard's obligations under the Federal Rules of Civil Procedure. E. Lorillard objects to these Interrogatories and Requests to the extent they seek the disclosure ofinformation protected from discovery by the attorney-client privilege, the work product doctrine, the joint defense privilege or common interest privilege, and/or any other applicable privileges and exemptions. F. Lorillard objects to these Interrogatories and Requests to the eXtent they seek information that is not relevant to the subject matter of this litigation and is not reasonably calculated to lead to the discovery of admissible evidence. G. Lorillard objects to Paragraph (D) ofplaintiffs' "Definitions Aad Instructions" on the basis that the phrase "relating to" is vague, ambiguous and overly broad. Lorillard objects to these Requests to the extent they seek documents "relating to" or "which ... relate to," a particular subject. The phrases "which... relate to" and "relating to" are vague, ambiguous, and overly broad, particularly if they ara intended to indicate something other than documents which discuss or refer to the specified topic. For purposes of this response, Lorillard will interpret the phrases "relate to" and "relating to" as seeking documents which "discuss or refer to" the specified topic, H. Lorillard objects to these Interrogatories and Requests as being overly broad and unduly burdensome to the extent they request infotmation for an unreasonably long period of time; up to and including the present. I. ' Lorillard objects to these Intetxogatories and Requests to the extent they seek confidential, trade secret, proprietary, or highly competitively sensitive infomaation which is subject om733e.01 - 5 -
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OCT. 30. 1998 9:48AM 0 ® y0.2068 P. 14/29 Confidential Attorney Work Product Attorney-Client Privilege 5ubject to and without waiving these or the General Objections stated above, Lorillard states that it has produced into the Niinnesota Depository documents that may be responsive to this Request. These documents were produced in response to Request Nos. 4. 37, 41, 42, 48, 125,127,129,131, and 132, among others, of plaintiffs' First Set of Requests for Producfion ofDocuments ig Sta nfMinnPCnta,~ et al y Philip Meiric n n umt d_t In addition, Lorillard is conducting further review of its files to find additional responsive documents, if any, and will supplement this Response in accordance with the Federal Rules of Civil Procedure. k F~T e~F T Nn_ 6: Please produce copies of all Spanish-language doeuments referring or relating to uo-rderage smoking. RRCPnN .: Larillard objects to this Request as overly broad and unduly burdensome to the extent it purports to require Lorillaid to produce documents from the files ofthSrd parties and seeks information for an unduly long period of time, up to and including the present. Lorillard also objects to this Request to the extent it seeks publicly available information. The burden of obtaining such information is substantially the same for plaintiffs as it is for Lorillard. Lorillard also objects to this Request to the extent plaintiffs intend the term "smoking" to encompass anything other than cigarettes or cigarette smoking on the grounds that it is overly broad and seeks information that is not relevant to the subject matter of this litigation and is not reasonably calculated to lead to the discovery of admissible evidence. Lorillard objects to this Request on the grounds that the phrase "underage smoking" is subject to varying interpretations and, therefore, is vague and ambiguous. 0207338.01 ' 12 -
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QCT.30.1996 9:46AM ~ No. 206s P. §/29 Coafadential Attorney Work Product Attorney-Client Privilege was given access to all non-privileged documents contained in the Minnesota Depository, except for highly sensitive trade secret doeuments, and certain personnel and third party information. Furthermore, on February 27, 1998, Philip Morris Incorporated, R.J. Reynolds Tobacco Company, Brown and Williamson Tobacco Corporation and Lorillard Tobacco Company posted on the Internet the first installment of the documents that they agreed would be made public in recent congressional testimony. This initial installment includes the vast majority of those documents of the foregoing companies selected from the Minnesota Depository by the Minnesota Attorney General in the Minnesota Litigation and an index to those doouments. The index includes information regarding the Mimiesota Litigation document requests to which the documents are responsive, and is searchable using this criterion. Documents containing highly confidential information, certain personnel and third party information and documents protected from discovery by the attonney-client privilege and the work product doctrine will not be included either on the website or the index. In addition, certain oversized documents, videotapes, and other non-standard media are fully indexed on the Internet site, but are not available in image form. Subject to these limitations, additional documents produced in the Minnesota Litigation will be posted to the website in installments as quickly as possible. The websites of Lorillard and the other companies are available through www.tobaceoresolution.oom. B. Lorillard objects to these lnterrogatories and Requests on the ground that the Commonwealtbh of Puerto Rico already has possession of, or access to, a substantial volume of Lorillard's documents and other materials, many of which are sought by these Requests or contain information sought by these Interrogatories. The Commonwealth of Puerto Rico has possession of, 020733a01 - 3 -
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OCT.30.1998 9:41AN ~ - * NO• 2068 P. 9/29 Confidential Attorney Work Product Attorney-Cl'aenE Privilege RESPONSE: Lorillard objects to this Request as overly broad and unduly burdensome to the extent it seeks information for an unduly long period of time, up to and including the present, and to the extent it puports to require Lorillard to identify and produce "all ... product advertisements, editorial advertisements, [and] position statement advertisements" run by Lorillard in Puerto Rico, along with the names and dates of the publications in which they appeared. Lorillard objects to Plaintiffs' use of the phrase "etc." because it is subject to varying interpretations and is therefore vague and ambiguous. Lorillard also objects to this Request to the extent it seeks information that is not relevant to the subject matter of this litigation and is not reasonably calculated to lead to the discovery of admissible evidence. l.orillard ftarther objects to this Request to the extent it seeks publicly available information. The burden of obtaining such information is substantially the same for plaintiffs as it is for Lorillard. Lorillard also objects to this Request to the extent it seeks information or documents referring to the advertising, marketing or promotion of cigarettes after July 4, 1969 on the grounds that it seeks information or documents relatin& to claims that are preempted by the Federal Cigarette Labeling and Advertising Act, codified as amended at 15 U.S.C. §§ 1331-41. S=Cipol7one v. T.igg .tt car~ o,~Tn_r._., 505 U.S. 504 (1992). Lorillard fiarther objects to this Request to the extent it seeks documents, the disclosure of which would impair Lotallard's right to free speech guaranteed by the First and Fourteenth Amendments to the United States Constitution, and the Noerr-Pennington doctrine. Subject to and without waiving these or the General Objections stated above, Lorillard states that it does not maintain any archive which contains "all product advertisements, editorial advertisements, [and] position statement advertisements"Lorillard has purchased or placed 0207338,01 - 7 - 1 1 " '
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i ® IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO PEDRO ROSSELLO, in his capacity as GOVERNOR OF ) THE COMMONWEALTH OF PUERTO RICO, JOSE A. ) FUENTES AGOSTINI, in his capacity as ATTORNEY ) GENERAL OF THE COMMONWEALTH OF PUERTO ) RICO, on behalf of the COMMONWEALTH OF ) PUERTO RICO, and THE COMMONWEALTH OF ) PUERTO RICO, ) ) Plaintiffs, ) ) v. ) ) BROWN & WILLIAMSON TOBACCO ) CORPORATION as successor by merger to THE ) AMERICAN TOBACCO COMPANY, ) et al., ) ) Defendants. ) ) Civil No. 97-1910 (JAF) LORILLARD, INC.'S RESPONSES TO THE COMMONWEALTH OF PUERTO RICO'S SEPTEMBER 21. 1998 SET OF INTERROGATORIES Lorillard, Inc., pursuant to Rules 26 and 33 of the Federal Rules of Civil Procedure, responds to "The Commonwealth of Puerto Rico's September 21, 1998 Set of Interrogatories" (hereinafter referred to as "Interrogatories") as follows: INTRODUCTORY NOTE The Commonwealth of Puerto Rico served its Interrogatories on Lorillard Tobacco Company and Lorillard, Inc., among other defendants. Lorillard Tobacco Company. is and has been the operating company and cigarette manufacturer using the "Lorillard" trade name since December 29, 1989. Prior to that date, the "Lorillard" operating company was Lorillard, Inc., formerly known as Lorillard, a division of Loew's Theatres, Inc. On December 29, 1989, substantially all of the assets and liabilities of Lorillard, Inc., including corporate records relating to the operations, were co 0\ w ~ Cn Z_ GEN 460248 a
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-6- and provide expert reports as required by the Court's September 9, 1998 Final Pretrial' Schedule and Trial Setting. Subject to and without waiving these or the General Objections stated above, and pursuant to Rule 33(d) of the Federal Rules of Civil Procedure, Lorillard states that it has produced into the Minnesota Depository documents which may provide information responsive to this Interrogatory in response to Request Nos. 4, 24 and 25, among others, of Plaintiffs' First Set of Requests for Production of Documents in State of Minnesota. et al. v. Philip Morris Incorporated. et al. Furthermore, many of these same documents were produced to the Commonwealth of Puerto Rico's counsel in the Florida and Texas Medicaid Reimbursement Actions and, most recently, on June 3, 1998 in the Oklahoma action in response to Request No. 3 of Plaintiffs' Revised Requests to The American Tobacco Company, et al. Lorillard refers plaintiffs to those documents because the burden of deriving or ascertaining responsive information from those documents is substantially the same for plaintiffs as it is for Lorillard. INTERROGATORY 1VO. 2: Please state whether defendant (or any person/organization on behalf of or at•the request of defendant or its counsel) has ever undertaken to design a model, methodology, approach or analysis to estimate, calculate, approximate, determine oir study the amount of any state funded, federally funded or privately funded health care costs that may be associated with, caused by, and/or attributable to smoking. If so, please describe in detail these undertakings. A fully responsicv answer should include the name(s) of the person(s) / organization(s), the address of the person(s) / organization(s), the date(s) on which these undertakings took place, a description of the model, methodology, approach or analysis undertaken and the results of these undertakings (or in the event these undertakings were not carried out to completion, any preliminary results, the reason(s) why these undertakings were not carried out to completion, and the identity of the person(s) responsible for deciding not to carry them out to completion). co ON cra ~ ~ ~ GEN 460253
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VERIFICATION STATE OF NORTH CAROLINA ) ) COUNTY OF GUILFORD ) ss. I, VINCENT M. LOSITO, am the Assistant Secretary and Assistant Treasurer of Lorillard Tobacco Company, a Defendant in this action. I have read the foregoing Lorillard Tobacco Company's Responses to Plaintiffs' First Set of Interrogatories and Requests for Production to Lorillard Tobacco Company, know the contents thereof, and am informed and believe that the Responses are true and correct. 'I rrhA Vincent M. Losito Assistant Secretary and Assistant Treasurer Lorillard Tobacco Company Subscribed and sworn to before me, a notary public, this 30"S'k day of Octobqr, 1998. bN .~ OFFICIAL SEAL NOTARY PUBLIC•NORiH CAROLINA COUNTY OF GUILFORD JEAN M. PRICE My Commission Expires Aug. 16, 2003
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® 43
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OCT.30.1998 9:47AM ® 0 N0.2068 P. 8/29 Confidential Attorney Work Product Attorney-CGent Privilege to special legal protection without the entry of an appr®priate protective order and the implementation of procedures to ensure the continued confidentiality of such documents or information. 7. Lorillard objects to plaintiffs' demand that documents be produced at the offices of Benjamin Acosta, 7r. The documents Lorillard agrees to produce in response to these and subsequent requests will be produced for inspection and copying at the Minnesota Depository and/or the office of counsel for Lorillard, as specified by Lorillard, at a time that is mutually agreeable to the parties. Any copies will be made at plaintiffs' expense. These General Objections are incorporated into the following responses and shall be deemed continuing as to each Interrogatory and Request, whether or not specifically stated, and are not waived, nor in any way limited, by the responses. D~jMENT.CI' F._qfUFST1R:b REQiTST NO_ i: Please produce copies of all press releases (including drafts and comments thereto) referring or relating to cigarettes, tobacco or smoking issued by or on behalf of defendant from ] 953 to present. For each sucM press reiease, please also produce all documents necessary to identify to whom it was distributed or circulated, where it was distributed or circulated and the date(s) on which it was distributed or circulated. RFS~ PONSE: Request withdrawn by the Commonwealth of Puerto Rico, by letter dated October 2, 1998. REQiiF.ST NO. 2: Please produce copies of all advertisements (product advertisements, editorial advertisements, position statement advertisernents, etc.) placed by or ®n behalf of defendant in publications pubinshed, distributed or circulated in Puerto Rico since 1953. For each advertisement, please also produce all documents necessary to identify the publication(s) in which it ran and the date(s) on which it ran. 0207338.01 - 6 -
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® SERVICE LIST I HEREBY CERTIFY that a true and exact copy of Lorillard, Inc.'s Response to the Commonwealth of Puerto Rico's September 21, 1998 Set of Interrogatories will be served by mail on: Pedro J. Durand Deputy Attorney General for Litigation Department of Justice P. 0. Box 9020912 San Juan, PR 00902-0192 Benjamin Acosta Law Offices of Benjamin Acosta, Jr. P. 0. Box 9023518 San Juan, PR 00902-3518 Ronald Motley Ness, Motley, Loadholt, Richardson & Poole P. 0. Box 1137 Charleston, SC 29402 Jack E. McClard Douglas W. Davis Maya M. Eckstein Hunton & Williams Riverfront Plaza 951 East Byrd Street Richmond, VA 23219-4074 Manuel A. Guzman P. 0. Box 193850 San Juan, PR 00919-3850 Peter Bellacosa Kirkland & Ellis 153 E. 53rd Street New York, NY 10022 Mark Cunha Andrew T. Frankel Kathleen Turland Simpson Thacher & Bartlett 425 Lexington Avenue New York, NY 10017-3954 Eric Tulla Rivera, Tulla & Ferrer 50 Quisqueya Street Hato Ray San Juan, PR 00917 Sam Mills Daniel F. Kolb Vincent T. Chang Davis Polk & Wardwell 450 Lexington Avenue New York, NY' 10017 Robert F. McDermott, Jr. Jones, Day, Reavis & Pogue Metropolitan Square 1450 G Street, NW Washington, DC 20005 Robert Gaffey Michael S. Chernis Jones, Day, Reavis & Pogue 599 Lexington Avenue New York, NY 10002 GEN 460258
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OCT.30.1998 9:50AM ® 9 - N0.2068 P. 23/29 Confidential Attorney Work Prodwct Attorney-Client Privilege Subject to and without waiving these or the General Objections set forth above, Lorillard states that John C. Maxwell, Jr. publishes information pertaining to international cigarette sales, including Pucrto 12ico. Lorillard is uncertain of the underlying sources relied upon in the production of this data. The following information regarding Loriliard's market share for cigarette sales in the Commonwealth of Puerto Rico was derived from such reports- Vear 1993 8.1 1994 7.3 Lorillard states that it is undertaking further review of its files in an effort to locate additional information regarding its market share in Puerto Rico and will supplement this Answer with such information, if any, in accordance with Federal Rules of Civil Procedures. c. Pgrc n ge Salec te Tndividnalc Retow the Agof 1_ S in the ilnited Ctates Subject to and without waiving these or the General Objections set forth above, Lorillard states that it sells cigarettes to distributors, not to individuals inthe United States. Lorillard further states that it has no method of tracking retail sales to persons under the age of 18 and, therefore, cannot "state the number of [Lorillard's] cigarettes .., sold to individuals under the age of IS in the United 5tates .., as a percentage of the total number of cigarettes ... sold to individuals . 01\ UA 4-- 020Ms.01 -21 - co \10
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0 -7- RESPONSE: Lorillard objects to this Interrogatory because it is duplicative of Interrogatory No. 1. Subject to and without waiving this or the General Objections stated above, Lorillard incorporates herein its response to Interrogatory No. 1. INTERROGATORY NO. 3: Please describe in detail each and every instance in which defendant has disclosed to the federal government (i.e., any person employed by or any part or subpart of the executive branch, the legislative branch and/or the judicial branch) smoking and health related documents to which it has at any time asserted a claim of attomey-client privilege. A fully responsive description should be broken down by each disclosure and include, without limitation, information identifying the documents (e.g., bates number, author, recipient, date, etc.), the date on which the documents were disclosed, the proceeding in which the documents were disclosed, the reason the documents were disclosed (e.g., court order, in camera review, subpoena, investigative demand, letter agreement, informal agreement, etc.), the person/entity to whom the documents were disclosed, the present whereabouts of the disclosed documents, whether defendant continues to assert a claim of privilege to the disclosed documents, and'the identity of the person most knowledgeable about each disclosure. RESPONSE: Lorillard objects to this interrogatory on the grounds that it is overly broad and unduly burdensome and seeks information neither relevant to the subject matter of this lawsuit nor relevant to any claim of privilege asserted by Lorillard in this lawsuit nor reasonably calculated to lead to the discovery of admissible evidence. Lorillard previously produced in the Oklahoma action to the Commonwealth's national counsel a privilege log listing and describing documen~s responsive to requests in Minnesota for which Lorillard continues to assert a claim of privilege. Plaintiffs also have access to the Minnesota depository where Lorillard placed documents for which Lorillard does not assert a claim of privilege and which were responsive to the broad discover~, a. Gv ~ Co ' - ~ 4!- - o~ GEN 460254
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-5- RESPONSES TO IN'I'ERROGATORIES . INTERROGATORY NO. 1: Please state whether defendant (or any person/organization on behalf of or at the request of defendant or its counsel) has ever undertaken to estimate, calculate, approximate, determine, analyze, study or model the health care costs and/or social costs that may be associated with, caused by, and/or attributable to smoking. If so, please describe in detail these undertakings. A fully responsive answer should include the name(s) of the person(s) / organization(s), the address of the person(s) / organization(s), the date(s) on which these undertakings took place, and the results of these undertakings (or in the event these undertakings were not carried out to completion, any preliminary results, the reason(s) why these undertakings were not carried out to completion, and the identity of the person(s) responsible for deciding not to carry them out to completion). RESPONSE: Lorillard objects to this Interrogatory to the extent it purports to (i) require searches of f les and production of information in the possession of third parties; or (ii) require Lorillard to produce information and materials not within Lorillard's possession, custody, or control, as such requirements are inconsistent with Lorillard's obligation under the Federal Rules of Civil Procedure. Lorillard objects to thi's Interrogatory to the extent it seeks the disclosure of information protected from discovery by the attorney-client privilege, the work product doctrine, the joint defense privilege or common interest privilege, and/or any other applicable privileges or exemptions. Lorillard objects to this Interrogatory because it must speculate as to the exact meaning Plaintiffs place on the phrases "associated with" and "health care costs and/or social costs" which are subject to varying interpretations and are therefore vague, confusing and ambiguous. Lorillard objects to this Interrogatory to the extent it seeks information that is not relevant to the subject matter of this litigation and is not reasonably calculated to lead to the discovery of admissible evidence. Lorillard objects to this Interrogatory because it is premature to the extent it seeks information on subjects upon which Defendants' damages experts will testify. Defendants' will name their damages experts 00 rn U~a 4:- cG ~ 41- GEN 460252
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0 -g_ requests served in the Minnesota action, as well as documents produced in any other smoking and health action by Lorillard subsequent to the May 8, 1998 Consent Decree entered in the Minnesota action. INTERROGATORY NO. 4: Please describe in detail any and all occasions where defendant has transferred the sole copy/copies of a smoking and health related document in its possession to defendant's law ftrm(s), past or present, and which defendant has not produced into the Minnesota document depository or listed on its revised Oklahoma privilege log. A fully responsive description should be broken down by each transfer and include, without limitation, information identifying the documents transferred, information identifying the law firm to which defendant transferred the documents, the date on which the transfer occurred, the identity of the person(s) ordering / authorizing the transfer, the reason for the transfer, any documents discussing the transfer, and information stating the present whereabouts of the transferred documents. RESPONSE: Lorillard objects to this Interrogatory because it is overly broad, unduly burdensome and overly expensive taking into account the needs of the case and the issues in controversy. Lorillard objects to this Interrogatory to the extent it seeks information for all time or for an unreasonably long period of time. Lorillard also objects to this interrogatory to the extent it seeks information that is not relevant to the subject matter of this litigation and is not reasonably calculated to lead to the discovery of admissible evidence. Subject to and without waiving these or the General Objections stated above, Lorillard states that there may have been some instances where the sole copies of Lorillard documents have been temporarily in the possession of litigation counsel for litigation purposes, including producing such documents in response to discovery requests. Lorillard also states that all such non-privileged documents that were responsive to discovery
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by the attomey-client privilege and the work product doctrine will not be included either on the website or the index. In addition, certain oversized documents, videotapes, and other non-standard media are fully indexed on the Internet site, but are not available in image form. Subject to these limitations, additional documents produced in the Minnesota Litigation will be posted to the website in installments as quickly as possible. The websites of Lorillard and the other companies are available through www.tobaccoresolution.com. B. Lorillard objects to these Interrogatories on the grounds that the Commonwealth of Puerto Rico already has possession of or access to a substantial volume of Lorillard's documents and other materials, many of which include information sought by the'se interrogatories, by virtue of the fact that plaintiff is represented by Ness, Motley, Loadholt, Richardson & Poole ("Ness Motley"). Ness Motley has documents produced by Lorillard in the following cases, among others: (1) Sta e of Florida, et al. v. The American Tobacco Company, et al., Case No. 95-1466A0 (Fla. Cir. Ct.); (2) Castano v. The American Tobacco Company, et al., Civil Action No. 94-1-44c/w94- 3000(E.D.La.): (3) In re Mike Moore. Attornev General Ex. Rel., State of Mississinpi Tobacco Litigation, Case No. 94-1429 (Miss. Ch. Ct.); (4) Butler, et al. v. R.J. Reynolds Tobacco Co._ et al., No. 94-5-53 (Miss. Cir. Ct.); (5) Barnes v. R.J.Revnolds Tobacco Co, et al, No. 84-56 (N.J. Super.); (6) Haines v. LieQett Group Inc.. et al.. No. 84-678-SA (D.N.J.); (7) State of Oklahoma, et al. v. R.J Revnolds Tobacco Co.. et al., CJ-96-1499-L (Cleveland County, Okla.); (8) State of Texas v. The American Tobacco Companv, et al., Civil No. 5:96-CV-0091; and (9) State of Minnesota v. Philip Morris, et al., Case No. C1-94-8565 (Ramsey Co. Minn.). C. Lorillard objects to'the "Instructions" and the "Definitions" to the Interrogatories to the extent they attempt to impose obligations on Lorillard Tobacco Company other than those imposed or authorized by the Federal Rules of Civil Procedure and to the extent they attempt to alter the plain meaning of the words used in the Interrogatories. D. Lorillard objects to the "Instructions" to the extent they purport to impermissibly limit Lorillard Tobacco Company's right to claim that information is protected from discovery by the attorney-client privilege, the work product doctrine, the joint defense privilege or common interest privilege, and/or any other applicable privileges or exemptions. E. Lorillard objects to these Interrogatories to the extent they seek confidential, trade secret, proprietary, or highly competitively sensitive information which is subject to special legal protection without the entry of an appropriate protective order and the implementation of proceduras to ensure the continued confidentiality of such documents or information. F. Lorillard objects to these Interrogatories as being overly broad and unduly burdensome to the extent they request information for an unreasonably long period of time, to and including the present. GEN 460150
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OCT.30.1998 9:51AM ® .N0.2068 P.24/29 Confidential Attorney Work Product Attorney-Client Privilege under the age of 18 in the United States." In addition, Lorillard states that its policy is to market only to individuals who are of legal age to purchase cigarettes. Subject to and without waiving these or the General Objections set forth above, Lorillard states that is sells cigarettes to distributors, not to individuals in the Commonwealth of Puerto Rico. Further, Lorillard states that it has no method of tracking the retail sales of its cigarettes in Puerto Rico and, therefore, cannot "state the number of [Lorillard's] cigarettes ... sold to individuals under the age of 18 in Puerto Rico as a percentage of the total number of cigarettes ... sold in Puerto Rico." Lorillard further states that its policy is to market its cigarettes only to individuals who are of legal age to purchase cigarettes. INT .RRn .ATnRY l.Tn. 4.: For each individual year since 1954, setting forth with specificity the source(s) of the imformation relied upon, please state the gross and net revenues/profats from the sale of defendant's cigarettes in the United States, in Puerto Rico, to ind'nviduals under the age of 18 in the United States, and to individuals under the age of 18 in Puerto Rico. ANSWF.R: Lorillard objects to this Interrogatory as overly broad and unduly burdensome to the extent it seeks infomiation for an unduly long period of time, up to and including the present. Lorillard states that it does not make retail sales of its cigarettes and, therefore, responding to this Interrogatory would require searches of files and production of documents in the possession of third parties, or require Lorillard to produce information and materials not within Lorillard's possession, custody, or control. Therefore, Lorillard fiuther objects to this Interrogatory 0207999.01 - 2z - Co rn C.v -F~l b ~- Ca.! N
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-2- transferred to Lorillard Tobacco Company. At that time Lorillard, Inc. became a holding company and the parent corporation of Lorillard Tobacco Company. For purposes of convenience and continuity, answers to these Interrogatories by Lorillard, Inc. refer to the operations by it or its predecessors, as applicable; prior to December 29, 1989 and by Lorillard Tobacco Company since December 29, 1989. In these responses, the term "Lorillard" refers to Lorillard Tobacco Company after December 29, 1989 and to Lorillard, Inc. or its predecessors, as applicable, prior to December 29, 1989. GENERAL OBJECTIONS A. Lorillard objects to these Interrogatories on the arounds that they are overly broad and unduly burdensome to the extent that they seek to impose on Lorillard the burden of engaging in a massive new and duplicative document review when a readily available and accessible source of information and documents exists. That source is the document depository in Minneapolis, Minnesota, known as the "Minnesota Depository," which was established by Court Order dated June 15, 1995 in State of Minnesota (Humphrey) v. Philip Morris, et al., Case No. C1-94-8565 (Ramsey Co. Minn.). To date, Lorillard has produced roughly 1.79 million pages of documents into the Minnesota Depository. Lorillard irill identify the Minnesota Request numbers in response to which Lorillard has produced documents into the Minnesota Depository in lieu of providing answers to certain of these Interrogatories because the burden of deriving or ascertaining those answers is substantially the same for plaintiff as it is for Lorillard. On March 28, 1998, in response to a motion filed by Lorillard, Philip Morris Incorporated, R.J. Reynolds Tobacco Company, Brown & Williamson Tobacco Corporation, The Council for Tobacco Research-U.S.A., Inc., and The Tobacco Institute, Inc. to make public the non- privileged, non-highly confidential documents that their companies produced into the Minnesota Depository (with the exception of documents containing certain personnel and third party information), the Minnesota Court entered an Order Providing Public Access to the Minnesota Document Depository. Pursuant to terms of this Order, on or about April 13, 1998, the public was given access to all non-privileged documents contained in the Minnesota Depository, except for highly sensitive trade secret documents, and certain personnel and third party information. Furthermore, on February 27, 1998, Philip Morris Incorporated, R.J. Reynolds Tobacco Company, Brown & rh'illiamson Tobacco Corporation and Lorillard Tobacco Company posted on the Internet the first installment of the documents which they agreed would be made public in recent congressional testimony. This initial installment includes the vast majority of those documents of the foregoing companies selected from the Minnesota Depository by the Minnesota Attorney General in the Minnesota Litigation and an index to those documents. The index includes information regarding the Minnesota Litigation document requests to which the documents are responsive, and is searchable using this criterion. Documents containing highly confidential information, certain personnel and third party information and documents protected from discovery GEN 460249
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N0.2068 ^P.21/29.. ~ OCT.30.1998 9:51AM ® 984 21,375 Confidential Attorney Work Product Attorney-CEEemmt Privilege 1985 137,094 1986 192,344 1987 367,511 1988 368,163 1989 398,782 1990 482,757 1991 488,277 1992 740,623** 1993 346,376 1994 357,760 1995 380,057 1996 444,393 ~ Reflects one-time increase upon disposition of substantial assets. ** Reflects increase due to institution of accounting methodology changes, b. S'roac and Net Re n A q/ProTitc from Sales of Y nrella_r 1 Cig9ret$g s in 1>ererto Rico Lorillard obj ects to this Interrogatory because it seeks infotmation that is likely to be in, and more appropriately obtained from, plaintiffa' files. Subject to and without waiving these or the General Objections set forth above, Lorillard states that, to date, it has been unable to locate any gross and net revenuesJprofits information for Puerto Rico. Lorillard also states that it is conducting further review of its files for information regarding its sales volume in Puerto Rico and will supplement this Answer with such information, if any, in accordance with the Federal Rules of Civil Procedure. ,: c. C.ross Revenu s otits from Sales to IndividLal• iluder theAge of 19 in the U.C. Subject to and without waiving these or the General Objections set forth above, Lorillard states that it sells cigarettes to distributors, not to individuals in the United States, and 0207338.03 - 25 °
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-12- Vicente Santori-Coll Law Offices Hato Rey Plaza, Suite 2 200 Jesus T. Pinero Avenue Hato Rey, PR 00918 Steve Klugman Harry Zirlin Debevoise & Plimpton 875 Third Avenue New York, NY 10022 David Cohen Kirkpatrick & Lockhart 1500 Oliver Building Pittsburgh, PA 15222 Jamie Sifre-Rodriguez Sanchez Betances & Sifre Suite 500, Bolivia 33 Hato Rey, PR 00919 George Bordon Mike Sundermeyer Gerson Zweifach Williams & Connolly 725 Twelfth Street, N.W. Washington, D.C. 20005-5901 Ramon A. Bauza Higuera Bauza & Davila 63 Fortaleza Street Old San Juan, PR 00901 Hector Reichard de Cardona, Esq. Reichard & Escalera PO Box 364148 San Juan, PR 00936-4148 Pedro Santa Sanchez, Esq. O'Neill & Borges American Int'l Plaza, 8t° Floor 250 Munoz Rivera Ave. Hato Rey, PR 00918 Edgar Cartagena Santiago, Esq. Goldman Antonetti & Cordova PO Box 70364 San Juan, PR 00936-0364 Marie V. Santacroce, Esq. Kasowitz Benson Torres & Friedman, LLP 1301 Avenue of the Americas New York, NY 10019-6022 Juan A. Ramos_ Diaz, Esq. Juan A. Ramos Diaz Law Offices 359 de Diego Avenue, Suite 601 San Juan, PR 00909-1711 Salvador Antonetti, Esq. Fiddler Gonzalez & Rodriguez ` PO Box 363507 San Juan, PR 00936-3507 William Snipes Holly N. Weiss Michael A. Cooper Sullivan & Cromwell 125 Broad Street New York, NY 10004-2498 GEN 460259
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO PEDRO ROSSELLO, in his capacity as GOVERNOR OF ) THE COMMONWEALTH OF PUERTO RICO, JOSE A. ) FUENTES AGOSTINI, in his capacity as ATTORNEY ) GENERAL OF THE COMMONWEALTH OF PUERTO ) RICO, on behalf of the COMMONWEALTH OF ) PUERTO RICO, and THE COMMONWEALTH OF ) PUERTO RICO, ) ) Plaintiffs, ) ) Civil No. 97-1910 (JAF) V. ) ) BROWN & WILLIAMSON TOBACCO ) CORPORATION as successor by merger to THE ) AMERICAN TOBACCO COMPANY, ) et al., ) ) Defendants. ) ) LORILLARD TOBACCO COMPANY'S RESPONSES TO THE COMMONWEALTH OF PUERTO RICO'S SEPTEMBER 21.1998 SET OF INTERROGATORIES" Lorillard Tobacco Company, pursuant to Rules 26 and 33 of the Federal Rules of Civil Procedure, responds to "The Commonwealth of Puerto Rico's September 21-, 1998 Set of Interrogatories" (hereinafter referred to as "Interrogatories") as follows: INTRODUCTORY NOTE The Commonwealth of Puerto Rico served its Interrogatories on Lorillard Tobacco Company and Lorillard, Inc., among other defendants. Lorillard Tobacco Company is and has been the operating company and cigarette manufacturer using the "Lorillard" trade name since December 29, 1989. Prior to that date, the "Lorillard" operating company was Lorillard, Inc., formerly known as Lorillard, a division of Loew's Theatres; Inc. On December 29, 1989, substantially all of the 00 crN ~ ca ~ ~ GEN 460264 ~
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FILE No. 125 10130 "Z~s i:00 IG:L.Ok1a.NiV L.t:ti-a. LG-ii ® VE12IFICATI,.~f N STATE OF NORTH CAROLINA ) ) as. COUNTY OF GUILFORD ) 1, RICHARD B. JACOBS, am the Assistant Secretary and Assistant Treasurer of Lorillard, Inc., a Defendant in this action. I have read the foregoing Lorillard, Inc.'s Responses to The Commonwealth of Puerto Rico's September 21,1998 Set of Interrogatories, know the contents thereof, and am informed and believe that the Responses are tsu® and correct ---• -~ , OLic" Aa Subscribed and swom to before me, .a notary public, this 3D M% day of October, 1998. et OFFICIAL SEAL NOTARY PU®LIC•NCRTN CAROLINA COUNTY OF GUILFORD JEAN M. PRICE t Hr C6mm1ee9an tspInC Aug= t®, 2003 B. Jago GEN 460257
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OCT.30.1998 9:52AM ~ ~ N0.20fi8 P.29/24 Confidential Attorney Work Prodeact Attorney-Client Privilege responding to this interrogatory would require searches of files and production of documents in the possession of third parties, or require Lorillard to produce information and materials not within Lorillard's possession, custody, or control. Therefore, Lorillard further objects to this interrogatory as the imposition of such requirements is inconsistent the Federal Rules of Civil Procedure. Lorillard also objects to this interrogatory to the extent it putports to require Lorillard to produce confidential, proprietary, or highly competitively sensitive information that is subject to special legal protection without the entry of a proper order. Lorillard objects to plaintiffs' use of the phrase "gross and net revenues/profits" because it is subject to varying interpretations and, therefore, is vague and ambiguous. Lorillard further objects to this interrogatory to the extent that the requested inforrnation has been provided to the plaintiff, the Commonwealth of T'uerto Rico, and is already in the plaintiffs' possession. Subject to and without waiving these or the General Objections stated above, Lorillard states that it lacks the inforntationnecessary to make the requested calculations. Lorillard further states that the information provided in response to Interrogatory Nos. 3 and 4 by Lorillard and the other defendants will enable plaintiffs to make the requested calculations themselves. Further, plaintiffs should already have information in their files sufficient to enable such calculations. .Y`iJ C~V 411 ~ ~ Oi0733s.m -27- ~ . .:,11
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® -8- requests served in the Minnesota action, as well as documents produced in any other smoking and health action by Lorillard subsequent to the May 8, 1998 Consent Decree entered in the Minnesota action. INTERROGATORY NO. 4: Please describe in detail any and all occasions where defendant has transferred the sole copy/copies of a smoking and health related document in its possession to defendant's law firnn(s), past or present, and which defendant has not produced into the Minnesota document depository or listed on its revised Oklahoma privilege log. A fully responsive description should be broken down by each transfer and include, without limitation, information identifying the documents transferred, information identifying the law firm to which defendant transferred the documents, the date on which the transfer occurred, the identity of the.person(s) ordering / authorizing the transfer, the reason for the transfer, any documents discussing the transfer, and information stating the present whereabouts of the transferred documents. RESPONSE: Lorillard objects to this Interrogatory because it is overly broad, unduly burdensome and overly expensive taking into account the needs of the case and the issues in controversy. Lorillard objects to this Interrogatory to the extent it seeks information for all time or for an unreasonably long period of time. Lorillard also objects to this interrogatory to the extent it seeks information that is not relevant to the subject matter of this litigation and is not reasonably calculated to lead to the discovery of admissible evidence. Subject to and without waiving these or the General Objections stated above, Lorillard states that there may have been some instances where the sole copies of Lorillard documents have been temporarily in the possession of litigation counsel for litigation purposes, including producing such documents in response to discovery requests. Lorillard also states that all such non-privileged documents that were responsive to discovery requests in the Minnesota litigation have been produced by Lorillard into the Minnesota Depository. GEN 460271
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-4- F. Lorillard objects to these Interrogatories as being overly broad and unduly burdensome to the extent they request information for an unreasonably long period of time, to and including the present. G. Lorillard objects to these Interrogatories to the extent they seek the disclosure of information protected from discovery by the attorney-client privilege, the work product doctrine, the joint defense privilege or common interest privilege, and/or any other applicable privileges or exemptions. H. Lorillard objects to these Interrogatories to the extent they seek information that is not relevant to the subject matter of this litigation and is not reasonably calculated to lead to the discovery of admissible evidence. I. Lorillard objects to these Interrogatories to the extent they seek information relating to any grand jury investigation that is subject to the confidentiality provisions of Federal Rule of Criminal.Procedure 6(e) or any other applicable provision or statute. J. Lorillard objects to these Interrogatories to the extent they seek to rely upon, give res judicata or collateral estoppel effect to, impose any discovery obligation based upon or interfere w2th any discovery rulings or proceedings in courts of other jurisdictions. Lorillard further objects to these Interrogatories in as much as plaintiffs are seeking by these Interrogatories to avoid the basic requirements of due process in this Court by reference to or reliance upon rulings in or proceedings before courts in other jurisdictions. K. Lorillard objects to these Lterrogatories to the extent they purport to (i) require searches of files and productions of documents in the possession of third parties; or (ii) require Lorillard Tobacco Company to produce information and materials not within Lorillard Tobacco Company's possession, custody, or control, as such requirements are inconsistent with Lorillard Tobacco Company's obligation under the Federal Rules of Civil Procedure. L. Lorillard objects to these Interrogatories to the extent they seek information that "relate[s]" to or is "regarding" a particular subject. The terms "relate" and "regarding" as defined in paragraph "3" of the "Definitions" are vague, ambiguous, and overly broad, particularly if they are intended to mean something other than documents which discuss or refer to the specified topic. For the purposes of this response, Lorillard Tobacco Company will interpret the terms "relate" or "regarding" as seeking information that "discusses or refers to" the specified subject. These General Objections are incorporated into the following responses and shall be deemed continuing as to each Interrogatory, whether or not specif cally stated, and are not waived, nor in any way limited, by the responses. co rn -~- co ~ cs, Q-N GEN 460267
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OCT.30.1998 9:50AM ~ N0.2068 P.21/29 Confidential Attorney Work Product Attorney-Client Privilege defendant's cigarettes sold in the United States, sold in Puerto Rico, sold to individuals under the age of 18 in the United States, and sold to individuals under the age of 18 in Puerto Rico as a percentage o#'the total number of cigarettes sold in the United States, sold in Puerto Rico, sold to individuals under the age of 18 in the Unfted States, and sold to individuals under the age of 18 in Puerto Rico, respectively. ANSWER: l.orillard objects to this Interrogatory as overly broad and unduly burdensome to the extent it seeks information for an unduly long period of time, up to and including the present. Lorillard states that it does not make retail sales of its cigarettes and, therefore, responding to this lnterrogatory would require searches of files and production of documents in the possession of third parties, or require Lorillard to produce information and materials not within Lorillard's possession, custody, or control. Therefore, Lorillard objects to this Interrogatory as the imposition of such requirements is inconsistent the Federal Rules of Civil Procedure. a. T,pgil_jar, 's Share of "eotal Domestic figarette Sales (as a%) Subject to and without waiving these or the General Objections stated above, Lorillard states that John C. Maxwell, Jr. publishes information pertaining to total domestic cigarette sales by eachmanufactnreron an annual basis. The following national market share informafion was derived from such reports: Yedr 6.gr'llar 's Sh~re of Totai. T)omctic Cigaa_ __e.,tte gales_ %Y 1962 10.9 '1963 10.5 1964 9.4 1965 9.1 1966 9.3 1967 10.1 027/938.01 - 19 -
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0 -9- requests in the Minnesota litigation have been produced by Lorillard into the Minnesota Depository. Lorillard further states that all Lorillard documents responsive to discovery requests but withheld from production on the basis of privilege in State of Oklahoma et al v. R.J Reynolds Tobacco Company. et all have been properly logged in that case. INTERROGATORY NO. 5: Please describe in detail any and all occasions where defendant has transferred the sole copy / copies of a smoking and health related document in its possession to defendant's subsidiary company / parent company / sister company / affiliated company, past or present, and which defendant has not produced into the Minnesota document depository. A fully responsive description should be broken down by each transfer and include, without limitation, information identifying the documents transferred, information identifying the company to which defendant transferred the documents, the date on which the transfer occurred, the identity of the person(s) ordering / authorizing the transfer, the reason for the transfer, any documents discussing the transfer, and information stating the present whereabouts of the transferred documents. RESPONSE: Lorillard objects to this Interrogatory because it is overly broad, unduly burdensome and overly expensive taking into account the needs of the case and the issues in controversy. Lorillard objects to this Interrogatory to the extent it seeks information for all time or for an unreasonably long period of time. Lorillard objects to this interrogatory to the extent it seeks information that is not relevant to the subject matter of this litigation and is not reasonably calculated to lead to the discovery of admissible evidence. Lorillard also objects to this Interrogatory because it must speculate as to the exact meaning Plaintiffs place on the term "affiliated" and phrase "sister company" which are subject to varying interpretations and are therefore vague, confusing and . CO GEN 460256
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0 -4- G. Lorillard objects to these Interrogatories to the extent they seek the disclosure of information protected from discovery by the attorney-client privilege, the work product doctrine, the joint defense privilege or common interest privilege, and/or any other applicable privileges or exemptions. H. Lorillard objects to these Interrogatories to the extent they seek information that is not relevant to the subject matter of this litigation and is not reasonably calculated to lead to the discovery of admissible evidence. I. Lorillard objects to these Interrogatories to the extent they seek information relating to any grand jury investigation that is subject to the confidentiality provisions of Federal Rule of Criminal Procedure 6(e) or any other applicable provision or statute. J. Lorillard objects to these Interrogatories to the extent they seek to rely upon, give res judicata or collateral estoppel effect to, impose any discovery obligation based upon or interfere with any discovery rulings or proceedings in courts of other jurisdictions. Lorillard further objects to these Interrogatories in as much as plaintiffs are seeking by these Interrogatories to avoid the basic requirements of due process in this Court by reference to or reliance upon rulings in or proceedings before courts in other jurisdictions. K. - Lorillard objects to these Interrogatories to the extent they purport to (i) require searches of files and productions of documents in the possession of third parties; or (ii) require Lorillard Tobacco Company to produce information and materials not within Lorillard Tobacco Company's possession, custody, oi control, as such requirements are inconsistent with Lorillard Tobacco Company's obligation under the Federal Rules of Civil Procedure. L. Lorillard objects to these Interrogatories to the extent they seek information that "relate[s]" to or is "regarding" a particular subject. The terms "relate" and "regarding" as defined in paragraph "3" of the "Definitions" are vague, ambiguous, and overly broad, particularly if they are intended to mean something other than documents which discuss or refer to the specified topic. For the purposes of this response, Lorillard Tobacco Company will interpret the terms "relate" or "regarding" as seeking information that "discusses or refers to" the specified subject. These General Objections are incorporated intoxhe following responses and shall be deemed continuing as to each Interrogatory, whether or not specifically stated, and are not waived, nor in any way limited, by the responses. GEN 460251
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-7- these undertakings were not carried out to completion, and the identity of the person(s) responsible for deciding not to carry them out to completion). RESPONSE: Lorillard objects to this Interrogatory because it is duplicative of Interrogaton- No. 1. Subject to and without waiving this or the General Objections stated above, Lorillard incorporates herein its response to Interrogatory No. 1. INTERROGATORY NO. 3: Please describe in detail each and every instance in which defendant has disclosed to the federal government (i.e., any person employed by or any part oi subpart of the executive branch, the legislative branch and/or the judicial branch) smoking and health related documents to which it has at any time asserted a claim of attorney-client privilege. A fi11y responsive description should be broken down by each disclosure and include, without limitation, information identifying the documents (e.g., bates number, author, recipient, date, etc.), the date on which the documents were disclosed, the proceeding in which the documents were disclosed, the reason the documents were disclosed (e.g., court order, in camera review, subpoena, investigative demand, letter agreement informal agreement, etc.), the person/entify to whom the documents were disclosed, the present whereabouts of the disclosed docuinents, whether defendant continues to assert a claim of privilege to the disclosed documents, and the identity of the person most knowledgeable about each disclosure. RESPONSE: Lorillard objects to this interrogatory on the grounds that it is overly broad and unduly burdensome and seeks information neitherarelevant to the subject matter of this lawsuit nor relevant to any claim of privilege asserted by Lorillard in this lawsuit nor reasonably calculated to lead to the discovery of admissible evidence. Lorillard previously produced in the Oklahoma action to the Commonwealth's national counsel a privilege log listing and describing documents responsive to requests in Minnesota for which Lorillard continues to assert a claim of privilege. Plaintiffs also have access to the Minnesota depository where Lorillard placed documents for which Lorillard does not assert a claim of privilege and which were responsive to the broad discovery a w ~ cc \I- es7 ~ GEN 460270
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® -5- RESPONSES TO INTERROGATORIES INTERROGATORY NO. 1: Please state whether defendant (or any person/organization on behalf of or at the request of defendant or its counsel) has ever undertaken to estimate, calculate, approximate, determine, analyze, study or model the health care costs and/or social costs that may be associated with, caused by, and/or attributable to smoking. If so, please describe in detail these undertakings. A fully responsive answer should include the name(s) of the person(s) / organization(s), the address of the person(s) / organization(s), the date(s) on which these undertakings took place, and the results of these undertakings (or in the event these undertakings were not carried out to completion, any preliminary results, the reason(s) why these undertakings were not carried out to completion, and the identity of the person(s) responsible for deciding not to carry them out to completion). RESPONSE: Lorillard objects to this Interrogatory to the extent it purports to (i) require searches of files and production of information in the possession of third parties; or (ii) require Lorillard to produce information and materials not within Lorillard's possession, custody, or control, as such requirements are inconsistent with Lorillard's obligation under the Federal Rules of Civil Procedure. Lorillard objects to this Interrogatory to the extent it seeks the disclosure of information protected from discovery by the attomey-client privilege, the work product doctrine, the joint defense privilege or common interest privilege, and/or any other applicable privileges or exemptions. Lorillard objects to this Interrogatory because it must speculate as to the exact meaning Plaintiffs ' place on the phrases "associated with" and "health care costs and/or social costs" which are subject to varying interpretations and are therefore vague, confusing and ambiguous. Lorillard objects to this Interrogatory to the extent it seeks information that is not relevant to the subject matter of this litigation and is not reasonably calculated to lead to the discovery of admissible evidence. Lorillard objects to this Interrogatory because it is premature to the extent it seeks information on subjects co o\ UV -~ cc . (~ GEN 460268
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_6_ upon which Defendants' damages experts will testify. Defendants' will name their damages experts and provide expert reports as required by the Court's. September 9, 1998 Final Pretrial Schedule and Trial Setting. Subject to and without waiving these or the General Objections stated above, and pursuant to Rule 33(d) of the Federal Rules of Civil Procedure, Lorillard states that it has produced into the Minnesota Depository documents which may provide information responsive to this Interrogatory in response to Request Nos. 4, 24 and 25, among others, of Plaintiffs' First Set of Requests for Production of Documents in State of Minnesota, et al. v. Philip Morris Incorporated, et al. Furthermore, many of these same documents were produced to the Commonwealth of Puerto Rico's counsel in the Florida and Texas Medicaid Reimbursement Actions and, most recently, on June 3, 1998 in the Oklahoma action in response to Request No. 3 of Plaintiffs' Revised Requests to The American Tobacco Company, et al. Lorillard refers plaintiffs to those documents because the burden of deriving or ascertaining responsive information from those documents is substantially the same for plaintiffs as it is for Lorillard. INTERROGATORY NO. 2: Please state whether defendant (or any person/organization on behalf of or at the request of defendant or its counsel) has ever undertaken to design a model, methodology, approach or analysis to estimate, calculate, approximate, deterrnine or study the amount of any state funded, federally funded or privately funded health care costs that may be associated with, caused by, and/or attributable to smoking. If so, please describe in detail these undertakings. A fully responsive answer should include the name(s) of the person(s) / organization(s), the address of the person(s) / organization(s), the date(s) on which these undertakings took place, a description of the model, methodology, approach or analysis undertaken and the results of these undertakings (or in the event these undertakings were not carried out to completion, any preliminary results, the reason(s) why
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-9- Lorillard further states that all Lorillard documents responsive to discovery requests but withheld from production on the basis of privilege in State of Oklahoma, et al. v. R.J. Revnolds Tobacco Companv, et al. have been properly logged in that case. INTERROGATORY NO. 5: Please describe in detail any and all occasions where defendant has transferred the sole copy / copies of a smoking and health related document in its possession to defendant's subsidiary company ' parent company / sister company / affiliated company, past or present, and which defendant has not produced into the Minnesota document depository. A fully responsive description should be broken down by each transfer and include, without limitation, information identifying the documents transferred, information identifying the company to which defendant transferred the documents, the date on which the transfer occurred, the identity of the person(s) ordering / authorizing the transfer. the reason for the transfer, any documents discussing the transfer, and information stating the present whereabouts of the transfetred documents. RESPONSE: Lorillard objects to this Interrogatory because it is overly broad, unduIti- burdensome and overly expensive taking into account the needs of the case and the issues in controversy. Lorillard objects to this Interrogatory to the extent it seeks information for all time or for an unreasonably long period of time. Lorillard objects to this interrogatory to the extent it seeks information that is not relevant to the subject matter of this.litigation and is not reasonably calculated to lead to the discovery of admissible evidence. Lorillard also objects to this Interrogatory because it must speculate as to the exact meaning Plaintiffs place on the term "affiliated" and phrase "sister company" which are subject to varying interpretations and are therefore vague, confusing and ambiguous. Subject to and without waiving these or the General Objections stated above, Lorillard states that it is unaware of any instances as described in Interrogatory Number 5. GEN 460272
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OCT.34.1998 9:51AM ® N0. 2068 P, 25/29 Confidential Attorney Work Product Attorney-Client Privilege as the imposition of such requirements is inconsistent with the Federal Rules of Civil Procedure. Lorillard also objects to this Interrogatory to the extent it purports to require Lorillard to produce confidential, trade secret, proprietary, or highly competitively sensitive information that is subject to special legal protection without the entry af a proper order. Lorillard objects to plaintiffs' use of the phrase "gross and net revenues/profits" because it is subject to varying interpretations and, therefore, is vague and ambiguous. Lorillard further objects to this Interrogatory because it seeks information that is likely to be in, and more appropriately obtained from, plaintiffs' files. a. Gross and Ne R v n a sfPro fro tb~Cale of Lorillard C,i¢1are4t2a im the .j C. Subject to and without waiving these or the General Objections stated above and pursuant to Fed. R. Civ. Pro. 33(d), Lorillard states that it has produced into the Minnesota Depository documents which may provide information responsive to this Interrogatory. This information was provided in response to Request No. 17, among others, of plaintiffs' First Set of Requests for Production of Documents and Request No. 1, among others, of plaintiffs' Third Set of Requests for Production of Documents i e nr nmmnesora_ et ai- v, rnuTn iworns meomora €t-al. Lorillard refers plaintiffs to those documents because the burden of deriving or ascertaining responsive information from those documents is substantially the same for plaintiffs as it is for Lorillard. Lorillard further states that it does not maintain information on its net income on a jutisdiction by jurisdiction basis, and therefore it cannot provide data for net income derived from sales in Puerto Rico. Set forth below is a list of Lorillard's net income (defined as gross sales less manufacturing, advertising, and administrative costs, and taxes other than excise taxes) from 1959 020733&.01 - 23 -
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, &AjERY`" 7.`µ~ RECYCLEC PAC'ER MADE FROM 20% POS7 CONSUMER CON71: I ® ® S969t-295
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FILE No. 125 :0i30 '98 12:50 III=Ln_RILLPRD L£GRL 'JtFTI ! VRAEICATI®N STATE OF NORTH CAROLINA ) ) ss. ) COUNTY OF GUILFORD I, VINCENT M. LOSTT®, am the Assistant Secretary and Assistant Treasurer of Lorillard Tobacco Company, a Defendant in this action. I bave read the foregoiug Lorillard Tobacco Company's Responses to The Commonwealth of.Puerto Rico's September 21, 1998 Set of Interrogatories, know the contents thereof, and am informed and believe that the Responses are true and eotrect. vit M. Losito Assistant Secretary and Assistant Treasurer Lorillard Tobacco Company Subscribed and sworn to before me, a notary public, this C-ih day of October, 1998. ~ . s otary Public ~ OFFICIAL SEAL NOTARY PIlSLIC•NCATN CAROLINA COUNTY OF 4itiLFORD JEAN M. PRICE f1y Commialce Erplres Wa• 36,2003 PAGE 2 GEN 460273
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9 Vicente Santori-Coll Law Offices Hato Rey Plaza, Suite 2 200 Jesus T. Pinero Avenue Hato Rey, PR 00918 Steve Klugman Harry Zirlin Debevoise & Plimpton 875 Third Avenue New York, NY 10022 David Cohen Kirkpatrick & Lockhart 1500 Oliver Building Pittsburgh, PA 15222 Jamie Sifre-Rodriguez Sanchez Betances & Sifre Suite 500, Bolivia 33 Hato Rey, PR 00919 George Bordon Mike Sundermeyer Gerson Zweifach Williams & Connolly 725 Twelfth Street, N. W. Washington, D.C. 20005-5901 Ramon A. Bauza Higuera Bauza & Davila 63 Fortaleza Street Old San Juan, PR 00901 William Snipes Holly N. Weiss Michael A. Cooper Sullivan & Cromwell 125 Broad Street New York, NY 10004-2498 -12- Hector Reichard de Cardona, Esq. Reichard & Escalera PO Box 364148 San Juan, PR 00936-4148 Pedro Santa Sanchez, Esq. O'Neill & Borges , American Int'l Plaza, 8`" Floor 250 Munoz Rivera Ave. Hato Rey, PR 00918 Edgar Cartagena Santiago, Esq. Goldman Antonetti & Cordova PO Box 70364 San Juan, PR 00936-0364 Marie V. Santacroce, Esq. Kasowitz Benson Torres & Friedman, LLP 1301 Avenue of the Americas New York, NY 10019-6022 Juan A. Ramos Diaz, Esq. Juan A. Ramos Diaz Law Offices 359 de Diego Avenue, Suite 601 San Juan, PR 00909-1711 Salvador Antonetti, Esq. Fiddler Gonzalez & Rodriguez PO Box 363507 San Juan, PR 00936-3507 GEN 460275
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! ERVI~_,_ CE LIST I HEREBY CERTIFY that a true and exact copy of Lorillard Tobacco Corporation's Response to the Commonwealth of Puerto Rico's September 21, 1998 Set of Interrogatories will be served by mail on: Pedro J. Durand Deputy Attorney General for Litigation Department of Justice - P. 0. Box 9020912 San Juan, PR 00902-0192 Benjamin Acosta Law Offices of Benjamin Acosta, Jr. P. O. Box 9023518 San Juan, PR 00902-3518 Ronald Motley Ness, Motley, Loadholt, Richardson & Poole P. O. Box 1137 Charleston, SC 29402 Jack E. McClard Douglas W. Davis Maya M. Eckstein Hunton & Williams Riverfront Plaza 951 East Byrd Street Richmond, VA 23219-4074 Mark Cunha Andrew T. Frankel Kathleen Turland Simpson Thacher & Bartlett 425 Lexington Avenue New York, NY 10017-3954 Eric Tulla Rivera, Tulla & Ferrer 50 Quisqueya Street Hato Ray San Juan, PR 00917 Sam Mills Daniel F. Kolb Vincent T. Chang Davis Polk & Wardwell 450 Lexington Avenue New York, NY 10017 Robert F. McDermott, Jr., Jones, Day, Reavis & Pogue Metropolitan Square 1450 G Street, NW Washington, DC 20005 Manuel A. Guzman P. O. Box 193850 San Juan, PR 00919-3850 Peter Bellacosa Kirkland & Ellis 153 E. 53rd Street New York, NY 10022 Robert Gaffey Michael S. Chernis Jones, Day, Reavis & Pogue 599 Lexington Avenue New York, NY 10002 GEN 460274
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-2- assets and liabilities of Lorillard, Inc., including corporate records relating to the operations, were transferred to Lorillard Tobacco Company. At that time Lorillard, Inc. became a holding company and the parent corporation of Lorillard Tobacco Company. For purposes of convenience and continuity, answers to these Interrogatories by Lorillard Tobacco Company refer to the operations by it since December 29, 1989, and to the operations by Lorillard, Inc. or its predecessors, as appiicable, prior to December 29, 1989. In these responses, the term "Lorillard" refers to Lorillard Tobacco Company after December 29, 1989 and to Lorillard, Inc. or its predecessors, as applicable, prior to December 29, 1989. GENERAL OBJECTIONS A. Lorillard objects to these Interrogatories on the grounds that they are overly broad and unduly burdensome to the extent that they seek to impose on Lorillard the burden of engaging in a massive new and duplicative document review when a readily available and accessible source of information and documents exists. That source is the document depository in Minneapolis, Minnesota, known as the "Minnesota Depository;" which was established by Court Order dated June 15, 1995 in State of Minnesota (Humphrey) v. Philip Morris, et al., Case No. C 1-94-8565 (Ramsey Co. Minn.). To date, Lorillard has produced roughly 1.79 million pages of documents.into the Minnesota Depository. Lorillard will identify the Minnesota Request numbers in response to which Lorillard has produced documents into the Minnesota Depository in lieu of providing answers to certain of these Interrogatories because the burden of deriving or ascertaining those answers is substantially the same for plaintiff as it is for Lorillard. On March 28, 1998, in response to a motion filed by Lorillard, Philip Morris Incorporated, R.J. Reynolds Tobacco Company, Brown & Williamson Tobacco Corporation, The Council for Tobacco Research-U.S.A., Inc., and The Tobacco Institute, Inc. to, make public the non- privileged, non-highly confidential documents that their companies produced into the Minnesota Depository (with the exception of documents containing certain personnel and third party information), the Minnesota Court entered an Order Providing Public Access to the Minnesota Document Depository. Pursuant to terms of this Order, on or about April 13, 1998; the public was given access to all non-privileged documents contained in the Minnesota Depository, except for highly sensitive trade secret documents, and certain personnel and third party information. Furthermore, on February 27, 1998, Philip Morris Incorporated, R.J. Reynolds Tobacco Company, Brown & Williamson Tobacco Corporation and Lorillard Tobacco Company posted on the Internet the first installment of the documents which they agreed would be made public in recent congressional testimony. This initial installment includes the vast majority of those documents of the foregoing companies selected from the Minnesota Depository by the Minnesota Attorney General in the Minnesota Litigation and an index to those documents. The index includes information regarding the Minnesota Litigation document requests to which the documents are
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responsive, and is searchable using this criterion. Documents containing highly confidential information, certain personnel and third party information and documents protected from discovery by the attomey-client privilege and the work product doctrine will not be included either on the website or the index. In addition, certain oversized documents, videotapes, and other non-standard media are fully indexed on the Internet site, but are not available in image form. Subject to these limitations, additional documents produced in the Minnesota Litigation will be posted to the website in installments as quickly as possible. The websites of Lorillard and the other companies are available through www.tobaccoresolution.com. B. Lorillard objects to these Interrogatories on the grounds that the Commonwealth of Puerto Rico already has possession of or access to a substantial volume of Lorillard's documents and other materials, many of which include information sought by these interrogatories, by virtue of the fact that plaintiff is represented by Ness, Motley, Loadholt, Richardson & Poole ("Ness Motley"). Ness Motley has documents produced by Lorillard in the following cases, among others: (1) tate of Florida, et al. v. The American Tobacco Compan ., Case No. 95-1466A0 (Fla. Cir. Ct.); (2) Castano v. The American Tobacco Company, et al., Civil Action No. 94=1-44c/w94- 3000(E.D.La.): (3) In re Mike Moo're. Attorney General Ex. Rel., State of Mississippi Tobacco Litigation, Case No. 94-1429 (Miss. Ch. Ct.); (4) Butler et al. v. R_.J~._Reynolds Tobacco Co.. et al., No. 94-5-53 (Miss. Cir. Ct.); (5) Barnes v. R.J.Reynolds Tobacco Co.. etal., No. 84-56 (N.J. Super.); (6) Haines v. Liggett Group Inc.. et al., No. 84-678-SA (D.N.J.); (7) State of Oklahoma. et al. v. R.J. Revnolds Tobacco Co.. et al., CJ-96-1499-L (Cleveland County, Okla.); (8) State of Texas v. The American Tobacco Company. et al., Civil No. 5:96-CV-0091; and (9) State of Minnesota v. Philin Morris. et al., Case No. C1-94-8565 (Ramsey Co. Minn.). C. Lorillard objects to the "Instructions" and the "DeÂŁnitions" to the Interrogatories to the extent they attempt to impose obligations on Lorillard Tobacco Company other than those imposed or authorized by the Federal Rules of Civil Procedure and to the extent they attempt to alter the plain meaning of the words used in the Interrogatories. D. Lorillard objects to the "Instmctions" to the extent they purport to impemiissibly limit Lorillard Tobacco Company's right to claim that information is protected from discovery by the attomey-client privilege, the work product doctrine, the joint defense privilege or common interest privilege, and/or any other applicable privileges or exemptions. E. Lorillard objects to these Interrogatories to the extent they seek confidential, trade secret, proprietary, or highly competitively sensitive information which is subject to special legal protection without the entry of an appropriate protective order and the implementation of procedures to ensure the continued confidentiality of such documents or information. GEN 460266
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0 9. Defendants' First Request for Production of Documents does not state with the ' required degree of specificity and particularity what documents / data are being sought. As such, the requests are vague, indefinite, ambiguous and not susceptible to easily discernible meaning. 10. Defendants' First Request forProduction ofDocuments seeks documents / data which are inapplicable to or non-existent in the Commonwealth or that are not in the possession, custody or control of the Commonwealth. 11. Defendants' First Request for Production of Documents seeks documents / data that are proprietary to third parties with whom the Commonwealth has contracted for various services. These documents / data are thus either proprietary or not within the possession, custody or control of the Commonwealth. In complying with defendants' requests for otherwise discoverable. documents / data, the Commonwealth will not violate the property rights of such third parties. 12. Defendants' First Request for Production of Documents seeks documents / data reflecting summaries and compilations of data or the identification or segregation of specific documents / data that are in the possession, custody or control of third parties with whom the Commonwealth has contracted for various services. In complying with defendants' requests for otherwise discoverable documents / data, the Commonwealth will not engage such third parties to conduct or prepare compilations, summaries, identifications or segregations of documents / data. without adequate and acceptable arrangements to compensate such third parties for the work that defendants' request. 13. Defendants'FirstRequestforProductionofDocumentsimproperlyseeksdocuments / data that is already in the possession of defendants, is obtainable from another source that is more convenient, less burdensome or less expensive, or is as accessible to defendants as it is to the Commonwealth. As such, the burden of obtaining the sought-after information is substantially the 3 GEN 461458
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OCT.30.1998 9:51AM ~ N0.2068 P.28/29 Confidential Attorney Work Product Attorney-Client Privilege therefore has no method oftracking retail sales to persons under the age of 18. As a result, Lorillard cannot "state the gross and aet revenues/profits from the sale of [Lorillard's] cigarettes . . . to individuals under the age of 18 in the United States." Lorillard also states that its policy is to market only to individuals who are of legal age to purchase cigarettes, d. Gross RevenLes/Profits from Sales to IndlvidLaAe Tlnder the Age of 18 in_ Puerto Rico_ Subject to and without waiving these or the General Objections set forth above, Lorillard states that is sells cigarettes to distributors, not to individuals in the Commonwealth of Puerto Rico and that it, therefore, has no method of tracking the retail sales of its cigarettes in Puerto Rico to individuals under the age of 18. As a result, Lorillard cannot "state the gross and net revenues/profits ffomm the sale of [Loriilatd's] cigarettes ... to individuals under the age of 18 in Puerto Rico:' Finally, Lorillard states that its policy is to market its cigarettes only to individuals who are of legal age to purchase cigarettes. INTRRRnC ATnRY NO. 5: For each individual year since 1954, setting forth with specificity the source(s) of the information relied upon, please state the gross and net revenues/profits from the sale of defendant's cigarettes in the United States, in Puerto Rico, to individuals under the age of 1 S in the Ylnited States, and to individuals under the age of 18 in Puerto Rico as a percentage of the total gross and ®et.revenues/profits from the sale of cigarettes in the United States, In Puerto Rico, to individuals under the age of 18 in the United States, and to individuals under the age of 18 in Puerto Rico, respectively. ANSWER: Lorillard objects to this interrogatory as overly broad and unduly 03 (31% up to and including burdensome to the extent it seeks information for an unduly long period of time `A , -~ the present. Lorillard states that it does not make retail sales of its cigarettes and, therefore, co \4~ t,ra. 0207338.01 -26- 01)
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These above-stated objections are continuing as to each Request for Production. They are incorporated in response to'each Request for Production, whether or not specifically stated, and are not waived nor in any way limited by any request-specific objections and responses. Searches for and productions of responsive documents to these Requests for Production will be made subject to and will be limited by these above-stated objections. The Commonwealth's responses are based upon information presently known to the Commonwealth and its counsel. The Commonwealth reserves all rights to supplement and amend its responses or objections at any time. A. Operational/Structural Characteristics ofEach Commonwealth Program REOUEST FORPRODUCTIONNO. 1: For the entire Damages Period, produce all organizational charts and related organizational descriptions for each entity with oversight or operational responsibility for any healthcare, insurance, or other Commonwealth Program for which the Commonwealth seeks damages in this case, and all organizational charts and related. organizational descriptions for the Commonwealth's Medicaid Fraud Control Unit. OBJECTIONS AND RESPONSE TO REQYUEST FOR PRODUCTION NO. 1: Subject to and without waiver of its above-stated objections, the Commonwealth will search for and, to extent they exist, produce for inspection relevant available documents relating to the operational / structural , characteristics of each Commonwealth program forwhichthe Commonwealth seeks damages in this case that may be responsive to this request. The Commonwealth refers Defendants to documents produced in the Commonwealth's July 23, 1998 Voluntary Predisclosure. REOUEST FOR PRODUCTION NO. 2: Produce all annual reports of all Commonwealth Programs, as well as any other summary documents describing the Commonwealth Programs generally or the funding or health care costs of Commonwealth Programs. 5 GEN 461450
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® same, or less, for defendants as it is for the Commonwealth. 14. Defendants'FirstRequestforProductionofDocumentsareunreasonablycumulative and duplicative. 15. The Set of Definitions and Instructions to Defendant's First Set of Interrogatories improperly attempts to impose obligations on the Commonwealth other than those imposed or authorized by federal or Puerto Rico law. 16. The Set of Definitions and Instructions to Defendant's First Set of Interrogatories improperly attempts to alter the plain meaning of certain words. 17. Defendants'FirstRequestforProductionofDocumentsimproperlyseeksdocuments / data that may be used by defendants to contend that they entitled to an impermissible offset oftheir liability by the amount of excise or other taxes collected upon the sale of tobacco or the amount of revenues, payments and other alleged "benefits" to the Commonwealth from the sale of cigarettes and the treatment of cigarette-related disease. 18. Defendants' First Request for Production of Documents improperly seeks the premature disclosure of expert opinions, reports and reliance materials, as well as the disclosure of documents / data in violation of the Federal Rules of Civil Procedure. 19. Defendant'sFirstRequestforProductionofDocumentsimproperlyseeksinformation involving an opinion, the application of law to facts or legal opinions. 20. Defendants' First Request for Production of Documents improperly defines "damages," "health care costs," and the "Commonwealth" in manners that are overly broad, vague and ambiguous. 21. Defendants' First Request for Production of Documents seeks information already cO ~ provided to defendants through the Commonwealth's voluntary predisclosure of documents. -t~ C.c \C. 4 GBIQ 461459
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® employed by the Commonwealth during the Damages Period. OBJECTIONS AND RESPONSE TO REOUEST FOR PRODUCTION NO. 9: Subject to and without waiver of its above-stated objections, the Commonwealth will search for and, to extent they exist, produce for inspection relevant available documents relating to the operational / structural characteristics of each Commonwealth program forwhich the Commonwealth seeks damages in this case that may be responsive to this request. The Commonwealth refers Defendants to documents produced in the Commonwealth's July 23, 1998 Voluntary Predisciosure. C. Electronic Claims Data, Related Documentation, and Integrity Analysis ofSuch Claims REOUEST FOR PRODUCTIONNO.10: Produce all data from the Commonwealth's Medicaid Management Information System ("MMIS") and the Medicaid Statistical Information System ("MSIS") concerning claims history, recipient history, non-claim specific adjustments, eligibility, claims processing assessment, and (concerning patients with managed care) encounter data, for all years available (including all archived information). OBJECTIONS AND RESPONSE TO REQUEST FOR PRODUCTION NO. 10: Subject to and without waiver of its above-stated obj ections, the Commonwealth will search for and, to extent they exist, produce for inspection relevant available documents relating to the operational / structural characteristics of each Commonwealth program forwhichthe Commonwealth seeks damages in this case that may be responsive to this request. The Commonwealth refers Defendants to documents produced in the Commonwealth's July 23, 1998 Voluntary Predisolosure. REOUEST FOR PRODUCTION NO.11: Produce all materials necessary to allow the Defendants to analyze the MMIS and MSIS electronic data, including related computer software, program documentation, systems flow charts, related user and technical manuals, data dictionaries, and data 9 GEN 461464
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OBJECTIONS AND RESPONSE TO REQUEST FOR PRODUCTION NO 2• Subject to ar.d without waiver of its above-stated objections, the Commonwealth will search for and, to extent they exist, produce for inspection relevant available documents relating to the operational / structural characteristics ofeach Commonwealth program forwhichthe Commonwealth seeks damages in this case that may be responsive to this request. The Commonwealth refers Defendants to documents produced in the Commonwealth's July 23, 1998 Voluntary Predisclosure. REOUESTFORPRODUCTIONNO.3: Produce a complete copy of the Medicaid Commonwealth (or State) Plan, including all amendments, superseded portions, and all manuals relating thereto. OBJECTIONS AND RESPONSE TO REQUEST FOR PRODUCTION NO. 3: Subject to and without waiver of its above-stated objections, the Commonwealth will search for and, to extent they exist, produce for inspection relevant available documents relating to the operational / structural characteristics of each Cotnmonwealthprogram forwhich the Commonwealth seeks damages in this case that may be responsive to this request. The Commonwealth refers Defendants to documents produced in the Commonwealth's July 23, 1998 Voluntary Predisciosure. REOUEST FOR PRODUCTION NO. 4: Produce all Health Care Financing Administration (`HCFA") form 64, form 37, and form 2082 periodic reports or data compilations that the Commonwealth's Medicaid Program has sent to HCFA for each year the Commonwealth claims Damages. OBJECTIONS AND RESPONSE TO REQUEST FOR PRODUCTION NO. 4: Subject to and without waiver of its above-stated objections, the Commonwealth will search for and, to extent they exist, produce for inspection relevant available documents relating to the operational / structural characteristics of each Commonwealth program for which the Commonwealth seeks damages in this 6 GEN 461461
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e Commonwealth's July 23, 1998 Voluntary Predisclosure. REQUEST FOR PRODUCTION NO. 22: Produce all documents concerning any model the Commonwealth intends to use to attempt to prove (a) the Commonwealth's reliance on actions or statements of defendants, (b) a causal nexus between defendants' alleged misconduct and the Commonwealth's purported Damages, and/or (c) the amount of the Commonwealth's Damages, including but not limited all data sets, formulas, computer programs (and instructions on how to use them), and sensitivity analyses or tests of the validity, reliability or statistical significance of the numbers produced using the model. OBJECTIONS AND RESPONSE TO REQUEST FOR PRODUCTION NO. 22: Subject to and without waiver of its above-stated objections, the Commonwealth will search for and, to extent they exist, produce for inspection relevant, available, pre-existing documents related to health care costs attributable to tobacco use that may be responsive to this request. To the extent this request seeks disclosures, opinions, reports and reliance materials regarding the Commonwealth's damage calculations and damage calculation methodologies prepared by non-testifying experts retained or specially employed by the Commonwealth in anticipation of litigation or in preparation of trial, this information is protected by the attomey-client privilege and the work product doctrine. Disclosures, opinions, reports and reliance materials regarding the Commonwealth's damage calculations and damage calculation methodologies prepared by experts who are expected to be called to testify at trial is presently premature. The Commonwealth refers Defendants to documents produced in the Commonwealth's July 23, 1998 Voluntary Predisclosure. RE UESTFORPRODUCTIONNO.23: Produce all reports, findings, studies, analyses, models, summaries or compilations concerning health care costs associated or allegedly associated with Tobacco Consumption, including but not limited to all documents prepared by, for, or at the 16 GE13 461491
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direction of, the Commonwealth, any Commonwealth subdivision or any State.representative. OBJECTIONS AND RESPONSE TO REOUEST FOR PRODUCTION NO. 23 • Subject to and without waiver of its above-stated objections, the Commonwealth will search for and, to extent they exist, produce for inspection relevant, available, pre-existing documents related to health care costs attributable to tobacco use that may be responsive to this request. To the extent this request seeks disclosures, opinions, reports and reliance materials regarding the Commonwealth's damage calculations and damage calculation methodologies prepared by non-testifying experts retained or specially employed by the Commonwealth in anticipation of litigation or in preparation of trial, this information is protected by the attomey-client privilege and the work product doctrine. Disclosures, opinions, reports and reliance materials regarding the Commonwealth's damage calculations and damage calculation methodologies prepared by experts who are expected to be called to testify at trial is presently premature. The Comnionwealth refers Defendants to documents produced in the Commonwealth's July 23, 1998 Voluntary Predisclosure. E. Effectiveness of Smoking Cessation and YYeldness Programs within Each Commonwealth Program REQUEST FOR PRODUCTION NO. 24: Produce all documents which reflect or analyze the services offered or the cost effectiveness of any type of smoking cessation programs or other related wellness programs potentially or actually offered to Recipients of any Commonwealth Program. OBJECTIONS AND RESPONSE TO REOUEST FOR PRODUCTION NO. 24: Subj ect to and without waiver of its above-stated objections, the Commonwealth will search for and, to extent they exist, produce for inspection relevant available documents relating to smoking cessation and wellness programs for each Commonwealth program for which the Commonwealth seeks damages in this case that may be responsive to this request. The Commonwealth refers Defendants to 17 GEN 461412
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case that may be responsive to this request. The Commonwealth refers Defendants to documents produced in the Commonwealth's July 23, 1998 Voluntary Predisclosure. REOUEST FOR PRODUCTION NO. 5: For the Damages Period, produce all annual budget requests made by any agency or division with oversight or operational responsibility for any Commonwealth Program or any portion thereof. OBJECTIONS AND RESPONSE TO REOUEST FOR PRODUCTION NO. 5: Subject to and without waiver of its above-stated objections, the Commonwealth will search for and, to extent they exist, produce for inspection relevant available documents relating to the operational / structural characteristics of each Co mmonwealth pro gram forwhich the Commonwealth seeks damages in this case that may be responsive to this request. The Commonwealth refers Defendants to documents produced in the Commomvealth's July 23, 1998 Voluntary Predisclosure. REOUEST FOR PRODUCTION NO. 6: Produce a complete copy of any waiver requests filed by the Commonwealth with HCFA regarding any type ofproposed change to the Medicaid Program, any evaluation of such waivers, all reports of estimated or actual savings with respect to such waivers. OBJECTIONS AND RESPONSE TO REQUEST FOR PRODUCTION NO. 6: Subject to and without waiver of its above-stated objections, the Commonwealth will search for and, to extent they exist, produce for inspection relevant available documents relating to the operational / structural characteristics ofeach Commonwealth program forwhich the Commonwealth seeks damages inthis case thatrriay be responsive to this request. The Commonwealth refers Defendants to documents produced in the Commonwealth's July 23, 1998 Voluntary Predisclosure. B. Documents (or Databases) Stndying/Analyz=ng/Auditing Each Commonwealth Program 7 Gg13 461462
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® OBJECTIONS AND RESPONSE TO REQUEST FOR PRODUCTION NO. 13: Subject to and without waiver of its above-stated objections, the Commonwealth will search for and, to extent they exist, produce for inspection relevant available documents relating to the operational / structural characteristics of each Commonwealth program for which the Commonwealth seeks damages in this case that may be responsive to this request. The Commonwealth refers Defendants to documents produced in the Commonwealth's July 23, 1998 Voluntary Predisclosure. REOUEST FOR PRODUCTION NO. 14: Produce all documents concerning the integrity or reliability of, or actual or asserted concerns, problems or issues relating to the integrity or reliability of, (1) the MMIS or other diagnostic procedure, outcome, utilization or claims data concerning health care recipients of any of the Commonwealth Programs, or (2) the databases, operating systems, management systems or information systems utilized in any Commonwealth Program, including but not limited to such systems for paying, recording, accounting for payment of, estimating or projecting health care costs. , OBJECTIONS AND RESPONSE TO REOUEST FOR PRODUCTION NO. 14: Subject to and without waiver of its above-stated objections, the Commonwealth will search for and, to extent they exist, produce for inspection relevant available documents relating to the operational / structural characteristicsofeachCommonwealthprogramforwhichtheCommonwealthseeksdamagesinthis . case that may be responsive to this request. The Commonwealth refers Defendants to documents produced in the Commonwealth's July 23, 1998 Voluntary Predisclosure. REOUEST FOR PRODUCTION NO. 15: Produce all databases, including the Minimum Data Set and Case Mix databases, that relate to long term care facilities, intermediate care facilities, to ~ skilled nursing facilities, or nursing homes, including computer software, program documentation, 4- system flow charts, related user and technical manuals, data dictionaries and data layouts for those =I ~ 11 ~ GEN 461466
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0 REQUEST FOR PRODUCTION NO. 7: Produce all prepared statements or transcripts of testimony by any representative of an entity responsible for any Commonwealth Program before any legislative body or federal agency that discuss [sic] any Commonwealth Program. OBJECTIONS AND RESPONSE TO REQUEST FOR PRODUCTION NO. 7: Subject to and without waiver of its above-stated objections, the Commonwealth will search for and, to extent they exist, produce for inspection relevant available documents relating to the operational / structural characteristics of each Commonwealth program forwhichthe Commonwealth seeks damages in this case that may be responsive to this request. The Commonwealth refers Defendants to documents produced in the Commonwealth's July 23, 1998 Voluntary Predisclosure. REQUEST FOR PRODUCTION NO. 8: Produce all minutes of meetings of all entities with oversight responsibility for the Medicaid Program, including Advisory Committees, and all agenda packets and attachments distributed at or before such meetings. OBJECTIONS AND RESPONSE TO REQUEST FOR PRODUCTION NO. 8: Subject to and without waiver of its above-stated objections, the Commonwealth will search for and, to extent they exist, produce for inspection relevant available documents relating to the operational / structural characteristics of each Commonwealth program for which the Commonwealth seeks damages in this case that may be responsive to this request. The Commonwealth refers Defendants to documents produced in the Commonwealth's July 23, 1998 Voluntary Predisalosure. REOUEST FOR PRODUCTION NO. 9: Produce all oversight reports, reviews, audits, studies regarding any Commonwealth Program, including but not limited to reports prepared by legislative committees or oversight entities, special task forces, state agencies, research entities, consultants, state comptrollers, or state or federal auditors, and any other performance reviews which critique or analyze the performance of the Commonwealth Programs or the performance of any fiscal agent 8 GEN 461463
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! epidemiological, or other model that purports to calculate or estimate medical or health casr costs that are attributable to Tobacco Consumption, incurred nationally, in the Commonwealth, or by any Commonwealth Program. OBJECTIONS AND RESPONSE TO REOUEST FOR PRODUCTION NO. 19: Subj ect to and without waiver of its above-stated objections, the Commonwealth will search for and, to extent they exist, produce for inspection relevant, available, pre-existing documents related to health care costs attributable to tobacco use that may be responsive to this request. To the extent this request seeks disclosures, opinions, reports and reliance materials regarding the Commonwealth's damage calculations and damage calculation methodologies prepared by non-testifying experts retained or specially employed by the Commonwealth in anticipation of litigation or in preparation of trial, this information is protected by the attocney-client privilege and the work product doctrine. Disclosures, opinions, reports and reliance materials regarding the Commonwealth's damage calculations and damage calculation methodologies prepared by experts who are expected to be called to testify at trial is presently premature. The Commonwealth refers Defendants to documents produced in the Commonwealth's July 23, 1998 Voluntary Predisclosure. REOUEST FOR PRODUCTIONNO. 20: Produce all documents that refer to any measurement, estimate, or comparison ofthetotal lifetime health care costs that the Conimonwealth pays on behalf of individuals who are current consumers of Tobacco, former consumers of Tobacco, or who have never consumed Tobacco. OBJECTIONS AND RESPONSE TO REOUEST FOR PRODUCTION NO. 20: Subject to and without waiver of its above-stated objections, the Commonwealth will search for and, to extent they exist, produce for inspection relevant, available, pre-existing documents related to health care costs attributable to tobacco use that may be responsive to this request. To the extent this request seeks 14 GEN 461469
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without waiver of its above-stated objections, the Commonwealth will search for and, to extent they exist, produce for inspection relevant available documents relating to Commonwealth demographic and smoking prevalence data that may be responsive to this request. The Commonwealth refers Defendants to documents produced in the Commonwealth's July 23, 1998 Voluntary Piedisclosure. REOUESTFORPRODUCTIONNO.30: Produceallmaterialsnecessary to allow the Defedants to analyze the Commonwealth's B ehavioral Risk Factors Surveillance System ("BRFSS") electronic data, including the data itself, computer software, program documentation, system flow charts, user and technical manuals, data dictionaries, and data layouts. OBJECTIONS AND RESPONSE TO REOUEST FOR PRODUCTION NO. 30: Subject to and without waiver of its above-stated objections, the Commonwealth will search for and, to extent they exist, produce for inspection relevant available documents relating to Commonwealth demographic and smoking prevalence data that may be responsive to this request. The Commonwealth refers Defendants to documents produced in the Commonwealth's July 23, 1998 VoluntaryPredisclosure. REOUEST FOR PRODUCTION NO. 31: Produce all documents that discuss or refer to any analysis of potential claims by the Commonwealth against, or any analysis of health care costs attributable to, manufacturers of products other than Tobacco, that are associated with a risk of disease or injury. OBJECTIONS AND RESPONSE TO REQUEST FOR PRODUCTION NO. 31: Subj ect to and without waiver of its above-stated objections, the Commonwealth will search for and, to extent they exist, produce for inspection relevant available documents, excluding software, relating to Commonwealth demographic and smoking prevalence data, but not software, that maybe responsive to this request. The Commonwealth refers Defendants to documents produced in the Commonwealth's July 23, 1998 Voluntary Predisclosure. 20 GEN 461475
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J ® OBJECTIONS AND RESPONSE TO REOUEST FOR PRODUCTION NO: 35: Subject to and without waiver of its above-stated objections, the Commonwealth will search for and, to extent they exist, produce for inspection relevant available documents relating to fraud, waste, abuse and cost containment within each Commonwealth program for each Commonwealth program for which the Commonwealth seeks damages in this case that may be responsive to this request. The Commonwealth refers Defendants to documents produced in the Commonwealth's July 23, 1998 Voluntary Predisclosure. REOUEST FOR PRODUCTION NO. 36: Produce all summary and/or annual analyses or reports concerning cost containment efforts or other activities or proposals to limit or control past, current or anticipated costs for any of the Commonwealth Proa ams. OBJECTIONS AND RESPONSE TO REOUEST FOR PRODUCTION NO. 36: Subject to and without waiver of its above-stated obj ections, the Commonwealth will search for and, to extent they exist, produce for inspection relevant available documents relating to fraud, waste, abuse and cost containment within each Commonwealth program for each Commonwealth ptogram for which the Commonwealth seeks damages in this case that may be responsive to this request. The Commonwealth refers Defendants to documents produced in the Commonwealth's July 23, 1998 Voluntary Predisclosure. REOUEST FOR PRODUCTION NO. 37: For each year of the Damages Period, produce all cost report audit procedures with respect to the Medicaid or Medicare Programs; all summary reports showing the type and frequency of the cost report audits, the percentage of providers for each class of providers that are audited, and the results of such audits; and all contracts with Medicare intermediaries or any contractor or third party relating to audits of cost reports of Medicaid providers. (The actual audits of provider cost reports are not requested.) 23 GEN 461478
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disclosures, opinions, reports and reliance materials regarding the Commonwealth's damage calculations and damage calculation methodologies prepared by non-testifying experts retained or specially employed by the Commonwealth in anticipation of litigation or in preparation of trial, this information is protected by the attomey-client privilege and the work product doctrine. Disclosures, opinions, reports and reliance materials regarding the Commonwealth's damage calculations and damage calculation methodologies prepared by experts who are expected to be called to testify at trial is presently premature. The Commonwealth refers Defendants to documents produced in the Commonwealth's July 23; 1998 Voluntary Predisclosure. REQUEST FOR PRODUCTION NO. 21: For each health care, insurance, or other for which the Commonwealth seeks Damages, produce documents sufficient to demonstrate the inclusive dates for which the Commonwealth seeks Damages, the dollar amount ofthe Damages claimed (by year), and the computations upon which the calculation was based. OBJECTIONS AND RESPONSE TO REQUEST FOR PRODUCTION NO. 21: Subject to and without waiver of its above-stated objections, the Commonwealth will search for and, to extent they exist, produce for inspection relevant, available, pre-existing documents related to health care costs attributable to tobacco use that may be responsive to this request. To the extent this request seeks disclosures, opinions, reports and reliance materials regarding the Commonwealth's damage calculations and damage calculation methodologies prepared by non-testifying experts retained or specially employedby the Commonwealth in anticipation of litigation or in preparation of trial, this information is protected by the attorney-client privilege and the work product doctrine. Disclosures, opinions, reports and reliance materials regarding the Commonwealth's damage calculations and damage calculation methodologies prepared by experts who are expected to be called to testify at trial is presently premature. The Commonwealth refers Defendants to documents produced in the 15 GEN 461470
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REOUEST FOR PRODUCTION NO. 27: Produce all documents summarizing or analyzing actuarial and/or demographic data (such as age, race, ethnicity, sex, mortality or morbidity rates, alcohol consumption, exercise habits, Tobacco Consumption status, other lifestyle factors, vital statistics information, or aggregate health care data) of Commonwealth residents or any subset of Commonwealth residents, including those eligible to receive health care funded or provided by any of the Commonwealth Programs. OBJECTIONS AA'D RESPONSE TO REOUEST FOR PRODUCTION NO. 27: Subject to and without waiver of its above-stated objections, the Commonwealth will search for and, to extent they exist, produce for inspection relevant available documents relating to Commonwealth demographic and smoking prevalence data that may be responsive to this request. The Commonwealth refers Defendants to documents produced in the Commonwealth's July 23, 1998 Voluntary Predisclosure. REOUEST FOR PRODUCTION NO. 28: Produce all documents or data referring to, or used in, efforts to analyze or quantify, the smoking prevalence rate of the state population, or any subsets thereof, such as the Tobacco Use Survey ("TUS"). OBJECTIONS AND RESPONSE TO REOUEST FOR PRODUCTION NO. 28: Subj ect to and without waiver of its above-stated objections, the Commonwealth will search for and, to extent they exist, produce for inspection relevant available documents relating to Commonwealth demographic _ and smoking prevalence data that may be responsive to this request. The Commonwealth refers Defendants to documentsproduced in the Commonwealth's July 23, 1998 Voluntary Predisclosure. REQUESTFORPRODUCTIONN0.29: Produce all Current Population Surveys which identify those eligible to receive benefits from the Commonwealth Programs and their demographic CO ~ W characteristics. -~_ oO OBJECTIONS AND RESPONSE TO REQUEST FOR PRODUCTION NO. 29: Subject to and ~10 a 19 GEN 461474
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• OBJECTIONS AND RESPONSE TO REQUEST FOR PRODUCTION NO. 37: Subject to and without waiver of its above-stated objections, the Commonwealth will search for and, to extent they exist, produce for inspection relevant available documents relating to fraud, waste, abuse and cost containment within each Commonwealth program for each Commonwealth program for which the Commonwealth seeks damages in this case that may be responsive to this request. The Commonwealth refers Defendants to documents produced in the Commonwealth's July 23, 1998 Voluntary Predisclosure. REOUEST FOR PRODUCTION NO. 38: For each year of the Damages Period, produce all utilization review procedures for the Medicaid Program and all summary reports showing the nature and frequency of the review, the percentage of cases reviewed for each provider group, and summaries of the results from such review, including the recoveries obtained and the sanctions imposed. OBJECTIONS AND RESPONSE TO REQUEST FOR PRODUCTION NO. 38: Subject to and without waiver ofits above-stated objections, the Commonwealth will search for and, to extent they exist, produce for inspection relevant available documents relating to fraud, waste, abuse and cost containment within each Commonwealth program for each Commonwealth program for which the Commonwealth seeks damages in this case that may be responsive to this request. The - Commonwealth refers Defendants to documents produced in the Commonwealth's July 23, 1998 Voluntary Predisclosure. H. Third Party Liability REQUEST FOR PRODUCTION NO. 39: Produce all reports or studies by the Commonwealth or Federal government evaluating the effectiveness of the Commonwealth's efforts to identify and collect costs incurred by its Medicaid Program or any other Commonwealth Program from Third 24 GEN 461479
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layouts for the MMIS and MSIS. OBJECTIONS AND RESPONSE TO REQUEST FOR PRODUCTION NO. 11: Subject to and without waiver ofits above-stated objections, the Commonwealth will search for and, to extent they exist, produce for inspection relevant available documents relating to the operational / structural characteristics of each Commonwealth program for which the Commonwealth seeks damages in this case that may be responsive to this request. The Commonwealth refers Defendants to documents produced in the Commonwealth's July 23, 1998 Voluntary Predisclosure. REOUESTFORPRODUCTIONNO.12: Produce documents sufficient to identify all claims data sets maintained by the Commonwealth during the Damages Period, including data sets relating to disease costs, disease prevalence, the Medicaid population, smoking prevalence, and other types of health care expenditures. OBJECTIONS AND RESPONSE TO REDUEST FOR PRODUCTION NO. 12: Subject to and without waiver of its above-stated objections, the Commonwealth will search for and, to extent they exist, produce for inspection relevant available documents relating to the operational / structural characteristics of each Commonwealth program forwhichthe Commonwealth seeks damages in this case that may be responsive to this request. The Commonwealth refers Defendants to documents produced in the Commonwealth's July 23, 1998 Voluntary Predisclosure. REOUEST FOR PRODUCTION NO. 13: Produce all documents that discuss, comment on, or analyze the overpayment of Medicaid funds due to problems with or errors in the MMIS system, otherclaims processing or eligibility systems used in connectionwith the Commonwealth Programs, or the data contained therein, and all documents that discuss, comment on, or analyze the reconciliation or correction of, or the failure or inability to reconcile or correct, all such problems and errors. 10 GEN 461465
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(e) all documents which reflect how premiums were determined, including actuarial reports, and the information provided to determine such premiums, including any demographic information and loss experience; (f) all documents which reflect fraud detection and prevention procedures and Documents which summarize the amount of fraud recoveries; and (g) audits of the fiscal agent or claims processing system. OBJECTIONS AND RESPONSE TO REOUEST FOR PRODUCTION NO. 47: Subject to and without waiver of its above-stated objections, the Commonwealth will search for and, to the extent they exist, produce for inspectionrelevant available documents relating to Commonwealth employee health plans for which the Commonwealth seeks damages in this case that may be responsive to this request. TheCommonwealthrefersDefendantstodocumentsproducedintheCommonwealth's7uIy 23, 1998 Voluntary Predisclosure. 30 GEN 461495
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! OBJECTIONS AND RESPONSE TO REQUEST FOR PRODUCTION NO. 17: Subject to and without waiver of its above-stated objections, the Commonwealth will search for and, to extent they exist, produce for inspection relevant available documents relating to the operational / structural characteristics of each Commonwealth program for which the Commonwealth seeks damages in this case that may be responsive to this request. The Commonwealth refers Defendants to documents produced in the Commonwealth's July 23, 1998 Voluntary Predisclosure. D. Damage Model(s) & Components REOUEST FOR PRODUCTION NO. 18: Produce all documents that refei to any study of the medical care utilization rates of current consumers of Tobacco, former consumers of Tobacco, and persons who have never been consumers of Tobacco. OBJECTIONS ?.1VD RESPONSE TO RE UEST FOR PRODUCTION NO. 18: Subject to and without waiver of its above-stated objections, the Commonwealth will search for and, to extent they exist, produce for inspection relevant, available, pre-existing docunients related to health care costs attributable to tobacco use that may be responsive to this request. To the extent this request seeks disclosures, opinions, reports and reliance materials regarding the Commonwealth's damage calculations and damage calculation methodologies prepared by non-testifying experts retained or specially employed by the Commonwealth in anticipation of litigation or in preparation of trial, this information is protected by the attorney-client privilege and the work product doctrine. Disclosures, opinions, reports and reliance materials regarding the Commonwealth's damage calculations and damage calculation methodologies prepared by experts who are expected to be called to testify at trial is presently premature. The Commonwealth refers Defendants to documents produced in the Commonwealth's July 23, 1998 Voluntary Predisclosure. REQUEST FOR PRODUCTION NO. 19: Produce all documents that refer to any statistical, 13 C.O a ~ Co ~ a ~ GEN 461463
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0 databases. OBJECTIONS AND RESPONSE TO REQUEST FOR PRODUCTION NO. 15: Subject to and without waiver of its above-stated objections, the Commonwealth will search for and, to extent they exist, produce for inspection relevant available documents relating to the operational / structural characteristics of each Commonwealth program for which the Commonwealth seeks damages in this case that may be responsive to this request. The Commonwealth refers Defendants to documents produced in the Commonwealth's July 23, 1998 Voluntary Predisclosure. REOUESTFORPRODUCTIOIvTNO.16: Produce all documents referring to potential future costs to be incurred by any Commonwealth Programs including any analyses or projections of future health care costs or increased health care costs created by any person or Commonwealth entity and produce all documents referring to any statistical methods or other techniques utilized by any Commonwealth Program to estimate or project future costs to be incurred by the Commonwealth Program. OBJECTIONS AND RESPONSE TO REQUEST FOR PRODUCTION NO. 16: Subj ect to and without waiver of its above-stated objections, the Commonwealth will search for and, to extent they exist, produce for inspection relevant available documents relating to the operational / structural characteristics ofeach Commonwealth program for which the Commonwealth seeks damages in this case that may be responsive to this request. The Commonwealth refers Defendants to documents produced in the Commonwealth's July 23, 1998 Voluntary Predisclosure. REQUEST FOR PRODUCTIONNO. 17: Produce all documents (including any regulations, rules, manuals, procedures, practices orpolicies) concerning anysampling orstatistical methodology CO 01~ used or required to be used by the Commonwealth, any State Program or any State Representative w 4~- ~ to analyze the State Program. 12 GEN 461467
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whom DSH payments are made. OBJECTIONS AND RESPONSE TO REQUEST FOR PRODUCTION NO 44: Subject to and without waiver of its above-stated objections, the Commonwealth will search for and, to extent they exist, produce for inspection relevant available documents relating to the financing of Commonwealth programs for each Commonwealth program for which the Commonwealth seeks damages in this case that may be responsive to this request. The Commonwealth refers Defendants to documents produced in the Commonwealth's July 23, 1998 Voluntary Predisclosure. REOUEST FOR PRODUCTION NO. 45: Produce all documents that refer to ways the Commonwealth increased or otherwise influenced the amount of federal financial contribution to any Commonwealth Program. OBJECTIONS AND RESPONSE TO REOUEST FOR PRODUCTION NO. 45: Subject to and without waiver of its above-stated objections, the Commonwealth will search for and, to extent they exist, produce for inspection relevant available documents relating to the financing of Commonwealth programs for each Commonwealth program for which the Commonwealth seeks damages in this case that may be responsive to this request. The Commonwealth refers Defendants to documents produced in the Commonwealth's July 23, 1998 Voluntary Predisclosure. J. Requests Regarding Other Commonwealth Programs Included in Damages Calculations REOUESTFORPRODUCTIONNO.46: TotheextentthattheCommonweaithismaldng a claim for "uncompensated health care" or "charity care," produce the following: (a) all annual financial statements for the hospital and any other entity included 0~1 in the Commonwealth's Damages claim; uQ -P-~ ~ aL) (b) all Medicare cost reports or other Documents showing the costs of 28 GEN 461483
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Party Resources ("TPR"), estimating the extent of TPR which the Commonwealth has not been recovering or otherwise summarizing (on an annual, quarterly, or periodic - basis) the Commonwealth's efforts to collect State Program costs from TPR. Produce documents sufficient to show annual amounts of TPR recoveries made by the Commonwealth. OBJECTIONS AND RESPONSE TO REOUEST FOR PRODUCTION NO. 39: Subject to and without waiver ofits above-stated objections, the Commonwealth will search for and, to extent they exist, produce for inspection relevant available documents relating to pursuit of and collection from liable third parties for each Commonwealth program for which the Commonwealth seeks damages in this case that may be responsive to this request. The Commonwealth refers Defendants to documents produced in the Commonwealth's July 23, 1998 Voluntary Predisclosure. REOUEST FOR PRODUCTION NO. 40: Produce examples of all documents provided or available to applicants for or recipients of benefits under the Commonwealth Programs relating to the Commonwealth's right to pursue any portion of Program costs of providing services from third parties, including examples of all forms executed by applicants assigning their rights ofrecovery or undertaking any duties, such as the duty to cooperate with the Commonwealth in actions against a third party. OBJECTIONS AND RESPONSE TO REQUEST FOR PRODUCTION NO. 40: Subject to and without waiver of its above-stated obj ections, the Commonwealth will search for and, to extent they exist, produce for inspection relevant available documents relating to pursuit of and collection from liable third parties for each Commonwealth program for which the Commonwealth seeks damages in this case that may be responsive to this request. The Commonwealth refers Defendants to documents produced in the Commonwealth's July 23, 1998 Voluntary Predisclosure. REQUEST FOR PRODUCTION NO. 41: Provide all pleadings or other documents that reflect 25 GEN 461480
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0 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of The Commonwealth of Puerto Rico's Answers And Objections to Defendants' First Request for Production of Documents has been sent by U.S.. Mail to: AMERICAN BRANDS, INC. [FORTUNE BRANDS, INC.] BRITISH AMERICAN TOBACCO COMPANY LTD RJR NABISCO, INC. PHILIP MORRIS INCORPORATED (PHILIP MORRIS U.S.A.) PHILIP MORRIS COMPANIES, INC. and R.J. REYNOLDS TOBACCO COMPANY Salvador Antonetti Heriberto J. Burgos Perez FIDDLER GONZALEZ & RODRIGUEZ P.O. Box 363507 San Juan, PR 00936-3507 Tel: (787) 753-3113 Fax:(787)759-3109 RJR NABISCO, INC. Sam Mills Daniel F. Kolb Vincent T. Chang DAVIS POLK & WARDWELL 450 Lexington Avenue New York, NY 10017 PHILIP MORRIS INCORPORATED (PHILIP MORRIS U.S.A.) PHILIP MORRIS COMPANIES INC. Manuel Guzman Douglas W. Davis Carlos Steffens Jack E. McClard MAN[TEL GUZMAN LAW OFFICES HUNTON & WILLIAMS P.O. Box 193850 951 East Byrd Street, East Tower San Juan, PR 00919-3850 Richmond, VA 23219 Tel: (787) 756-6440 Tel: (804) 788-8484 Fax: (787) 756-7840 Fax: (804) 788-8218 31 GEN 461486
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LORILLARD INCORPORATED, LORILLARD TOBACCO COMPANY and LOEWS CORPORATION Francisco A. Besosa William J. Newbold AXTMAYER, ADSUAR, MUNIZ Scott Linden & GOYCO, P.S.C. THOMPSON & COBURN P.O. Box 70294 One Mercantile Center San Juan, PR 00936-8294 St. Louis, MO 63101 Tel: (787) 756-9000, Ext. 2020 Tel: (314) 552-6000 Fax: (787) 756-9010 Fax: (314) 552-7597 UNITED STATES TOBACCO COMPANY and UST, INC. Vicente Santori-Coll Hato Rey Plaza, Suite 2 200 Jesus T. Pineiro Avenue Hato Rey, PR 00918 Tel: (787) 765-9170 Fax: (787) 758-6927 Michael Belch Doug Fleming SKADDEN, ARPS, SLATE, MEAGHER & FLOM, LLP 919 Third Avenue New York, NY 10022 THE COUNCIL FOR TOBACCO RESEARCH - U.S.A., INC. William A. Graffam JIMENEZ, GRAFFAM & LAUSELL P.O. Box 366104 Harry Zirlin DEBEVOISE & PLIMPTON 875 Third Avenue San Juan, PR 00936-6104 New York, NY 10022 Tel: (787) 767-1030 Fax: (787) 751-4068 THE TOBACCO INSTITUTE, INC. Hector Reichard de Cardona Thomas J. Code REICHARD & ESCALERA P.O. Box 364148 San Juan, PR 00936-4148 Tel: (787) 758-8888 Fax: (787) 765-4225 SHOOK, HARDY & BACON Ramon E. Bauza-Higuera Liza M. Ramirez de Arellano BAUZA & DAVILA 63 Calle Fortaleza Viejo San Juan, PR 00901 Brendan V. Sullivan, Jr. George Borden Mike Sundermeyer Gerson Zweifach Malachi Jones 0 Tel: (787) 723-0025 WILLIAMS & CONNOLLY 01~ Fax: (787) 725-0339 725 Twelfth Street NW w , -~ Washington, D.C. 20005-5901 ~ ~ ~ 0~ 33 % GEN 461488
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exist, produce for inspection relevant available documents relating to the financing of Commonwealth programs for each Commonwealth program for which the Commonwealth seeks damages in this case that may be responsive to this request. The Commonwealth refers Defendants to documents produced in the Commonwealth's July 23, 1998 Voluntary Predisclosure. REOUESTFORPRODUCTIONNO.44: Withrespect to the Commonwealth's disproportionate share hospital program ("DSH"), produce all documents which: (a) summarize the structure or history of the Commonwealth's DSH program; (b) show (either yearly or in the aggregate) the amount of provider donations, taxes, contributions, intergovernmental transfers, and assessments received by the Commonwealth and used to finance it share of the DSH program; (c) show (either yearly or in the aggregate) the amount of DSH funds that were returned to, or retained in, the Commonwealth's general revenue fund; (d) show the amount.of DSH funds distributed yearly to each provider that participated in the DSH program; (e) show the amount of "net" DSH funds received by each provider each year. ("Net" DSH fimds means the net amount of DSH payment received by the provider after subtracting from the total amount of DSH funds received by the provider for . each year, the donations, taxes, contributions, assessments or intergovernmental transfers paid by the provider to the Commonwealth for use by the Commonwealth to finance its portion of the DSH program.); (f) show how each provider that participates in the DSH programs utilized the DSH payments it received; and (g) show the demographics and/or disease mix of the patient population for 27 GEN 461492
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9 procedures manuals. OBJECTIONS AND RESPONSE TO REOUEST FOR PRODUCTION NO. 33: Subject to and without waiver of its above-stated objections, the Commonwealth will search for and, to extent they exist, produce for inspection relevant available documents relating to fraud, waste, abuse and cost containment within each Commonwealth program for each Commonwealth program for which the Commonwealth seeks damages in this case that may be responsive to this request. The Commonwealth refers Defendants to documents produced in the Commonwealth's July 23, 1998 Voluntary Predisclosure. REOUEST FOR PRODUCTION NO. 34: Produce all manuals, training materials, investigative manuals, handbooks, operating procedures, and other documents reflecting policies and procedures used to detect fraud and abuse affecting the Medicaid Program, including procedures and manuals related to the Surveillance and Utilization Subsystem. OBJECTIONS AND RESPONSE TO REOUEST FOR PRODUCTION NO. 34: Subj ect to and without waiver of its above-stated objections, the Commonwealth will search for and, to extent they exist, produce for inspection relevant available documents relating to fraud, waste, abuse and cost containment within each Commonwealth program for each Commonwealth program for which the Commonwealth seeks damages in this case that may be responsive to this request. The Commonwealth refers Defendants to documents produced in the Commonwealth's July 23, 1998 Voluntary Predisclosure. REOUEST FOR PRODUCTION NO. 35: Produce all documents referring to any sampling or statistical methodology or other techniques (including any regulations, rules, manuals, procedures, practices or policies) utilized by any Commonwealth Program to analyze or project provider overpayments, overutilization or the economic impact of other fraudulent or abusive practices. 22 GEN 461477
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uncompensated or charity care to the hospitals or other entities included in the Commonwealth's Damages claim; and (c) all databases, reports, and studies showing the demographics and disease mix of the recipient of the uncompensated or charity care. OBJECTIONS AND RESPONSE TO REOUEST FOR PRODUCTION NO..46: As the terms "uncompensated health care" or "charity care" are vague, ambiguous and subject to a variety of interpretation and, further, as no definition of these terms was provided in the Common Set of Definitions and Instructions, the Commonwealth, subject to and without waiver of its above-stated objections, cannot properly respond to this Request. The Commonwealth suggests that the parties meet-and-confar so as to agree upon common definitions as to these terms. In the event an agreement is reached, the Commonwealth will supplement its objections and response as appropriate. The Commonwealth refers Defendants to documents produced in the Commonwealth's July 23, 1998 Voluntary Predisclosure. • REOUEST FOR PRODUCTION NO. 47: To the extent that the Commonwealth is making a claim forpayments made with respect to any Commonwealth employee healthplan, produce the following: (a) all annual financial statements showing premiums, appropriations, and claims information; (b) all documents describing the plan, including the obligations of employees regarding co-payments and deductibles; (c) all documents showing information on differential premiums (for smokers verses non-smokers), either charged under the terms of the plan or contemplated; (d) all analyses ofcost and any cost containment initiatives, including studies and reports related to excess utilization, wellness programs, and disease management; 29 GEN 461484
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0 40 ~ ~ ~~
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! claims made by the Commonwealth against third parties to recover for disease or injury allegedly caused by third parties and f or which the Commonwealth has paid medical expenses. OBJECTIONS AND RESPONSE TO REOUEST FOR PRODUCTION NO. 41: Subject to and without waiver of its above-stated objections, the Commonwealth will search for and, to extent they exist, produce for inspection relevant available documents relating to pursuit of and collection from liable third parties for each Commonwealth program for which the Commonwealth seeks damages in this case that may be responsive to this request. The Commonwealth refers Defendants to documents produced in the Commonwealth's July 23, 1998 Voluntary Predisclosure. I. Creative Health Care Finan uingEfforts by the Commonwea[tk REQUEST FOR PRODUCTION NO. 42: Produce all documents that refer to any donation, special tax, assessment, contribution, credit, intergovernmental transfer, or any other payment, whether in cash or in kind, made to the Commonwealth or any Commonwealth Program, either directly or indirectly by a health care provider or any entityrelated to any health care provider. OBJECTIONS AND RESPONSE TO REOUEST FOR PRODUCTION NO. 42: Subj ect to and without waiver of its above-stated objections, the Conunonwealthwill search for and, to extent they exist, produce for inspection relevant available documents relating to the financing of Commonwealth programs for each Commonwealth program for which the Commonwealth seeks . damages in this case that may be responsive to this request. The Commonwealth refers Defendants to documents produced in the Commonwealth's July 23, 1998 Voluntary Predisclosure. REOUEST FOR PRODUCTION NO. 43: Produce all documents that refer to any transfers of funds or expenses from other Commonwealth or local government entities to the Medicaid Program. OBJECTIONS AND RESPONSE TO REOUEST FOR PRODUCTION NO. 43: Subject to and without waiver of its above-stated obj ections, the Commonwealth will search for and, to extent they 26 GEN 461481
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0 _7_ RESP®NSE: Loews Corporation objects to this.Interrogatory because it is overly broad_ unduly burdensome and overly expensive taking into account the needs of the case and the issues in controversy. Loews Corporation objects to this Interrogatory to the extent it seeks information for all time or for an unreasonably long period of time. Loews Corporation also objects to this Interrogatory to the extent it seeks information that is not relevant to the subject matter of this litigation and is not reasonably calculated to lead to the discovery of admissible evidence. Loews Corporation states that it was not a defendant in State of Minnesota et al v Philip Morris Incorporated. et al- and therefore was not required to produce any documents in that litigation. Loews Corporation also objects to this Interrogatory because it must speculate as to the exact meaning Plaintiffs place on the phrase "sister company" which is subject to varying interpretations and is therefore vague, confusing and ambiguous. Subject to and without waiving these or the General Objections stated above, Loews Corporation states that it is unaware of any instance in which it has "transferred the sole copy/copies of a smoking and health related document in its possession to [Loews Corporation's] subsidiary company / parent company / sister company / affiliated company, past or present...." GEN 460282
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0 documents produced in the Commonwealth's July 23, 1998 Voluntary Predisclosure. REOUEST FOR PRODUCTION NO. 25: Produce all documents that refer to the use, if any, by the Commonwealth (including any of the Commonwealth Programs or administrators of such programs, fiscal agents, insurers, or other entities who contract with any of the Commonwealth Programs to provide health services) of a Recipient's Tobacco Consumption history in connection with any terms or conditions of benefits under any of the Commonwealth Programs, including any differential premium charged to consumers of Tobacco. OBJECTIONS AND RESPONSE TO REOUEST FOR PRODUCTION NO. 25: Subject to and without waiver of its above-stated objections, the Commonwealth will search for and, to extent they exist, produce for inspection relevant available documents relating to smoking cessation and wellness programs for each Commonwealth program for which the Commonwealth seeks damages in this case that may be responsive to this request. The Commonwealth refers Defendants to documents produced in the Commonwealth's July 23, 1998 Voluntary Predisclosure. F. Demographic and Prevalence Data from the Commonwealth Population REOUEST FOR PRODUCTION NO. 26: Produce do,cuments sufficient to demonstrate the percentage of health care Recipients from each of the Commonwealth Programs who are or were current consumers of Tobacco, former consumers of Tobacco, and persons who have never been consumers of Tobacco. OBJECTIONS AND RESPONSE TO REOUEST FOR PRODUCTION NO. 26: Subject to and without waiver of its above-stated objections, the Commonwealth will search for and, to extent they exist, produce for inspection relevant available documents relating to Commonwealth demographic and smoking prevalence data that may be responsive to this request. The Commonwealth refers Defendants to documents produced in the Commonwealth's July 23, 1998 Voluntary Predisclosure. 18 GEN 461473
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J NESS, MOTLEY, LOADHOLT, RICHARDSON & POOLE 151 Meeting Street, Suite 600 Charleston, SC 29401 Tel: (843) 720-9000 Fax: (843) 720-9285 BY: CHERIE K. D U.S:D.C. PR #211210 35 GEN 461490
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G. Fraud, Waste, Abuse, Cost Containment and Inefficiency Within Each Commonwealtl: Prograin REOUEST FOR PRODUCTION NO. 32: Produce all quarterly and annual reports prepared by: (a) the Commonwealth unit, department or agency that investigates and/or reports on Medicaid fraud, including the Commonwealth's Medicaid Fraud Control Unit ("MFCU") orits equivalent, including its annual recertification applications and quarterly reports to HCFA, and (b) all entities or units within the Commonwealth, including the Commonwealth's Council on Health Care Fraud and Abuse or its equivalent, responsible for Commonwealth Program integrity and/or the detection of Medicaid fraud and abuse, including entities or units with responsibility forreview ofproviders or recipients through use of a Surveillance and Utilization Review Subsystem of the MMIS computer system and audits or investigations of such providers or recipients. OBJECTIONS AND RESPONSE TO REQUEST FOR PRODUCTION NO. 32: Subj ect to and without waiver of its above-stated objections, the Commonwealth will search for and, to extent they exist, produce for inspection relevant available documents relating to fraud, waste, abuse and cost containment within each Commonwealth program for each Commonwealth program for which the . Commonwealth seeks damages in this case that may be responsive to this request. The Commonwealth refers Defendants to documents produced in the Commonwealth's July 23, 1998 Voluntary Predisclosure. REQUEST FOR PRODUCTION NO. 33: Produce all documents relating to the Commonwealth's Medicaid Eligibility Quality Control System ("MEQC"), including but not limited to, all MEQC reports, documents evidencing any eligibility error rates, annual corrective action plans, and 21 GEN 461476
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9 -9- SERVICE LIST I HEREBY CERTIFY that a true and exact copy of Loews Corporation's Responses to the Commonwealth of Puerto Rico's September 21, 1998 Set of Interrogatories will be served by mail on: Pedro J. Durand Deputy Attorney General for Litigation Department of Justice P. 0. Box 9020912 - Mark Cunha Andrew T. Frankel Kathleen Turland Simpson Thacher & Bartlett San Juan, PR 00902-0192 425 Lexington Avenue New York, NY 10017-3954 Benjamin Acosta Law Offices of Benjamin Acosta, Jr. P. O. Box 9023518 Eric Tulla Rivera, Tulla & Ferrer San Juan, PR 00902-3518 50 Quisqueya Street Ronald Motley Ness, Motley, Loadholt, Richardson & Poole P. 0. Box 1137 Hato Ray San Juan, PR 00917 Sam Mills Daniel F. Kolb Charleston, SC 29402 Jack E. McCIard Douglas W. Davis Maya M. Eckstein Hunton & Williams Riverfront Plaza 951 East Byrd Street Richmond, VA 23219-4074 Manuel A. Guzman P. 0. Box 193850 Vincent T. Chang Davis Polk & Wardwell 450 Lexington Avenue New York, NY 10017 Robert F. McDermott, Jr. Jones, Day, Reavis & Pogue Metropolitan Square 1450 G Street, NW Washington, DC 20005 Robert Gaffey San Juan, PR 00919-3850 Michael S. Chernis Peter Bellacosa Kirkland & Ellis 153 E. 53rd Street Jones, Day, Reavis & Pogue 599 Lexington Avenue New York, NY 10002 co a1\ New York, NY 10022 t~ ~ ~ ~ st~ GEN 460284
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R.J. REYNOLDS TOBACCO COMPANY Robert F. McDermott, Jr. JONES, DAY, REAVIS & POGUE Metropolitan Square 1450 G. Street, NW Washington, D.C. 20005 Tel: (202) 879-3939 Robert Gaffey Michael S. Chernis JONES, DAY, REAVIS & POGUE 599 Lexington Avenue New York, NY 10002 Tel: (212) 326-3939 THE AMERICAN TOBACCO COMPANY BROWN & WILLIAMSON TOBACCO CORPORATION and BATUS HOLDINGS, INC. Peter Bellacosa KIRKLA.ND & ELLIS 153 E. 53cd Street New York, NY 10022 Tel: (212) 446-4820 BRITISH-AMERICAN TOBACCO (HOLDINGS) LTD and B.A.T. INDUSTRIES, PLC Eric A. Tulla RIVERA TULLA & FERRER 50 Quisqueya Street Hato Rey, PR 00917 Tel: (787) 753-0438 Fax: (787) 766-0409 LIGGETT & MYERS, INC., LIGGETT GROUP, INC. and THE BROOKE GROUP LIMITED Edgar Cartagena Santiago GOLDMAN Ah1TONETTI & CORDOVA P.O. Box 70364 San Juan, PR 00936 Tel: (787) 759-8000 Fax: (787) 767-9177 Mark G. Cunha Andrew T. Frankel Kathleen T. Turland SIMPSON THACHER & BARTLETT 425 Lexington Avenue New York,NY 10017-3954 Tel: (212) 455-2000 Michael M. Fay Marie V. Santacroce KASOWITZ, BENSON, TORRES & FRIEDMAN,LLP 1301 Avenue of the Americas New York, NY 10019-6022 Tel: (212) 506-1700 Fax: (212) 506-1800 32 GEN 461487
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® 41
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® -5- whereabouts of the disclosed documents, whether defendant continues to assert a claim of privilege to the disclosed documents, and the identity of the person most knowledgeable about each disclosure. RESPONSE: Loews Corporation objects to this Interrogatory because it is overly broad, unduly burdensome and overly expensive,taking into account the needs of the case and the issues in controversy. Loews Corporation objects to this Interrogatory to the extent it seeks information for all time or for an unreasonably long period of time. Loews Corporation also objects to this Interrogatory to the extent it seeks information that is not relevant to the subject matter of this litigation and is not reasonably calculated to lead to the discovery of admissible evidence. Subject to and without waiving these or the General Objections stated above, Loews Corporation states that it has not "disclosed to the federal government (i.e. any person employed by or any part or subpart of the executive branch; the legislative branch and/or the judicial branch) smoking and health related documents to which it has at any'time asserted a claim of attorney-client privilege." INTERROGATORY NO. 4: Please describe in detail any and all occasions where defendant has transferred the sole copy/copies of a smoking and health related document in its possession to defendant's law firm(s), past or present, and which defendant has not produced into the Minnesota document depository or listed on its revised Oklahoma privilege log. A fully responsive description should be broken down by each transfer and include, without limitation, information identifying the documents transferred, information identifying the law firm to which defendant transferred the documents, the date on which the transfer occurred, the identity of the person(s) ordering I authorizing the transfer, the reason for the transfer, any documents discussing the transfer, and information stating the pres,ent whereabouts of the transferred documents. RESPONSE: Loews Corporation objects to this Interrogatory because it is overly broad, unduly burdensome and overly expensive taking into account the needs of the case and the issues ~ c,w \;0 ) GEN 460280
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Vicente Santori-Coll Law Offices Hato Rey Plaza, Suite 2 200 Jesus T. Pinero Avenue Hato Rey, PR 00918 Steve Klugman Harry Zirlin Debevoise & Plimpton 875 Third Avenue - New York, NY 10022 David Cohen Kirkpatrick & Lockhart 1500 Oliver Building Pittsburgh, PA 15222 Jamie Sifre-Rodriguez Sanchez Betances & Sifre Suite 500, Bolivia 33 Hato Rey, PR 00919 George Bordon Mike Sundermeyer Gerson Zweifach Williams & Connolly 725 Twelfth Street, N.W. Washington, D.C. 20005-5901 Ramon A. Bauza Higuera Bauza & Davila 63 Fortaleza Street Old San Juan, PR 00901 William Snipes Holly N. Weiss Michael A. Cooper Sullivan & Cromwell 125 Broad Street New York, NY 10004-2498 Hector Reichard de Cardona; Esq. Reichard & Escalera PO Box 364148 San Juan, PR 00936-4148 Pedro Santa Sanchez, Esq. O'Neill & Borges American Int'l Plaza, 8' Floor 250 Munoz Rivera Ave. Hato Rey, PR 00918 Edgar Cartagena Santiago, Esq. Goldman Antonetti & Cordova PO Box 70364 San Juan, PR 00936-0364 Marie V. Santacroce, Esq. Kasowitz Benson Torres & Friedman, LLP 1301 Avenue of the Americas New York, NY 10019-6022 Juan A. Ramos Diaz, Esq. Juan A. Ramos Diaz Law Offices 359 de Diego Avenue, Suite 601 San Juan, PR 00909-1711 Salvador Antonetti, Esq. Fiddler Gonzalez & Rodriguez PO Box 363507 San Juan, PR 00936-3507 GEN 460285
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CHADBOURNE & PARKE, LLP Harold D. Vicente VICENTE & CUEBAS P.O. Box 11609 San Juan, PR 00910-1609 Tel: (787) 751-8000 Fax: (787) 756-5250 COVINGTON & BURLING Jaime Sifre Rodriquez Hilda M. Surillo Pena SANCHEZ BETANCES & SIFRE, PSC 33 Boliva, Suite 500 P.O. Box 195055 San Juan, PR 00919-5055 Tel: (787) 756-7880 Michael A. Cooper William J. Snipes HollyH: Weiss Ian A. Shavitz SULLIVAN & CROMWELL 125 Broad Street New York, NY 10004 Tel: (212) 558-4000 David A. Brownlee Peter J. Kalis David R. Cohen KIRKPATRICK & LOCKHART LLP 1500 Oliver Building Pittsburgh, PA 15222 Tel: (412) 355-6500 JACOB,IVIEDINGER & FINNEGAN, LLP Mario J. Pabon O'NEILL & BORGES 250 Munoz Rivera Avenue, 8`s Floor San Juan, PR 00918 Tel: (787) 764-8181 Fax: (787) 753-8944 In San Juan, Puerto Rico, this 30`h day of October, 1998. PUERTO RICO DEPARTMENT OF JUSTICE Off ce of the Deputy Attorney General for Litigation P.O. Box 9020192 San Juan; PR 00902-0192 Tel: (787) 721-2900 Fax: (787) 723-9188 LAW OFFICES BENJAMIN ACOSTA, JR. P.O. Box 9023518 San Juan, PR. 00902-3518 Tel: (787) 722-2363 Fax: (787) 724-5970 34 GEN 461489
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_6_ in controversy. Loews Corporation objects to this Interrogatory to the extent it seeks information for all time or for an unreasonably long period of time. Loews Corporation also objects to this interrogatory to the extent it seeks information that is not relevant to the subject matter of this litigation and is not reasonably calculated to lead to the discovery of admissible evidence. Subject to and without waiving these or the General Objections stated above, Loews Corporation states that there may have been some instances where the sole copies of Loews Corporation documents have been temporarilv in the possession of litigation counsel for litigation purposes, including producing such documents in response to discovery requests. These documents are copied and returned to Loews Corporation. Loews Corporation also states that it was not a defendant in State of Minnesota' et al. v. Philip Morris Incorporated. et al. and therefore was not required to produce any documents in that litigation. Loews Corporation further states that Loews Corporation documents responsive to discovery requests but withheld from production on the basis of privilege in State of Oklahoma, et al. v. R.J. Revnolds Tobacco Company, et al. have been properly logged in that case. INTERROGATORY NO. 5: Please describe in detail any and all occasions where defendant has transferred the sole copy / copies of a smoking and health related document in its possession to defendant's subsidiary company / parent company / sister company / affiliated company, past or present, and which defendant has not produced into the Minnesota document depository. A fully responsive description should be broken down by each transfer and include, without limitation, information identifying the documents transferred, information identifying the company to which defendant transferred the documents, the date on which the transfer occurred, the identity of thee person(s) ordering / authorizing the transfer, the reason for the transfer, any documents discussing the transfer, and information stating the present whereabouts of the transferred documents. GEN 460281
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® IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO PEDRO ROSSELLO, in his capacity as GOVERNOR OF ) THE COMMONWEALTH OF PUERTO RICO, JOSE A. ) FUENTES AGOSTINI, in his capacity as ATTORNEY ) GENERAL OF THE COMMONWEALTH OF PUERTO ) RICO, on behalf of the COMMONWEALTH OF ) PUERTO RICO, and THE COMMONWEALTH OF ) PUERTO RICO, ) ) Plaintiffs, ) ) Civil No. 97-1910 (JAF) v. ) ) BROWN & WILLIAMSON TOBACCO ) CORPORATION as successor by merger to THE ) AMERICAN TOBACCO COMPANY, ) et al., ) ) Defendants. ) ) LOEWS CORPORATION'S RESPONSES TO THE COMMONWEALTH OF PUERTO RICO'S SEPTEMBER 21. 1998 SET OF INTERROGATORIES Loews Corporation, pursuant to Rules 26 and 33 of the Federal Rules of Civil Procedure, responds to "The Commonwealth of Puerto Rico's September 21, 1998 Set of Interrogatories" (hereinafter referred to as "Inten•ogatories") as follows': GENERAL OBJECTIONS A. Loews Corporation objects to the "Instructions" and the "Definitions" to the Interrogatories to the extent they attempt to impose obligations on Loews Corporation other4han those imposed or authorized by the Federal Rules of Civil Procedure and to the extent they attempt to alter the plain meaning of the words used in the Interrogatories. 'Loews Corporation expressly continues to maintain that it is not subject to the in personam jurisdiction of this Court, and neither consents, nor waives any objection, to this Court's in nersonam jurisdiction over it by filing these responses and objections to these Interrogatories. 00 011 W •.~ C3 O ~ GEN 460276
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® COUNTY OF NEW YORK ) ) ss STATE OF NEW YORK ) VERIFICATION Mark S. Schwartz, being first duly sworn, deposes and says that he is the Assistant Controller of Loews Corporation; that he verifies for and on behalf of Loews Corporation the foregoing responses of Loews Corporation to The Commonwealth of Puerto Rico's September 21, 1998 Set of Interrogatories; that he is duly authorized to do so; that the matters stated therein are either within his personal knowledge or that he is informed and believes the information therein is true. MARK S. SCHWARTZ, Subscribed and sworn to before me, a Notary Public, thi~day of October, 1998. Notary Public ~ ~ . CAROL ®oKroRSt® t,v ~ NOTARY PUBLIC, State oP NewYa16 No.3o0.4720614 ~ Quslitled in Nassau Countp - Certifcate Filed in New York CounN . Commission Expires June 30 200U ~i ~ GEN 460293
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® -4- waiving these or the General objections stated above, Loews Corporation states that it has not "undertaken to estimate, calculate, approximate, determine, analyze, study or model the health care costs and/or social costs that may be associated with, caused by, and/or attributable to smoking." INTERROGATORY NO. 2: Please state whether defendant (or any person/organization on behalf of or at the request of defendant or its counsel) has ever undertaken to design a model, methodology, approach or analysis to estimate, calculate, approximate, determine or study the amount of any state funded, federally funded or privately funded health care costs that may be associated with, caused by, and/or attributable to smoking. If so, please describe in detail these undertakings. A fully responsive answer should include the name(s) of the person(s) / organization(s), the address of the person(s) / organization(s),. the date(s) on which these undertakings took place, a description of the model, methodology, approach or analysis undertaken and the results of these undertakings (or in the event these undertakings were not carried out to completion, any preliminary results, the reason(s) why these undertakings were not carried out to completion, and the identity of the person(s) responsible for deciding not to carry them out to completion). .. ~ RESPONSE: Loews Corporation objects to this Interrogatory because it is duplicative of ~ Interrogatory No. 1. Subject to and without waiving this or the General Objections stated above, Loews Corporation incorporates herein its response to Interrogatory No. 1. INTERROGATORY NO. 3: Please describe in detail each and every instance in which defendant has disclosed to the federal government (i.e., any person employed by or any part or subpart of the executive branch, the legislative branch and/or the judicial branch) smoking and health related documents to which it,has at any time asserted a claim of attorney-client privilege. A fully responsive description should be broken down by.each disclosure and include, without limitation, information identifying the documents (e.g., bates number, author, recipient, date, etc.), the date on which the documents were disclosed, the proceeding in which the documents were disclosed, the reason the documents were disclosed (e.g., court order, in camera review, subpoena, investigative demand, letter agreement, informal agreement, etc.), the person/entity to whom the documents were disclosed, the present le ~ GEN 460279 ~1
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® RESPONSES TO INTERROGATORIES INTERROGATORY NO.1: Please state whether defendant (or any person/organization on behalf of or at the request of defendant or its counsel) has ever undertaken to estimate, calculate, approximate, determine, analyze, study or model the health care costs and/or social costs that may be associated with, caused by, and/or attributable to smoking. If so, please describe in detail these undertakings. A fully responsive answer should include the name(s) of the person(s) / organization(s); the address of the person(s) / organization(s), the date(s) on which these undertakings took place, and the results of these undertakings (or in the event these undertakings were not carried out to completion, any preliminary results, the reason(s) why these undertakings were not carried out to completion, and the identity of the person(s) responsible for deciding not to cany them out to completion). RESPONSE: Loews Corporation objects to this Interrogatory to the extent it purports to (i) require searches of files and production of information in the possession of third parties; or (ii) require Loews Corporation to produce information and materials not within Loews Corporation's possession, custody, or control, Els'such requirements are inconsistent with Loews Corporation's obligation under the Federal Rules of Civil Procedure. Loews Corporation objects to this Interrogatory to the extent it seeks the disclosure of information protected from discovery by the attomey-client privilege, the work product doctrine, the joint defense privilege or common interest privilege, and/or any other applicable privileges or exemptions. Loews Corporation. also objects to this Interrogatory to the extent it seeks information that is not relevant to the subject matter of this litigation and is not reasonably calculated to lead to the discovery of admissible evidence. Loew,s Corporation objects to this Interrogatory because it must speculate as to the exact meaning Plaintiffs place on the phrases "associated with" and "health care costs and/or social costs" which are subject to varying interpretations and are therefore vague, confusing and ambiguous. Subject to and without cO 6\ W -ty . - ~ C) t O GEN 460278 N'D
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® -2- B. Loews Corporation objects to the "Instructions" to the extent they purport to impermissibly limit Loews Corporation's right to claim that information is protected from discoverc by the attorney-client privilege, the work product doctrine, the joint defense privilege or common interest privilege, and/or any other applicable privileges or exemptions. C. Loews Corporation objects to these Interrogatories as being overly broad and unduly burdensome to the extent they request information for an unreasonably long period of time, to and including the present. D. Loews Corporation objects to these Interrogatories to the extent they seek the disclosure of information protected from discovery by the attorney-client privilege, the work product doctrine, the joint defense privilege or common interest privilege, and/or any other applicable privileges or exemptions. E. Loews Corporation objects to these Interrogatories to the extent they seek'information that is not relevant to the subject matter of this litigation and is not reasonably calculated to lead to the discovery of admissible evidence. F. ' Loews Corporation objects to these Interrogatories to the extent they purport to (i) require searches of files and productions of documents in the possession of third parties; or (ii) require Loews Corporation to produce information and materials not within Loews Corporation's possession, custody, or control, a's such requirements are inconsistent with Loews Corporation's obligation under the Federal Rules of Civil Procedure. G. Loews Corporation objects to these Interrogatories to the extent they seek information that "relate[s]" to or is "regarding" a particular subject. The terms "relate" and "regarding" as defined in paragraph "3" of the "Definitions" are vague, ambiguous. and overly broad, particularly if they are intended to mean something other than documents which discuss or refer to the specified topic. For the purposes of this response, Loews Corporation will interpret the terms "relate" or "regarding" as seeking information that "discusses or refers to" the specified subject. These General Objections are incorporated into the following responses and shall be deemed continuing as to each Interrogatory, whether or not specifically stated, and are not waived, nor in any way limited, by the responses. GEN 460277
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NOV 95 1958 11;59 FR j"pMPSON COBURN 9 314 552 7000 T0~36705136-9133 P.05/39 filing the instant motion is to obtain the names of thousands of recipients ofpublicly funded health care= in al effort to seek limitless discovery on an iatdividual-by-individual basis. Such discovery would include thousands ofdepositiotts aud wouldbe directlycontrary to this Coutt's rofing that this is neither a subrogatioa case nor a class action lawsuit on behalf of individual smokers. Moreover, the defendants' demand for recipient identifying information must be denied undergoverning statutes,regulations andprivilegesduetotheconftdentialnaiure oftheinforasation. IH, D1EF1rP1DA1VTS' A1'1'F14YPT TO DISCOVER 1'ffiIIE 1DENTITIES ®F PUBLIC FYEALI11 CARE.121ECLPFLNTS IS MISGUIDED GYVERT TEIS COURT'S TtNLTNC The Court has detetmined that this is neither a"giant" subrogation case brought to recoup public healthccare costs forsmokersnoraclass actiononbehalfofindividualsmokersbutis, instead, , a direct action brought on behalf of the citizens of the Commonwealth ofPueRo Rico. Moreover, this Court has found that the Commonwealtlt's inJurias and theories ofproideuste cause, as alleged, genetalty favortheplainti$'sposition. See Opinion and OrdetdatedJune 2,1998, and Op3nionand Order dated August 10, 1993, attached hereto and incerlwrated herein by referenee as eolleclive Exhibit 1. Despite the Court's unequivocal xuliug on these issues, Defendants' naistakenly rely on Cimino andFibreboard and aconcoctedtheory ofpmxinsate cause to seek d't'scovery ofthe fdentities ' Recipients of publicly fitnded health care in Puerto Rico include individuals eligible under ' Co 0\ Federal Medicaid categories of eligR bility, individuals eligible undec Puerto Rico-specifte categories of cligibillty (Medicaid 0), and employees of Stte Commonwealth of 1Ptterto Rico and its public agencies. UJ -i=. \0 0 ~ w -- -- I l i ! _ GEN 4BD319
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N0U 05 1998 12:04 FR CSON COBURN 9 314 552 7000 TO#36705136-9133 P.20i39 NESS, MOTLEY. LOADHOLT. RICIi?,RDSON & POOLE 151 Moeting Stroet, Suite 600 Charleston, SC 29402 Te1: (843) 720•9000 Fax: (843) 720•9285 LAW OFFICES OF BE,NJA/V11N ACOSTA, ,1K. P.O. Eox 9023518 San Iuao, 9'R 0®902 Tel: (787) 722-2363 Fa:c: (787) 724-5970 VICTOIt7A MiJNETtA PAS U.S.D.C. PR Na: 2124l0 ao ON w ~ ~ 18 • ~ G3 (9046p330
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NDU 05 1998 12:00 FR ydpMPSON COBURN 9 314 552 7000 TD#36705136-9133 P.07/39 , recipients, as well as, any discovery related to these individuals, is irrelevant to the claims and defenses at issue and, therefore, such informaflon is not discoverablee. Moreover, the Attorneys General are required, pursuant to certain federal and state laws, to protect the identities of public health oare recipients. In each of aforemeotioned cases, the claims duta was provided to the defendants only aftor the identifying recipient infotmation was masked andfor encrypted. Defendants' assertion thar it is essential that they be allowed discovery of the identities of the recipients ofpublic health care in the Commonwealth is both unfounded and inconsistent with, the position that these various named Defendants have taken in other Attorneys General cascs. Although Defendants have, in thepast, sought to depose a number ofIvledicaidrecfpients, which is disovssedfurtherin8ectionBbelow,theyhaveaepeatedly sti ~ulatedtothemaskingandencryption ofMedioaid andstateemployee insurance claims data, the verysameidentifyinginfa8nstionwhich theynow claim to be essentiat For example, in Texas and Massachusetts, Defondants entered into "agreed orders° for eneryption and masking of tbe Medicaid elaims data. As a result, recipient identifying informs6on, such as the individual's name was encrypted only to enable Defendants to ide+uify that individual by a number instead ofllisJher actual name. Infonnafion such as the individuals address was simply masked. Copies ofthese Agn,~ed Orders aie attached hereto and incoapoaated herein as Exhibits 3 and4.aespectivvely. Sittularly,inbothMissassippiandOklahomathepaztiesreaehedanagreeatent to mask andlor cncrypt all recipient identifying information. In both cases, the courts maden:d masking and/or encryption ofiecipient identifying information, including information from which in other jnriisdictions. See Letter datedJnly 16,1998torn Gtnenioh to McClard, and a reply letter dated August 6,1998, from McClard to Graenl®h attached hereto and incorpornted herein as collective Exhibit 2. Reqttiring the Commonwealth to now reproduce this data in another format will cause serious delay and additional expense to the parties. 5 GSPtA60317
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N0U 05 1998 12:01 FR g,~1MPSON COBURN 9 314 552 4000 TO #36705136-9133 P.12/39 computer modeling data and other information that the State seeks to use to prove causation and damages. The State bas also disclosed information on alleged Medicaid fraud and mismansgement. Defendants have not been denied any information used by the State to prove causation and damages, Defendantsthereforehaveareesonableandadequatebasistoseektoimpeach the States eomputermodeL 7. Accordingty, denying Defendants' motion to conduct discovery on everyMedicaidrecipientwhichformsthebasisofthe State's claims does not Defendants' due process rights. See Texas Order, Exhibit "9" hereto. C. TBE C®N6MONWEAT,TH'S IDAKAGE EXPERTS 'N!<LL NOT USE I1VElfVIDBJAi. PATIENT ID G INFORMATION The Commonwealth's own damage experts will not rely on or use in any way the public healthoarerecipients'names orotheridentifyinginfotYhationto complete theirdamageanalysis.See Affidavits ofDr. G1ennHarrisonandDr. Je9'reyF.acrls attached as Exhibits 11 and 12, respectively. Moreover, the Commonweahh's experts will not use the individual clalms records for any purpose other than to determine the demo&raphie characteristics of the Conuuonwealth's public aid populationand to categorize the types ofinedicaPservicesprovided to thispopulation. Although the Convnonwealth's experts will use the computerized claims records for those huuted purposes, it is not necessary for the Wcperts to review any of the claims on an individual by individual basis. Jrutead, tke Commonwealth's experts will reIyupon reports coutahvngagg[egato infonnation which are genemted by a subset of the information eontained within the claims data. Moreaver, the Commonwealth's experts wi11'not review each of the atcipient's raedlieel or claims records in ordertodetennine whatportion of the Commonwealth's health cara expenditures are caused by tobacco. Such a pa{nstaking review of millions of individual medical and eomputerized claims records would be analogous to counting individual grains of sand on abeach in order to calculate the total atnount of sand. Instead, the Commonweslth's experts will use 10 Co 01\ GJ -1~ ~ C I~7 ®
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® 39
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO ) PEDRO ROSSELLO, ET AL. ) ) Plaintiffs, ) Civil No. 97-1910 (JAF) ) V. ) ) BROWN & WILLIAMSON TOBACCO ) CORPORATION, ET AL. ) ) Defendants. ) . ~ ~ MEMORANDUM IN SUPPORT OF MOTION OF f F.R ( A1N 1]EF~N13AilTT R S T'OR A POTECTiYF ORDER I. PROCEDURAL BACKGROUND On or about September 24, 1998, plaintiffs served subpoenas ducec tecum on four law firms and one lawyer in three different federal judicial districts seeking, among other things, documents relating to those lawyers' representation of a cigarette manufacturer variously known as Liggett & Myers Inc., Liggett Group Inc_ or Brooke Group Ltd. (collectively "Liggett"), that "refer or relate to, directly or indirectly, issues involving smoking and health." Plaintiffs served these five subpoenas in the Southern District of New York (on Latham & Watkins), the District of the District of Columbia (on Patton, Boggs & Blow and Arent, Fox, Kintner, Plotkin & Kahn); GEN 182028 NY: 1005176v1 . . P/inwl: 10•26J922:01
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NOU 05 1998 12:03 FR OMP30N COBURN 9 314 552 7800 T0#36705136-9133 P. 16/39 recipients to putposes directly connected with the administration of the plan. 42CFR§431.301.'a In accordance with the federal requirznzent, the Commonwealth of Puerto Rico Depaltment ofHealth provides safeguards to restrict the use or diselosnre of information concerning applicants, recipients or beneficiaries to purposes directly connected with administration of the Commonwealth of Paetto Rico Health Facilities and Services Administration ofPuerto Rico Act P.I,. #26 of November 13,1975. The federal regulations make it clear that applic.ants,recipients or beneficiaries must be iaforrned that the information they provide to the Medicaid program will be kept confidential. 42 CFR § 431.304 specifically provides: Publicizing safcguarding reqrurenents. (a) The agency must publicize provisions governing the confidential nature of information about applicants and xecipients, including the legal sanctions imposed for improper disclosure and use. (b) The agency enust pravPde copies of these provisions to applicants and recipients and to other persons and agencies to whom hfimation is disctosed. Pmpbasis added.) The fedecal goversument, at 42 CFR §431305, has defined the types of information that inust be safeguarded. The list is not inclusive aad mest include at least: `(1) nanaes and addresses; (2) medical services provided; (3) social and ec®nomia conditions or cuaumstances; (4) agency evaluation of personal infomtation; (5) medical data, ineluding diagnosis and past i°Disclosure of identifying information, regarding its Medicaid recipients to the defend.ants, could result in the loss of fedeal fuading fDr the CoYnmonwealtfi's Medicaid program. Apart from losing its federal funding, the disclosure of identifying iaformation could expose the Commonwealth to additional penalties and civil claims. 14 GEN 460326
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and the Middle District ofNorth Carolina (on Josiah S. Murray, II1 and Newsorne, Graham, Hedrick & Kennon).1 Contrary to the "prior notice" requirement of Fed. R. Civ. P. 45(b)(1), plaintiffs did not deliver copies of these subpoenas to counsel for defendants in this action until Saturday, October 10, 1998 -• long n.$gt the subpoenas had been issued and served on the non-party law firms and lawyer. At the conference before this Court on October 15, 1998, defendants' counsel advised the Court ofplaintiffs' counsel's violation of Rule 45(b)(1)'s prior notice requirement and referred to this Court's decision in Unite States v SantiaEo-T.ugo, 904 F. Supp. 43 (D.P.R. 1995). The Court ruled as follows: THE COURT: Let me say this. The Rules of Civil Procedure tell you how to deal with these things. There's case law that tells you how to deal with subpoena power. I will not tolerate any deviation from that model, It's as simple as that. In Santiago Lugo, I decided not to impose sanctions. If it happens after today, I'm going to take severe sanctions against whomever does it. And if it's a Stateside attorney, I am going to revoke his authority to practice in this court immediately. But I will not allow it. Go ahead. So you have a ruling. You will have that order. (5gg Transcript of Conference on October 15, 1998 at 16-17, copy of relevant transcript pages attached hereto as Ex. A.) All subpoenas at issue on this motion are null and void for the same reasons as stated by this Court in Santiaeo-Lueo: [T]hese civil subpoenas are defective. They are unauthorized and improper mandates forcing third parties under the authority of this I At or about the same time, plaintiffs also served two other subpoenas on non-lawyers in two other Judicial Districts. NY: 1005176vt Prinled: 10-26•9822:03 2 GEN 182029
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NOU 05 1998 12:01 FR '~]MPSDN COBURN 9 314 552 7000 TD ib36705136-9133 P.10i39 evidence of their own wrongdoing and the deadly nature of their product by trying this case individual by individual and shiRing the focus to the conduct of others. The Court in the Florida Attorney General action.con°ectly observed Defendants' pinpose in discovering the identities ofMedicaid recipients: The only purpose at this time that the Court can determine in Defendants obtaining the individual names of-several hundred thousand Medicaid patients would be an attempt to argae to this Court that all of those named patients should be investigated and or deposed in this case. (A copy of the 10118/96 Florida Order is attached hereto and Incorporated herein as Exhibit 8.) The history of Defendants' actions in this type of litigation makes it clear that Defeadants, if pemritted by the courts, seek to conduct limitless discovery of public health care recipients, their families, and their medical providers. Such discovery is not only irreievant to this direct action and in contcavention ofthis Court's rnling an the issue of subrogation but, ifalloWed, would asake this case impossible to litigate. Indeed,Defendantshaverequestedsnchoverwheimingdiscoveryin otherAttorneys General cases. FnthenmajorityofjudsdictionsthatLaveaddressedthisissae;discoveiyofitulividualbealtft cere recipients has either been denied outdgbt6, or granted on a very limited basis.7 Besaase Defendantsrecogaizetbatsuch asmarisampleofd®positionsate statisticallyinsigaificanttheyhav® now chosen to seek discovery of each and every public heatth osre seeipiett, in Oklahoma, the 6 The only federal court to address the issue of individual health care reeipleat discovery was in the Texas Attorney Geaseral oase wherein the court denied, outaight, Defendauts' request to conduct any such discovery. 8ee Texes Orders attached hereto and incorporated hetein as collective Pxhibit 9. In addition, the same type of individual discovery was denied in the Massachusettes Attorney General action, ' Defendants were only allowed discovery of20 health cane recipients in Mississippi,l0 in Minnesota, 50 in Florfda and 35 in Oklahoata. 8 ~- .. _LL i .: P . fW45o3ZO ~
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NOV 05 1998 12202 FR $~(]MPSON COHIJRN 9 314_552 7000 T0636705136-9133 P.13i39 scientifically acceptable methods to reach their results. Although each of the Commonweaith's experts may employ a somewhat diffeteat methodology, each of their methodologies can be characterized with a simple formula: (e) Total Medicaid Expense X (2) SAF{3) SAE InBtep (1), the Comrnonwealth's experts will use aggregate expenditure reports which show how much money the Commonwealth has spent to treat the public aid recipients in any given year. It is important to note that the individual claims are not needed or used in the kirst step of the analysis. In Step (2), the Commonwealth's experts will determine the "fracdon of total health care expenditureseausedbytobacco,i.e.,theSmokingAttributableFraction(SAF). Theexpertswilireiy; on the vast body research on tobacco, the principles of epidemiology, economics, statistics and actuarial science, but theywill not analyze ariy individuaPs medical records or claims records. As stated above, certain information will be drawn out of the claims data and used by the Cotnmonweaith's experts in aggregate fona. However, those aggregatemports will be provided to IDefendants and Defendants aan easily anslyce, reaonstruct and ctitique the data relied upon the ComnonwealWs experts without the use of any individual identifying infonnation. In Step (3), the Commonwealth's expeitswillmultiply thelotal health care expenditusesby ' theSAFinordertodeteraainetheSmokingAttributableEapenditures(SAF). TheCommonwealth's expet'ts do not use any individual claims data for thia final step. Using the same and similar information that wi116e provided in discovery in this oase, Defendaats have been able to duplicate damage calculations in Mississippi, Florida,. Texas, Minnes®ta, Washington and Oklahoma without the use of any individuai identifying infoxmationm it IL .'L GER460323
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NOU05 1998 11:59 FR MPSON CDBIJRN 9 314 552 7000 T0 CS636405136-9133 P.03i39 _Lw; Lcl IN THE UNITED STATES DISTRICT C~)[JRT FOR TffIE DISTRICT OF PUERTO A~Ft$i,I 28 P4f -, CIS?:~li I L Ur PEDRO ROSSELLO, et s1 ) ;~y JU=k ° F ) Plain8stfs, ) ) vs. ) CIVIL ACTION NO, 97-1910 (JAE) ) BROWN & WIF.LIAMSON TOBACCO ) COR.PORATYON, ET AL., ) ) Defendants. ) PLAENTIeFS° RESPONSE AND MEMORA"UM OF LAW IN OPPOSITION TO IDEFENIYANTS' MOTI®N TO COMPEL DISCOVERY OFItECIPIENT PAYMENT INFORMATION NuN=AC=ND uNENCRVPjEn FO$UVI I. I®trodacEion Despite Defendants'repeated efforts to misoilazacterize this case, the Court has recogoized the Commonweaitll's unique position to brueg and maintain this lawsuit to protect tbe health and welfareofifscitizessandtoreooverthecostsimpose8ontheComa>sonwealthbyDefndants'deadly . and addictive pmduct.' As discussed in moxe detail below, Oefendants' only purpose fbr >. ' As early as the 1970's the soothsayers of the tobaoco industry predicted ttiat "someday. ... someone" would attempt to hold the induatry accoumtable for the spiraling health cace costs caused by tobacco use and inctuted by govetromental.enttties. The exact pmgnos6oation went sometift like this: uaansdW kaweek~Z~dj~icqig Uzwmd bmg~m~plw,,pdiry•aSe. 71we,rd pbsb qaing mya¢ WenalaowunvLkt• 12q, ncaabovdm~.i. tiealro me mrts arc dr7aa.~ ®.1amh,g a1x S~Bb'IlinoPa 1966 - Sl4'Sp1tim ip 1971 ~ .. 57196i11ewa,1981iW7dP~} . ' ' , ' CJy llmaindwtryaua~uitnuandeCmmnpr.tkmrpe~oxwPl~~i'is.dDi~w~eGi~•rdi~srapoa¢srpnefu: ' C,U rtular4s.1~9mntroho,.ebyde~umveskWsUxp„~pey1n16ema.lTaa.mhr.allbaAast4xmq~o~+.Qmim11y,16eepyripnq -~ IhW1!lOYNR~MIImaepqaMCV~fP. {WsYY9tQtlyR2V~itllKihkAaeOPLeVNN4 \[j Philip Mot•ris, Intecraal. Memq November 20, 1978. o ~ GEN 460313
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0 For decades, Liggett and the Non-Liggett Manufacturers have shared a number of common legal interests in smoking and health actions. First, because plaintiffs in such actions typically named as defendants each manufacturer of cigarette brands smoked by the person who claimed to have been injured, several manufacturers often were named as defendants in a particular action and, as discovery proceeded, manufacturers were often added or dropped. (Dobbins AffT at ¶ 12, Ex. 0 hereto.) And, apart from being actual or potential co-defendants, because each smoking and health action could potentially have a significant impact on other pending actions, as well as on the number of such actions that might be filed, the manufacturers shared common legal interests even in actions in which they might never be named as a defendant. (Saunders Aff. at ¶ 14, Ex. N hereto.) In addition to their common legal interests in defending pending and anticipated smoking and health actions, Liggett and the Non-Liggett Manufacturers have long shared common legal interests in meeting, defending, and/or addressing a number of regulatory and legislative initiatives and proceedings that relate to smoking and health. (Dobbins Aff. at ¶ 16, Ex. 0 hereto.) Since at least the 1950s, numerous regulatory and legislative proposals have sought to regulate the manner in which cigarettes are manufactured, packaged, advertised, and sold. For example, in the Federal Cigarette Labeling and Advertising Act (codified as amended at 15 U.S.C. §§ 1331-41), which was passed in 1965 and amended in 1970, 1973, 1984, and 1985, Congress has mandated the manner in which health warnings are placed on cigarette packages and in cigarette advertising and promotional materials (at § 1333), required the disclosure of ingredient information to the U.S. Department of Health and Human Services (at § 1335a), and barred cigarette advertisements from television and radio (at § 1335). $~u Action on SmQkiing.& Health v Ca(ifann, 655 F.2d 236 (D.C. Cir. 1980) (affirming dismissal of action nr: toostrsw GEN 182035 Fdnt=d: 10-26-9822:01 g
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NOV 05 1998 12:00 FR ~j,'[]MPSON COBURN 9 314.552 7000 T0 #36705136-9133 P.08/39 the identity of the recipient or their health eare pmfessional could be deduced. See Mississippi Order, attached hereto and incorporated herein as Exhibit 5, at p. 3.16; and Oklahoma Order, and encryption faelds annexed thereto, which is attached hereto and incorporated herein as Exhibit 6. What one leams from this collection of Agreed Orders is not only that courts overseeing directactionsaitshave deemedmasldng and/oreacryption tobenecessaty,butalso, thatthmse eame Defendants have been able aad willing to defend similar cases without the use of the recipient identities they now claim to be essential. More raoentiy, the Court in Now York followed the vast majority of other jurisdictions and foundthattheindividualidentiiying inforasation intheMedicaidclain4s datashouidbe masked and encrypteds. SceNew York Order attachedhereto aadincorporated herein as Exhibit 1. Inreaching its declsion, the New York Court reoognized that in every jorisdiction, aside fimm Maryland, the individual Medicaid recipient identities were not provided: A finding that amredacted disclosure is unwarranted is also supported by deoisions rendered in other states the vast m4ority afwhich have deterroined that limited redaction and encryption are appropriate. See, Memo 9n Opposition, Ex. 3(Florida coattdeniedmquest foriden 'h£acation ofN3edicafd rcoipients); id., Ez.. 5(Mississippi court ordered ettcryption of Medicaid recipient sdeptffying information); id., Ex.. 6(Oklahotaa court ordered masking and etuayption of Meda'caid recipient idemtifying inf®imatiorA). in other juuisdictions, the parties have zeeognized that limited sedaetion is nec®ssary and proper. See, id,I3x..7 (patties in Texas actionagreed to mask and enorypt ideatifying information), idL, Ex.. 8(paities in Massachusetts action agteed to redaction). (Exhibit 7 attached hereto and incorporated hereitt byrefexence) Further, the New York Court rejected the defendants' attempt to mischa=acterize that aase as a subrogation ease: c>a GO 5 Defendattts have since filed a motion to vacate the New York Court's Augost 24,1998, order on the masking and encryption of Medicaid data tapes. C;J -s \0 C, . 6 ~ ~, 1-t N1 i801Y V4TU19
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N0V 05 1998 12:00 FR 4 MPSON COBURN 9 314 5527000 T0#36705136°9133 P.09/39 Defendants further argue that the State is seei4ng restitution for individuals, thus medting production of the requested documents. This atgument fares no better for defendants than their previous contentions, as the State is seeking restitution for its own expcnses, not on behalf of any individual recipient (Exhibit 7 attached hereto and incorporated herein by reference.) The New York case represents a change in Defendan& previous position on masking and encryption compared to the majority of the otleer Attorneys General actions. tJnfertturately, Defendants' counsel in this casohave followed the example setby defense counsel in theNew York case andhav®chosento litigatethis isstte. However„Defendants' pastwiliingaessto stipulatetothe masking and redaction of the individual recipient claim information belies their assertionthat such individnal information is essential in this ease. The onlyAttomeys GeneraleasewhichDefetidants offerin support oftheircuamnt position is that of the State of Maryland. However, the Ivlatyland Cotnfa decision to allow Uefendants unreatricted access to the Medicaid elaims data was influenced by that Court's determination that the Maryland case should proceed undersabrogation. Because that Court decided the masking and encryption issue in the wake of its May 21,1497, subrogation niling, it is clearly distinguishable fsom this ease and ttte Attorneys Genetal cases mentioned above. B. IDEFEIYJ<)AN7CS' REQUEST FOId TRE %I3ENFgTlES OF H7EALTlEI CARE RECIPIENTS IS A PRECURSOR TO I. S DISCOVERY OF WfNIDRFi1S OF Tli0I7SANDS OF INDIVIDUALS Defendants' cuarent motion to discover the identities ofpublic bealth care reoipients is the provet6ial '7oe" camel ttying to get its nose under the tent. This Court must determipe what legitimate use Defendants could possibly have for requesting the disclosure of the identities of thousands ofpublicly 5mded health carereoipients in thc Commonwealth given its prior ruling that this is not a subrogation case or a class action Sawsuit. Obviously, Defendants want to deflect Co 01\ w -a> ~ 7 _~ ~ (rEP146t1319
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J In March 1997, Latham & Watkins resigned from its representation ofLiggett shortly after Liggett announced the terms of its settlement of Medicaid reimbursement actions filed against it by a number of state attorneys general. In that settlement, Liggett agreed, among other things, to waive its own claims of attorney-client privilege and work product protection, as well as to actively assist those state attorneys general in pursuing their claims against the remaining American cigarette manufacturers. (3/20/97 Settlement Agreement at § 4.3.2(2), copy attached hereto as Ex. J.) Liggett obviously could not waive the privilege of other defendants. Hence, pursuant to that settlement agreement, as stated above, Liggett waived jL; privilege claims. However, prior to providing copies of these documents to the state attorneys general, Liggett submitted copies of what it represented to be all documents as to which it had previously asserted any claim of privilege (including those that Liggett had previously asserted a joint defense claim and those that Liggett had not) to the Non-Liggett Manufacturers for review. This review was a necessary measure to ensure that no joint defense privileged documents were inadvertently released to the state attorneys gencral. After being afforded such an opportunity, the Non-Liggett Manufacturers asserted joint defense privilege claims to roughly 2,400 documents from Liggett's files. Because Liggett has not waived -- and cannot waive -- either Latham & Watkins' own claims of work product protection or the joint defense or "common interest" claims of the Non-Liggett Manufacturers. Tndeed, Liggett and its counsel have repeatedly represented that they would take all necessary and appropriate steps to protect claims ofjoint defense or "common interest" materials. (Letter from Northrip to LebowgJ ai, of 3/21/96, copy attached NY: 11105376v1 priNrd: 10•26•9822:03 6 GEN 182033
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NOV 05 199B 12:09 FR 'jjf PSON COBURN 9 314 552 4000 TO V5136-9133 P.39/39 Now84•SS 16:88 Froa-NlYITON WILLIAMS 1426 T-4S8 P-21/26 F-P89 III. Cone6usiato For ahc afo:emcat9oned ressons. Defendants respectitlliy ask this Court t® ffiwt thoit mouon to compel discovery of recipieat payrrtalx itfOtmauon in umredacted aud unenerypted form. 19 FA-X 086A46 ** TS]TAL PAGE.39 **
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Liggett's attorneys pursuant to thejoint defense effort. Accordingly, it is virtually certain that Latham & Watkins' files contain documents that were created pursuant to, shared pursuant to, and contain and reflect the joint defense efTort. D. Toint Defenae Documents in Tnsiah Murray's Files Attorney Murray was privy to and participated in many of the joint defense discussions, communications, and other effbrts described previously. Further, counsel for other members of the joint defense effort often shared attorney-client privileged, opinion work product, and work product materials that related to matters of common legal interest with Liggett and its attorneys pursuant to thejoint defense effort. Accordingly, it is highly likely that any files within the possession ofMr. Murray or his law firm would contain documents that were created pursuant to, shared pursuant to and contain and reflect, the joint defense effort. E. The Subpoenas to Latham & Watkins and the Gther Lnwverg On or about September 24, 1998, plaintiffs' counsel in this action served Latharn & Watkins' New York, New York office with a subpoena r s te~ returnable on October 15, 1998 and served the other three law firms and Attorney Murray with substantially similar subpoenas. (Exs. B-F hereto.) Plaintitt's' counsel has delayed the production date until a time yet unspecified. The subpoena voas tectim addressed to Latham & Watkins seeks "[a]ny and all": (a) "documents in Latham & Watkins' possession, custody or control sent to or received from [I.iggett] that refer or relate to, directly or indirectly, issues involving smoking and health;" (b) "documents ... created by Lathain & Watkins in the course of its representation of [Liggett] that refer to or relate to, directly or indirectly, issues involving smoking and health;" h'Y: 1D05176v1 GEN 192037 Printed: ]0-26-98 22:03 10
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0 (c) "documents ... created by any other law firm in the course of said law firm's, representation of [Liggett] that refer or relate to, directly or indirectly, issues involving smoking and health;" and (d) "time sheets, activity reports and billing records ... created in the course of Latham & Watkins' representation of [Liggett).'! On October 8, 1998, Latham & Watkins served objections to the subpoena duces tecum. Latham & Watkins based its objections upon (a) overbreadth, vagueness, and ambiguity (at Ji 2); (b) the fact that plaintiffs can obtain many of the documents from other sources (at T 3); (c) the fact that many of the documents are, protected (i) under the joint defense privilege or' protection, (ii) as opinion work product or work product, and (iii) due to the confidential and private information relating to individual plaintiffs in smoking and health litigation and their families (at 15); and (d) the undue burden and expense that would be involved in segregating joint defense, work product, and private personal documents from other documents (at ¶ 6). Significantly, Latham & Watkins' objections explain that the universe of potentially responsive documents is massive -- approximately 2,600 boxes of documents that contain roughly 6.5 million pages. (Lathatn & Watkins' Objections at ¶¶ 5, 6, Ex. H hereto.) Arent, Fox has also served objections that include the joint defense privilege. (Ex. I hereto.) F. ara Cornnrntnon In addition, ihird-party subpoena recipient Engelhard Corporation (= Ex. 0. hereto), and perhaps others, may have responsive documents generated by, sent to, or received from Philip Morris lncorporated ("Philip Morris") and/or R.7. Reynolds Tobacco Co. ("Reynolds"), and perhaps other parties, that may contain information or materials deemed proprietary, trade secret, or otherwise commercially protected as to one or more such litigants. xr. iaostreva GEN 182038 . I I Prinledc 10-264822:03
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a & Watlrins' Objections to Subpoena Duces Teeum at ¶¶ 5, 6, copy attached hereto as Ex. H ("Latham & Watkins' Objections").) Patton, Boggs & Blow, which also received a subpoena, was another outside counsel for Liggett. Lawrence G. Meyer moved from that firm to the Arent, Fox firm, which also received a subpoena. (Arent, Fo)es Objections are attached hereto as Exhibit 1.) Josiah Murray III was Senior Vice President and General Counsel to Liggett from 1983 to 1996, and is now engaged in the private practice of law_ He also received a subpoena, as did his present law firm, Newsome, Graham. Because the files plaintiffs seek through these five subpoenas in three different districts contain and reflect a substantial number of communications and materials that are exempt from discovery under the joint defense or "common interest" privilege, the Non-Liggett Manufacturers respectfully apply to this Court, which supervises the action at issue, for a protective order to (1) limit the scope of the subpoenas to remove any request for, and thus prohibit the production and disclosure of, documents and materials protected by the tobacco , manufacturers' joint defense privilege and protection; and (2) prior to any production af. documents to plaintiffs, allow the Non-Liggert Manufacturers a reasonable opportunity to (a) review the documents and materials the subpoena recipients propose to produce in response to the subpoenas so as to ensure against any inadvertent disclosure of privileged or protected material, and (b) create a privilege log under the standard procedures involving the protection of privileged documents to preserve the identification of all privileged documents. Such an order allowing a right of first review is the only means by which an orderly determination and assertion of the joint defense privilege and protection can be guaranteed and the Non-Liggett manufacturers can be assured that no inadvertent disclosure of privileged material occurs. NY: 1003176vt prinled: IO-26A622:03 4 GEN 182031
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NOV 05 1998 12:02 FR j~QMPSON COBW2N 9 314 552 7000 TO 'i' 36705136-9133 P.15/39 regulations make it very clear t[tat, in addition to the privacy protections afforded to all patients by Commonwealth law, individual Medicaid recipient inforsnation is to be protected from disclosure. The Commonwealth of Nurto Rico Medicaid progrem is conducted according to the Medicaid Commonwealth Plan approved by the Secretacy, United StatesDeparimentof$ealth and HumanServicesthwughtheHeatth CareFinancingAdministiation. TheCommonwealthofPuerto Ric o reust remain in romplianee with the plan in order to receive federal finaneial patticipati on from the Health Care Financing Admipistration. 42 CFR 430.'0 9 Titte 42 U.S.C. § 139Ga addresses the issue ofwhat the states must do in orderto participate in theMedicaidprog'am, 42 US.C. § 1396a(7) states thatastateplanfor medical assistance "n=t provide safeguards which resttict the use or disclosure of infoamation concerning applicants and recipients to purposes directly connected with the administration of the plan:' Federal regulations have been enacted to iriterpret this statutory requirement. 42 CFR § 431.301-.307 set out in detail what a state plan must contain with regard to the confldentiality of information concerning applicants and recipients, As a condition of receiving federsl5nancial participationforits Medivaidprogtaaru,the Commonwealthbas submitteda.StatePlaato theUnited States Department of Health and Human Secvices whicb must provide: , A State plan atust provide, under a State statute that itpposes legal sanctions, safeguards tneeting the requirements of this subpart that restricttheuseofdiselosureofinforamationaoncermngapplicauts and 'With each State Piaa the Stata agrees: As a condition for receipt o£Fedsral ftuads under title .LIX of the Social Seourity Acy the ]kperhuent of FTsoaatYServioes (Single State Agency) submits the following State plan for the medical assastance peogram, and hereby agses to administer the program m accordance with tli® pmvisions ofdtis State plan, the wquiremeab of titles JQ and XQC ofttJe Act, attd all applicable Pedecal regulations and other offioial iasuencea of the Aepaahaient. 13 (A G6id' 460325
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r. court to surrender confidential records ex-parte to the private office of a litigant. These subpoenas are null and void.... 904 F. Supp. at 48. Nonetheless, out of an abundance of caution, defendants Philip Morris Corporation, R.J. Reynolds Tobacco Company, Brown & Williamson Tobacco Corporatioil, and Lorillard Tobacco Company ("Non-Liggett Manufacturers") make this motion for a protective order to protect privileged documents from being disclosed in response to the subpoenas. (Copies of the five subpoenas on attorneys are attached hereto as Exhibits B-F; a copy of a sixth subpoena duces tecm issued by the District of New Jersey and served by plaintiffs on Engelhard Corporation on September 28, 1998 is attached hereto as Exhibit G.) II. BACKSL®j1WD OF THE TO 1VT DEFENSE PRiV9t EOE From 1954 through 1997, Liggett and the Non-Liggett Manufacturers engaged in a joint defense effort in connection with pending and anticipated smoking and health product liability actions, as well as in connection with regulatory and legislative matters that related to their common legal interests. That joint defense effort included sharing written and oral communications and materials that were protected by the attorney-client privilege and the opinion work product and work product protections pursuant to the joint defense or "common interest" privilege. Throughout the entire period from 1954 to 1997, various attorneys, either at Latham & Watkins or at two, now-dissolved firms, were Liggett's main outside counsel on smoking and health matters. For that reason, they participated in the joint defense effort extensively. Their Liggett-related files, which they estimate consist.of approximately 2,600 boxes of documents that contain roughly 6.5 million pages, undoubtedly contain substantial volume of materials that are protected by thejoint defense privilege and protection. (S-er Latham NY: 1005176vI Pirnted: 70-26-9821:03 3 GEN 182030
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N0U 05 199B 12:04 FR dOMPSON COBLIRN 9 314 552 7000 T0i636705136-9133 P.19i39 IV. AN IN191VIHTTfAL'S PARTICIPATION IN THE 8'IEI)ICAiA PROGRAM DOES NOT EXTINf:UlSB THEIRRIGFIT TO PItIVACY The defendants will no doubt make the meritless argument that simply by becoming a Medicaid aecipiept, one gives their pemiission for any and all of the infommt"son sought by the defendaasts to be released, efJfectively waiving any protection provided by any of the statutes, regulations or rnles discussed heroia. Such is clearly not the case in view of the clear and unambiguous language contained in 42 CFR § 43I.306(d). The agency must obtain permissian from a family or individual, whenever possible, before responding to a request for informatiorn finm an outside source, unless the iuformatiort is to be used to ve.r£y income, eiigibilityaodthesuiount underseation 1137ofthisA.ctand §§ 435.940 through 435.965 of this chapter. If, beeause ofan emergency situation, tirnedoes notp®rnlit obiainiug consmt before xslease, the agency must notify the family of individual immediately after supplying the information. 42 CFR § 43I.306(d). WHEWORB, the afotementioued prentises conaidered, piaintiffs respectfully request tbat tbis HonorabSe Court denies doftdanw motionto compel. In San Juan, Puerto It9co, this the 28th day of Ootober,1998. Respeatfolly submitted, YU8R2O B.AOO OFiPARTNOT1T OF JUSTICE OtSee of the DeputyAttoeney apreral for]Litig9tima P.O. Box 9020192 San Juan, PR 00902 Tel: (787) 721-2900 Fax: (787) 723-9188 17 GH@T460329
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brought by anti-smoking group to require the Food & Drug Administration to regulate cigarette advertising and sales); FTC v. Carter, 636 F.?d 781 (D.C. Cir. 1980) (addressing discovery issues raised by FTC's effort to enforce subpoenas served on major American cigarette manufacturers in eonnection with investigation into advertising practices). Due to their common legal interests in defending pending and anticipated smoking - and health litigation, as well as their common legal interests relating to regulatory and legislative matters, Liggett and the Non-Liggett Manufacturers have pursued a joint defense effort. (Dobbins Afr: at 1¶ 15-16, Ex. 0 Itereto; Saunders Aff. at ¶Tl 15-16, Ex. N hereto.) That joint defense effort has included, among other things, confidential meetings and discussions between and among in-house counsel and outside counsel representing Liggett and the Non-Liggett Manufacturers; exchanging attorney-client privileged, opinion work product; and work product materials; and identifying and preparing potential expert witnesses. (.)..~d ). C. $ogt Dgfense Documents in 1.nHlam & Wntkins' Files As noted above, Liggett participated in the joint defense effort from 1954 to 1997. It did so in large part through its main outside counsel, who, from 1954 to 1997, were at Webster Sheffield, then Mudge Rose, and then Latham & Watkins. On information and belief, the Non-Liggett Manufacturers understand that the files from all three firms' representations of Liggett now are located at Latham & Watkins. (Latham & Watkins' Objections at 13, Ex. H hereto.) Attorneys from those firms were privy to and participated in many of the joint defense discussions, communications, and other efforts described previously. Further, counsel for other members of thejoint defense effort often forwarded attorney-client privileged, opinion work product, and work product materials that related to matters of common legal interest to Cta ON L~J _P1 ~10 C Gl co ~ iuiooso ic se:x:o3 9 GEN 182036 382036
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These documents should not be produced without providing the Non-Liggett Manufacturers an opportunity to review them for any such confidential documents and to protect their interests. Further, to the extent extraordinarily sensitive and guarded trade secret and proprietary information (such as specifications and formulas for commercial cigarettes) is sought, the Non- Liggett Manufacturers seek this Court's protection as these documents arc not relevant to this litigation, no reasonable necessity has been shown for such documents and disclosure of such information would cause Philip Morris and/or Reynolds to suffer immediate and tremendous irreparable harm. The Non-Liggett Manufacturers have in good faith conferred or attempt to confer with plaintifPs' counsel in an effort to resolve this dispute concerning the subpoenas without court action, as required by Federal Rule of Civil Procedure 26(c) and Local Rule 311.11. Without permission from plaintiffs' counsel, we cannot disclose the details of the conference and correspondence we had with plaintiffs' counsel because the parties in this action have agreed that "meet and confer" communications will be treated as confidential settlement discussions and not be used in court. However, we can and do certify that the Non-Li ,gett Manufacturers have been unable to obtain a written agreement from plaintiffs' counsel that sufficiently protects the Non-Liggett Manufacturers' rights on this issue. Therefore, the Non-Liggett Manufacturers now make this motion. IV. A'RGi1MENT Co A. A Protective Ordc;,Should lasue to Allow the Order]y rlcceEtion oP the Non-&.i2gett ~ Manufacturers' Claims of Joint Defense or "C.nmmoQ Interest" Privileee. Z_ To protect the Non-Liggett Manufacturers' rights under the joint defense C~ privilege, the Court should issue a protective order under Fed. R. Civ. p. 26(c). The Rule ~ provides in pertinent part: Nr: 1uu5n6v1 GEN 182039 Prinkd: 10-26.98 R2!03 12
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a The issuances of such an order by this Court, where the action is pending, is the only viable means of ensuring the parties are nor faced with inconsistent decisions, from other courts, concerning this critical privilege issue. The Court should allow the Non-Liggett Manufacturers a reasonable amount of time to review the documents and materials and create a privilege log. in the circumstances, where Latham & Watkins alone has 2,600 boxes containing about 6.5 million pages, a reasonable period will be approximately seven months. Based on defendants' extensive experience in reviewing documents, a maximum of 1.5 boxes per day can be reviewed by a lawyer for identifying and logging privilege claims. Thai job would take 1,733 lawyer days, which translates into 217 days (roughly seven months), even if 8 lawyers are assigned full time to the task. There is no way to avoid this burden if plaintiffs persist in seeking to require one of the largest non-party document productions in history.2 Iii, FACTUAL BACKGRQOND A. Lnthnm & WafJcins' Reprpsentntion of Li22ett Liggett has long been involved in smoking and health product liability actions. As described more fUlly below, smoking and health litigation began in 1954 and continues to date. Until recently, Liggett's main outside counsel have been members of three law firms: Webster & Sheffield ("Webster Sheffield"); Mudge, Rose, Guthrie, Alexander & Ferdon ("Mudge Rose") and Latham & Watkins.' Those attorneys also represented Liggett in a number of legislative and regulatory matters relating to smoking and health during that same time period. 2 3 In addition, plaintiffs' subpoenas appear to seek many documents related not to this action but to other actions. Webster Sheffield and Mudge Rose have been dissolved. NY: 1005176vt Panved: to•2s•sa2a:o3 5 GEN 182032
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® should not be disclosed without the protection of an appropriate protective order and implementation of procedures that will ensure the continued confidentiality of such'anformation. In addition, Philip Morris and Reynolds seek the Court's protection to the extent these third-party subpoenas seek documents that may contain extraordinarily sensitive and guarded trade secret and proprietary information (such as specifications and formulas for commercial cigarettes). Such documents are not relevant to this litigation, no reasonable necessity has been shown for such documents and disclosure of such information would cause Philip Morris and/or Reynolds to suffer immediate and tremendous irreparable harm. V. C®NCLIiSt®N For the foregoing reasons, the Non-Liggett Manufacturers respectftilly request the entry of a protective order that would (1) limitzhe scope of the subpoenas to remove any request for, and thus prohibit the production and disclosure of, documents and materials protected by the tobacco manufacturers' joint defense privilege and protection; and (2) prior to any production of documents to plaintiffs, allow the Non-Liggett Manufacturers a reasonable opportunity to (a) review the documents and materiats the subpoena recipients propose to produce in response to the subpoenas so as to ensure against any inadvertent disclosure of privileged or protected material and (b) create a privilege log under the standard procedures Nv: mosnsVI GEN 182045 Primad: 1a•26-9822A3 18
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0 hereto as Ex. K; Letter from Kasowitz to Plesec of 1/15/97, copy attached hereto as Ex. L; 3/23/97 Affidavit of Marc E. Kasowitz at ¶ 3, copy attached hereto as Ex. M.) B. Rarette Mflnnfacturers' Common Lega Int rests nnd'1 Liggett was at one time one of the major American manufacturers of cigarettes." Beginning in March 1954 with the filing of Lowe v. R.7 Revnolds Tobacco Co. et aL, No. 9673(3) (E.D. Mo.),5 actions seeking to recover damages for injuries to persons claimed to have been injured as a result of their decision to smoke cigarettes ("smoking and health actions") have been pending continuously against one or more of Liggett and the other major.American cigarette manufacturers, which are (or were) The American Tobacco Company,b Brown & Williamson Tobacco Corporation, Lorillard Tobacco Company, Philip Morris Companies, and R.7. Reynolds Tobacco Company.' (6/19/96 Affidavit of Susan B. Saunders at 17, copy attached hereto as Ex. N ("Saunders Afi'"); Dobbins Afff at ¶¶ 7-8, copy attached hereto as Ex. 0.) Between 1954 and 1997, literally hundreds of smoking and health actions were filed. ` Liggett manufactures cigarettes that are sold under, among others, the Chesterfield and L&M brand names. It also manufactures generic cigarettes and cigarettes made with "private label" brand names owned by others. W hile Liggett had a substantial share of the American cigarette market earlier this century, over time its market share has declined and, currently, its share of the market is only slightly in excess of 1%. 5 The first action in which Liggett was named as a defendant was De.utsch v R L Reynolds Tobacco Co.. et al, No. 33779 (N.D. Cal.), which was filed in June 1954. (6/20/96 Affidavit of James W. Dobbins at ¶ 7, copy attached hereto as Ex. 0.) Reynolds, Liggett, American, Lorillard, and Philip Morris also were named as defendants in Deutsch. (I¢..). 6 The American Tobacco Company was purchased by and then merged into Drown & Williamson Tobacco Corporation in the mid-1990s. ' Beginning with the filing ofFine v Philip Morcis. tnc.- et a1., No. 8740-64 (SUp..Ct. N.Y. County, N.Y.) in May 1964, plaintiffs have frequently named two cigarette-related entities -- The Tobacco Institute, Inc. and The Council for Tobacco Research -- U.S.A., Inc. -- as defendants in smoking and health actions. Since at least that time, these two entities have participated in the joint defense effort as well. NY: 1005176v1 Prinled: 10-26-9822A3 7 . GEi`1782034
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NOV 05 1998 12:00 FR 0 MPSON COHIJRN 9 314 552 7000 T0r705136-9133 P.06/39 of eacb of the thousands of recip ients of health eate RlAded by the Commonwealth through progams such as, Federal Medicaid,lKedioaid O, populations covered under the Health Reform, and Health Insurance for Commonwealth ewployees. Defattdanfs' intention as evidenced by similar motions in this and other Attorneys Geaeisl actions is to try this ease as an individual smoker lawsuit Based on Defendants' record in prior and parallel Attorneys General litigation this is the first of many attempts which Defendants will make throughout this case to "backdoor" the issue of subrogatiou. Regardless ofDefendants' intention or strategic tactics, the fact remains that they do not need this infonmation to defend their case. Irtdeed, Defendants have prepared and defended other Attorneys Geueral cases without this infonnatlon. A. CONMElV3TAI11'Y A>!ID ANO OF PUSLfC HJEAL1H CARE RECIPIENTS HAS BEEN CONSISTEN1'LY MAINTAINED IN THE OVER G MAJORITY OF A.TTORIVEYS GENERAL ACTIONS. To date, four Attorneys Ceneral cases brought against the very same defendants which are parties in this case have been settled, one case is currently being tried and there are three others set fartriaiinthe fn•sthalfofnett year.7 Throughitsspecfial counsel,the CommonweaIthhas firsthand ]mowledge of the facts surrounding the megotiations with the defardants and the coutts' rulings in seven of those eight cases. As one would expe®f, the issue of redaction and encryption of claims data was confroonted by the parties in each of those eight cases. Yn those cases, as in the present case°, the Attorneys General have taken the position that the identities of individual health care 3 8dississipp"a, Florida, Texas and Minnesota all reac hed settlements with the defendants in ihis oase, Washington is currently at ttial and Oklahoma, Massachusetts and New York each have trial dates in the 5ist half of next year. 4 Despite the inability of the parties to agree, in order to meet the Court's discovery deadlines the Commonwealth has already begun downloading certain available claims data for production •• to Defendants. Iufoamation enabling one to discover the identities ofhealth cam recipients and their providers has been masked and/or encryptal cotsistent with the production of similar data 4 d'atiN'46(13t6
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NOU 05 1998 12:06 FR0 MPSON COBURN 9 314 552 7000 T0IW6705136-9133 P.29/39 lioe-54-a5 15:55 Frac-85dTOM IiILLIM 1426 T-4C® P.II/26 P-T63 directly i'tom the New Jersey Adneinisltstiva Codo, 9 10:49-y.7. and. therefore, is wholly ioapplicable in the casa at bars Rather than comply with legidmse discovety teqs:es[s desigped to probe the corz aAegatiotu of the SAC. the Commonwealih aslw thiis Cour< to limic Defendents' diwoveiy to only Those variables the Coioatonwealth itself opts to include in its ssatisliea[ model. The Commonwealth is willing to mleast in€orsnation it bcl'aepes will advancr its own action against Aefendants, but retltses to mJees® infornwtion tbat might enable Defendants to rcfnte the CommonWealih's claisus or impeavh its statislical model. This Court sbould not cotulona such behavior and shoald urder the Colnulonweellh to pYodacc the indavidual recipiertt data Defendants reqtust. 2. The Scope OiDisaovery Ohtainrd In Other Attorney General Csaes Is Irrelevaut One would notmally expeet thtl ConemonwealTlt to arsae why the evadesu,~e ptfetulants seek is not rrasonabi,y calc:ulsted to 1'ead to the dzseovery of admissible evidence. Instead, the Comnaonwadth argues that AeSe-ndanzs should br precluded from discoveting it here because t9efendants did aot receive it in ®ther jurisdictioas. Obviously, the Comawnwasith is unable to explaan why it is Aoj reasonably eatculate<l to lead to the dL4cuvety of admissible evidence here. The Coanu,onwealth avseris that Llefeadatlls "repestedy supolated To the masking and zilcryption of Medicaid and state employee insu=e elaicps dara ..:' and `'have pxcpared and defended other Attomeys GenexRl cases withoui this infannau®n." Comlawnwealth'y Opp- Hricf at 4 snd 5. The first assertion i, wrong, and the secoad sraserla®a ss,itrelee ani s laefemi mts nse(ve any r¢Zw=!e an tGa itkvanae aoNor apphccbitiy ag § 1G:49-9 7 uy the NEw Detsey licigatian ra eot>=eiun wldr qeat liseRarion 9 FAX 086436
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-1 protective order to control or prohibit discovery under Fed. R. Civ. P. 26(c). See. e.e., W.e51 Ppninenla Title c'o v palm Reach County, 132 F.R.D. 301, 302-03 (S.D. Fla. 1990) (prohibiting deposition of party's attorney to prevent intrusion into attorneys' work product), Afd, 41 F.3d 1490 (11th Cir.), cert. denied, 116 S. Ct. 338 (1995); N F ACorp. y Riverview Narrow Fabrics, 117 F.R.I). 83 (M.D.N.C. 1987) (same). It is equally well established that, when entities sharing common legal interests engage in a joint defense effort, confidential communications that relate to and further those common legal interests are protected under the joint defense or "cammon interest" privilege. United 5tates v Sch-wimmer, 892 F.2d 237, 243-44 (2d Cir. 1989), cert denied, 502 U.S. 810 (1991); s1e4Qtd In rg SlTand 7urv Subpoenas. 89-3 and 89-4, 902 F.2d 244, 249 (4th Cir. 1990); Hunvde; v. United States, 355 F.2d 183, 185 (9th Cir. 1965).a As the Second Circuit explained in Schwimmer, the joint defense or "common interest" privilege "has been described as'an extension of the attorney client privilege,"' and "protect[s] the confidentiality of communications ... where a joint defense effort or strategy has been decided upon and undertaken by the parties and their respective counsel." 892 F.2d at 243 (citations omitted). The privilege applies "whenever multiple clients share a common interest about a legal matter" and "it is therefore unnecessary that there be actual litigation in progress for the common interest rule of the attorney-client privilege to apply," )d. Further, "[i]t is fundamental that 'the joint defense privilege cannot be waived without the consent of all parties to the defense."' MNLVforrell & Co, v. United Food & Commun Workkers, 913 F.2d 544, 580 (8th Cir. 1990), eert. denied, 500 U.S. 905 (1991) (citations omitted); accord re Tn-Store 0 The Non-Liggett Manufacturers have standing to make this motion because protective orders may be brought "upon motion by a party or by the person from whom discovery is sought." Fed. R. Civ. P. 26(c). NY_ toost76Vt GEN 182041 Pnnled: 10-26-9822:03 14
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NOU 05 1998 12:01 FR j"[lMPSON COBURN 9 314 552 7000 7O V 05136-9133 P.11i39 defendantsreeentlyfileda"NFotioutoCompelDiseoveryOfAllofthedndividuals WhichFormthe Basis of the State's Claim" in which they'sought to take the depositions of every Oklahoma Medicaid recipient despite the fact that the Oklahoma Court, like tlais Coutt, had tuled that subrogation is not the exclusive remedy ofthe State. Recognizing that such discovery would cause delay and "would further place undue burden az d expense upon the plaintiSs. ..", the Oklahoma Courtdeniedthedefendants'req,uest. SeeOklahomaOrderattaehedheretoandincorporatedherein as F.xlu'bit 10. Likewise, if Defendants in this ease are allowed to discover the names of all recipients of public health care, it will open the fioodgates to a wave of never-ending discovery, burdening botls the Court aad the p atties. 7n addition, Defendants' claiuis that denial of "individual" discovery would violate their due procesa rights are unfounded, as the federal court in Texas ruled, in denying Defendants' request to conduct discovery of individual Medicaid recipients: Accordingly, this Court enteta this Amended Order andutakes thefollowing 5ndings of fact and conclusions of law. 5. Further, the Court finds that the proposed discovery is obtsinable fmm other source that are more couvenientL loss burdensome, and less expensive. Defend8nts have had ample opportunity by discovery in this action to obiain suffioient infomsatibn about the matters in issue. The Defendattts have conducted diseovery relevant to their defenses and the issues surrounding causation and the other fssues raisetl in their Nlotion thmugb iatertogatoaes, requests forproduotion, requests for admissions and nutnetousdepositions. TheCoutttherefotsfmdsthattheburdenandexpense ofthe proposeddiscoveayfar outweighs its 16keRybeneftt, talonginto account the needs of the ease, the amount in controversy, the parties' resources the importance of the issues at stake in the litigation, and the importance ofthe proposed discovery in resolving the issues. 6. Defendants' inability to conduct individual Medieaid recipient discovery docs not uuduly restrictDefandants' opporiunf 6es to rebut the State of7Pesas' useofacoraputermodel developed by theUnitedStates Center for Disease control as an aggregate, statistical epproachto proving causation and damages. The State has produced to befendants all documentS, databases. 9 OWaso3al
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0 at'°19-20 (Fed. Cl. July 27, 1998) (granting motion for protective order on the basis of the joint defense privilege) (copy attached hereto as Ex. P.) The Non-Liggett Manufacturers submit that a protective order should issue that would both limit the scope of the subpoenas and grant them an opportunity to review potentially responsive documents before the documents are made available to plaintiffs to assure that privileged and protected materials are not inadvertently produced. A right of first review is necessary for two reasons. First, the Non-Liggett Manufacturers must take reasonable precautions to protect against the inadvertent disclosure of their privileged documents or they risk the possibility of waiving that privilege. The effect of inadvertent disclosure of privileged material varies among thejurisdictions. &g Bank Brussels Lambert v Credit Lyonnais (,Suisse) S.A., 160 F.R.A. 437, 442-43 (S.D.N.Y. 1995). Under some circumstances, inadvertent disclosure may be construed as a waiver of the privilege with respect to the material disclosed. Seee.e., Wichita I.and & Cattle Co v America Fed. Bank. F.S.B., 148 F.R.D. 456, 457 (D.D.C. 1992). Because smoking and health cases are currently being litigated against these defendants throughout the United States, it is paramount that the privilege be protected in every jurisdiction without regard to any single jurisdiction and/or rule. Therefore, in order to avoid inadvertent disclosure of material protected by the joint defense privilege, these defendants should be afforded a reasonable opportunity to prevent an inadvertent disclosure and possible waiver of their privilege. Permitting the Non-l.iggett Manufacturers to review all materials produced by Latham & Watkins and the three other law firms and Attorney Murray before such materials are produced to the plaintiffs will allow the undersigned defendants to maintain reasonable precautions to prevent disclosure. NY; 1005176v1 GEN 182043 PrimarL• t0•16-96 22:03 16
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involving the protection ofprivileged documents to preserve the identification of all privileged documents. Dated: San Juan, Puerto Rico October 26, 1998 Respectfnlly submitted, Heriberto J. Burgos-Perez USDC-PR 204809 FIDDLER GONZALEZ & RODRIGUEZ P.O. Box 363507 San Juan PR 00936-3507 (787)753-3113 (787)250-7545 (fax) Alan I-I. Kaufman Admitted ']m H= Y1o JONES, DAY, REAVTS & POGUE 599 Lexington Avenue 32nd Floor New York, Naw York 10022 (212) 326-3939 Attorney for R.J. Reynolds Tobacco Co. and, for purposes of this Motion only, on behalf of Brown & Williamson Tobacco Corporation, Lorillard Tobacco Company, and Philip Morris Incorporated NY: 1005176v1 Prln/ed: 1D-26-9822:a3 19 GEN 182046
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Upon motion by a party ... the court in which the action is pending ... may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden and expense, including one or more of the following: *** (4) that certain matters not be inquired into, or that the scope of the disclosure on discovery be limited to certain matters. Fed. R. Civ. P. 26(c)(4). This court has jurisdiction to enter such a protective order limiting the scope and specifying the procedures concerning the five subpoenas on the law firms and Attorney Murray. 51g Keameyv. 7andernoa, 172 F.R.D. 381, 383 n.4 (N.D. III. 1997): Though a protective order under Rule 26(c) can be sought/determined in the court where the underlying action-is pending, as well as the court from which the subpoena issued, a motion to quash, under Rule 45(c)(3)(A), must be filed and decided in the court from which the subpoena issued. This conclusion is consistent with Fed. R. Civ. P. 45(c)(3)(A), which statesin part that "[o]n a timely motion, the court by which a subpoena was issued shall quash or modify the subpoena if ...." Rule 45(c) governs the rights of witnesses, not parties: "Subdivision (c). This provision is new and states the rights of witnesses. It is noi intended to diminish rights conferred by Rules 26-37 or any other authority." Advisory Committee Notes to 1991 Amendment to Fed. R. Civ. P. 45 (emphasis added). See also Fincher v. Keller Indus._ Tnc., 129 F.R.D. 123, 125 (M.D.N,C. ]990) ("With re pect to non-parties and the enforcement of a Rule 45, Fed R Civ. P subpnena, the Court which issues the subpoena is the proper forum for ruling on motions to compel.") (emphasis added). It is fundamental that privileged materials are not discoverable; indeed, under the plain language ofFed. R. Civ. P. 26(b)(1), discovery is limited to matters that are "not privileged." Thus, protection of a party's privilege rights is a strong basis for the entry of a NY= [005176v1 Printed: 10-26-98 22:03 13 GEN 1$2040
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NOV 05 1998 12:09 FR * PSON COBURN 9 314 552 7000 TO W6705136-9133 P.38i39 Nav^04-®® 15:5T From-HUIITOH WILLIAMI 1491 T-490 P.20/Z6 F-7s3 The Commonweelttt fails to taiee ser7oiu opposidon to Aeteadants' due pmcess asge®aent, it is well settle+i that latigant3 have s due process right to YWly atsd fafrly litigate eech isstte in their esm. Amimpg v A=. 38®11.5_ 545, 552 (1965). Without any suppote for its position, the Comacronweettk seeks to preclude 1]efendaTats from fu11y md-fair1y lieigauag each issue iu the oase. The ComraonsvealTh should not be permltted ta cloak Medicaid recipients in a sbmqd of s=recy and thereby esCablish what is, in essence, ati ir[ebutsblz presurraptiou as to %hetpca say health-eare recipieni ever smokcri. whether am altegad smokirag-related iAuess was in fact smoking-related, whether lk&radaxms' aAeg4 torts actually caused the suwkitsg at the 3Unesses, aod whether patticutar medical iro®uneat andd expend'¢turcs were appropriate and xssopable as to any recipiisat and any pausicular condition. Such a r.:sult would be unconstitutional. The Fiffih rtmendme4t's due procxss guaraa[ee reqctines this Court to compel the Commonweelth to provide Aefendaats with aecipient-identifySng informaiicn. Without this ipfoaraaatioa,'pefenaaats will be deprivcd of examiniug the vary evidence used sgqinst thena. Such a procedure will violate petaadAms' :'igtta to due praccss."' ° Aa a mtnimwra the Ccucs musr aUoir dtsceverY of a aWisPicapy ciPQcani rcpr-~nrarive sampic ur' reelpisao-aGeatafying iaformastoa Pesemajnne; ropst ar ua+t;dmve the riBM w'y°sgtrc fi.e wkk Sre °' Thpr Is, if Defrndauts ere ueubnstiwrionally luaird to nmu,Ace} evidense. Thzy wuwt ar Ias bo adlowcd w rake di3couery of n srarL~ncal(v a®led somple afeYaipqmts x, rAar they acay rebur thc Coraraonwsairh's powE FAX 086445
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NOV 05 1998 12:04 FR jjf]MPSON COBURN 9 314 552 7000 TOIV 05136-9133 P.21i39 Mov-04-98 15:52 Frae-HLWTCN WILLIAMS T-4®o P.03/Z6 F-t5S TFIE U1VITfiA STAT6S DISTRICT COUtT FOR THE A1S=CT OF PUERTO RICO PEDRO 1tOSSELLU, in his capacity as GOVERNOR OF ) Tl3BCOMA4ONWHALTH OF PUJ'=RTO itlCO.10S£s A. ) FUENTES riOOSTlNd, ite his mpacity as ATTORNEY ) GENSRAi.OF THE COb1N1OPTWEALIF3 OF PUB[tT0 ) RICO, on bebalf ofTHE COMMONWEA.[.Tt3 OF ) PUERTO RICO, and THE COMMONWEALTH OF ' ) PUF-RTO RICO, ) FlaiatitYs. ) V. ) Civ31No.97-;9;0(JAF) ) ) SROWSV dt WYt3.YANjSON TOBACCO ) CORPORATION ag successor by mcrc8er to TM ) AMERICAN T08ACCO COMPANY, at ot., ) ) Defezuiapts. ) , Rac.Y WMQxAMuntLN &prM 9U ~F~na~r2 g®~T® co-MaL DI~yEay oa UCapWATrPAYnSEar1T JrJFOfRMajLQN Itu WMjLACTS,gAN19 IDNExCRYP'SEI? FORM L introaiuct6on To recovet in This actiwb the Commonwealth must prove thaft scpMtc fundsannentat elements: (1) that Da#'eodanis ase liabie to the Communwralth under some viab3n leml iheoTy, (2) thet Defendeats' liability act3 in}prw the Comm®nweahh, and (3) what damages thr Comanonwreakh suffered as eanuk- ?'he 9nstant naouon is direated at ihe CoraqaonweaWs approach to the ssxond and thiad demenfs. T)u Comuvonwr.aith inteads so prove c4usatioa and dauaages tbrough impmwonat scaisries as r,nslyzed and imecpreted by impzr'sor4 cxpec[.i- !n ozher wocds, thr C®mmonweskh inteads to prove how mueh qsonny it aprnt on tre8tiag °smoking-related ilinesses" tortiously caused by De#'eadaatts without evzc Addtessing or psoving which Medicsid recipicnts smoL•ei. FAX 086428
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NCU 05 199B 12:03 FR yWOMP50N COBURN 9 314 552 7000 T0I*36705136-9133 P.18/39 As a result, the Commonwealth cannot disclose such information and the defendants have no right to it under the law. Masking and/or encrypting the infomtation at issue is appropriate.1' limitednumberoffields which directly identifies the recipient and fields which ptovideinformat3on which the Commonwealth is prohibited from d'isclosing. Tho Commonwealth seeks to mask the recipients name (complete, partial or initial), including fnst, Iast and middle, the provider namq the caasier, oporamr and clerk cade, and the xecord number. The Commonwealth seeks to partially mask the buth date and date of death by eliminating only iho day offbisvh or death. And, the Commonwealth seeks to encrypt the submitternumber, provider seroice number, provider billing number, sEcipient identifiea4ion number, ctuta=t recipient fdantiScation number, county code and Medicare number, On the computer data mpes, there also exists namerous fielda call "filler." These fields may have persenal 9dentifying infomeatioa about the recipient and, therefore, they must also be masked. taDcfendants will no doubt argue that aproteetive oniarwould provide the appropriate level of protection. However, the Commonwealth does not agnee. As Judge Crane stated in this order deaying access to similar infotaaation in the New YorkAttomey General case: Federai statutes and aegola6ons also demonsarate the extcaotdinaril y high degee ofsafeguardswbiebstates mustprovide to nniintaineonfidentiality of Medicaid recipients. ~, e._&„ 42 U3C § 1396(a)(?) (states must provide safegwu& which restrict the use or disclosure of iafomaation segarding Medicaid recipients to purposes directly conneoted with the adminishaHon of the plan); 42 CBR § 431300 (states must have adequate safeguards to assnre that information exchanged by agencies "9s made available only to the exteatneecssaty t®,assist in the valid adnsinisltative needs of the progcam teceiving the infeeenation'); 43 C8R 1431.305. (informationtobesafeguardedincludearea6pient'sname, addurss,medical seaviaes psorided, and medical data); 4E CFIt § 431,301 (states must pravide for legai sanctions to safcgoard the disclosure requirements). - Ratiur thaa easu'vtg compliance with theso elear xquitemeats, a eonfidentiality order would disclose the infoxtnation to and'svidtmis not contemplated by law and would heightsn the possibility of disclosure of personal medical information to others. Such an oaatcome would be contssry to tin: claar laagcage and spirit oftelevant statates and regulations. Se~ 42 CFR § 431.3®4 (mqniring states to explain recipient's right of personal privacy). Fiather, as will be discussed below, redaction of such sensitive mateaial has been appnoved by courts in the Commonwealth of pueato Rico. 16 I GBTi 46028
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0 The Non-Liggett Manufacturers should be afforded the right of first review for a second, and perhaps more obvious, reason. Once any privileged materials have been tumed over to plaintiffs, the joint defense privilege will have been irreversibly compromised. The adversary will have seen the protected documents. No remedy can ever restore the status quo ante. 5-U, gg„ Wichital.and & Cattle Co_ v. American Fed. Bank F.S.B., 14S F.RD. at 459 ("Th[e] information [disclosed] cannot be expunged from defendants' minds by an order from this court denying production.") For these reasons, the Non-Liggett Manufacturers should have the right to review the documents before such documents are turned over to the plaintiffs. In this fashion, any joint defense privileged documents may be identified and protected from disclosure. Such documents may be listed on a privilege log to preserve their identification, under standard procedures involving the protection of privileged documents, and the non-privileged documents can immediately be produced to plaintiffs. Such a procedure allows for the orderly identification and protection of privileged and protected materials. Ii. A Protective Order Should jis_sue to Protect the Non-Liggett Defendants from Relense f Tnfnrmation and Mnterinls Deemed Contidential.'1'rade Secret or Commereiall,y 9ensitiye Currently, there is no protective order for the protection of defendants' interests in place in this matter. Certain Non-Liggett Manufacturers have reason to relieve that third-party subpoena recipients, such as Engeihard Corporation, may have responsive documents to, from or generated by Philip Morris or Reynolds, and possibly other parties, that may contain information and materials deemed confidential, trade secret and commercially sensitive. The Non-Liggett Manufacturers submit that such documents and materials should be protected under Fed. R. Civ. P. 26(e)(7). Sgg Polinuin v. Garden Way tnc . 999 F.2d 527, 532 (lst Cir. 1993) (allowing protection of materials designated, subject to challenge by opposing party). Such information NY: tan5t76vt GEN 182(744 Prinled: 10.26.9B 22:03 17 .
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® Advertising Secs. Litie. 163 F.R.D. 452, 456 (S.D.N.Y. 1995); Metro Wastewater Reclamation Dist v Continental Cas Co, 142 F.R.D, 471, 47S (D. Col. 1992). Here, Liggett and the Non-Liggett Manufacturers participated in a joint defense relationship from at least 1954 until 1997. (Dobbins Aff. at ¶¶ 15-16, Ex. 0 hereto; Saunders Aff. at ¶¶ 15-16, Ex. N hereto.) The lawyers who are now at Latham & Watkins as well as their partners and predecessors, whether at Webster Sheffield, Mudge Rose, or Latham & Watkins, represented Liggett throughout the entire forry-three year period that Liggett and the Non- Liggett Manufacturers had a joint defense relationship, and actively participated injoint defense activities. Accordingly, it is apparent that the Liggett-related files generated between 1954 and 1997 that are in Latham & Watkins' possession contain and reflect a very substantial number of privileged, joint defense communications.' And that fact is confirmed by Latham & Watkins' objectiott on that basis (at 15, Ex. H hereto). The same point applies to Arent, Fox. (S, er Ex. I hereto.) Nonetheless -- and despite the fact that plaintiffs' counsel have, for more than a year in other jurisdictions, litigated the status of privileged, joint defense documents that were in Liggett's own files -- the subpoena directed to Liggett's long time outside counsel does not exclude privileged, joint defense communications. Atl such documents are outside the proper scope of discovery and, for that reason, the documents should be subject to a protective order. Seee.e., B.E. Meyeis & Co. lncr v United States, No. 97-120C, 1998 U.S. Claims LEX1S 177 ' The undersigned defendants are aware that the Federal Rules of Civil Procedure require a claim of privilege to be accompanied by specific information identifying each document. 5= Fed. R. Civ. P. 26(b)(5). Because the documents at issue are in the possession of third parties and not the undersigned defendants, a privilege log cannot be submitted at this time. NY: 7005176v1 GEN 182042 PriniDd: t0-26•9B 22:03 15
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Patrcia Garrity, Esq. Jimenez Graffam & Lausell 421 Munoz Rivera Avenue Midtown Building 5`h Floor, Office 505 Hato Rey, PR 00918 Counsel for The Council for Tobacco Research - U.S.A., Inc. Hector Reichard, Esq. Thomas J. Code, Esq. Reichard & Escalera P.O. Box 364148 San Juan, PR 00936-4148 Counsel for Tobacco Institute, Inc. Eric Tulla, Esq. Rivera, Tulla & Ferrer 50 Quisqueya Street Hato Rey, PR 00917 Counsel for B.A.T Industries p.l.c., and British American Tobacco (Holdings) Limited Adam Miller, Esq. Thompson & Coburn One Mercantile Center St. Louis, MO 63101 Counsel for Loews Corporation Dated: October 26, 1998. San Juan, Puerto Rico. 21 ! V V V I t Heriberto J. i gos PerE GEN 182048
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Oct-26-88 18:30 From-JONES DAY I* 212-755-7306 Ah T-044 P.03 F-044 2 APPEARANCES (CONT`D) For U_S. Tobacco and USI; VICENTE 9ANTORE, ESQ. For Lorill4rd Tobacco Co. and Loewa Corp.: a7. WILI+IAM NEW.EIOLI], ESQ. MA.RSHAL D. BflO1tC;AN, E6Q; COURT RE?ORTER: Donna Dsatwa Condo. Galaxy #606 3205 Isla Verde P,vcnue Carolii3a, PR 00979 Proceedings recorded by mechanical etonography, transcript produced by computer-aided transcripcgoaa GE\ 192050
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NOV 05 1998 12: 05 FR WPSUN COBURN 9 314 552 7000 TO IW705136-9133 P.26/39 Nuv-04-96 15:54 Fram-KRYTGN WILLtANS 1426 T-490 P=O6126 F-163 Indeed, Rule 34 of The Fedet& 1 Rtales of Civil Frocedtav, rrtatiAg to The 4iscovesy and productioa of documents, -is safficiently Qaxibie to be adapted to The exigencies of particular liTigatioa.® Societe jm~,emationale j,'g,ui Pa>ticjpti4fis Indusmdles et omm_eWjals. S,~1 0 zas 357 U.S> 197 (195s). In Ra s Swiss h®bding corporation broqgltt an acdon against the United States government seeking to recover assets seized by The United Stated under the Tiadfng with Tke Fnemy Act. 'Ibe govemtucat defended the aetioo and sottgha producdon of a large number of the records of a Swiss 4aokiaS fum. The dietrict cnsuL eateted an order rcquiring the plainiiff to produce the dooumonts an4 p141ttrifPre#ltsed to do so beeasLse Swiss law prmhtbited, under aimitsa! 3anetioas, 4he disclosure of tlsese records. tJitilmately, eveat thougit tho plaintiff attcmpred us comply wirh the order aad did tcndac a considerable nnaibet• of the doctmeents for the goverauneat's inspection, we disaiet court direcrad dismissal of the action ttttder Rule 37 of rhe Federel Rules of Civil Ptnced+ae #'or nottsomplistue with its production ®rdec. .ahhough the Sopr=e Court revetsed the diasoissal, it held that, even a}tougb. Swiss law prnbibited under crimiaal sanctions the diselosure of the catuested doatnuents, lhe fe4&Al eourt wss justified in ordering the prodwctiom of these documents because tbe plaiadffliad contr®1 over the docntuwis and because the disiriee eosut hndd determined that ihe documents "misbt have a vital in#lyenee" upon the lit6gation. Haro, as in x. °eers pefradauts piavo dr.motstraned a vital need for the individual cecipient inform3tion.= In an apprCpriatv case - as in tku3 oae at bar - ootntra may order the production of documents even in the fueo of ciimina{ sanction. This covxe must - and indted has tke power to - balance The ttezds o{tbe parti`s in ihis liAgation etndprder the production of the recipient data Co 0N = Al~nu~a tqe Sqprane Ceµri rtt I'g= deqls spWifintIy wiM the fsces of thar case, the opiuewn cIear9y L~1 +s9uiscs aouns to hutanaz ep.aeeds ofpaies in lia6tnian. ~ ~I:5 C:• .~_ FAX 086433
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N0V 05 199B 12.07 FR jj,~7MPSON COBLlRN 9 314~:552 7000 T0#36705136-9133 P.30i39 yuv-84-78 15:55 PronrHlklTON YIILLIAI!S T°480 P.12/26 F-753 First, a brief :zview of the majariry of soipuiations regarding ma*inS and cqcrypdon reveals thar Dafendanrs entered into those agreaaents -wiehout eitheT psrty waiving or conceding its position reganding the issue of individual tecipienr discovery and redaceioa." Ser. e.e.. Wassachnsetrs v. Phi4ia Mo ' Inc.. 95-73'I8•9, Qrder (Sup. Ct~, 7auaary 22, 1998) (arrached as Exhibit 4 to Commonwealth's Opp. ar). Secoud, that. Defeadasts may have been pcceluded fzom g•viceeding with recipieur-idrutifyinl; dixovcry in other cases is 3rarlevaur_ 'lAe discovery avariable to Defeadaois in orher eases is not at 6sue m' C and the Commonwealthh is a®t entitled to dietate to Defandants how they should dafned 's case. Furthag if the Connnonwealth's argumrnt is accepted, then itt too, should be IitaitCd in the scope of diseovery. Sf Defcadants are easitled to receive only ihe disc:overy thcy received in orher Anorney General cases, then the Corpmonwealth, too, should be eutir[ed to receive only the discovery received by piaintiffs in other Aatoraey Genesul, cases. 3. The eowusrouweb6ta Mis9'epresentx MarYbnd X. Bbtld A~j~rri_ The Comsuonwcaitlr misrepresents the import of Maryland v_ philig Wrt_,'£, Case No. 98127-017/CI211487, slip op. ai I(Cia. Ct. Baitimore Ciry ®cr. 29,.1997), in which ihe coure ordered diselosqre of ccmparabie recipienr•idantifyin$ infomnation in unredacted and unencrypted form, while ^substanrislly pantect[ingr individual recipients' privacy interesrz by . entering an apprppriate pwteetive order ireaft such iofarrnation "as confidential medicat records." W hespite thd CaAltnonwealtb's assertions to the coptray, sM rv]and, uneyuivoeally was not a-submgation case," thzreby tansiraing it irrclevaat here. The vivl vlan3 court ordered disciosure ofMedicaid data in ftilly unredacted and unen¢aypted fertn after diimissiog the State's 7DeFertdxnfa in this cese ars wiUiag to MKr snta a simdarProieenva ord er or sonSQeadsliry age~mear 10 FAX 086437
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CERTIFICATE OF SERVICE I hereby certify that on the 26`h day of October, 1998, 1 caused to be served a true and exact copy of the foregoing motion for protective order, memorandum of law in support thereof and all attachments in the manner set forth below: By first class U.S. mail, postage prepaid: Philip Morris Companies, Inc. Hon. Jose Fuentes Agostini, Esq. Attorney General Department of Justice P.O. Box 9020192 San Juan, PR 00902-0192 Roberto Marquez, Esq. Law Offices of Benjamin Acosta, Jr. P.O. Box 9023518 San Juan, PR 00902-3518 Paul Husley, Esq. Cherie Durand, Esq. Ness, Motley, Loadholt, Richardson & Poole 151 Meeting Street, Suite 600 Charleston, SC 29401 Counsel for Plaintiffs Edgar Cartagena, Esq. Goldman Antonetti & Cdrdova P. O. Box 70364 San Juan, PR00936-0364 Counsel for Liggett & Myers, Inc., Brooke Group, Ltd. and Ligget Group, Inc. Douglas W. Davis, Esq. Jack E. McClard, Esq. Hunton & Williams Riverfront Plaza 951 E. Byrd Street Richmond, VA 23219 Counsel for Philip Morris Incorporated and Daniel Kolb, Esq. Vincent Chang, Esq. Davis Polk & Wardwell 450 Lexington Avenue New York, NY 10017 Counsel for RJR Nabisco, Inc. Peter A. Bellacosa, Esq. Kirkland & Ellis Citicorp Center 153 East 53rd Street New York, NY 10022-4675 Counsel for Batus Holdings, Inc., Fortune Brands, Inc., and Brown & Williamson Tobacco Corporation Francisco Besosa, Esq. Axtmayer, Adsuar, Muniz & Goyco Hato Rey Tower, Suite 1400 268 Mufloz Rivera Ave. Hato Rey, Puerto Rico 00918 Counsel for Lorillard Tobacco Company and Lorillard Incorporated Vicente Santori-Coll, Esq. Hato Rey Plaza, Suite 2 200 Jesus T. Pineiro Avenue Hato Rey, PR 00918 Counsel for United States Tobacco Company and UST Inc. 20 GEy 18204"1
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NOV 05 199B 12:09 FR 6 PSON COBURN 9 314 552 7000 TO 5r705136-9133 P.37i39 flav-0a-4o 15:57 From^HUOtON WILLIAMS 1426 i-a90 F.1Y/2s F-i03 with the rulns Congress and the Suprcme Cotirt sstablis}s=d for such suits. Amd the Cotntnonwehlth utay not hide behind none:istent privacy eoncenu to thwart iaefcndaats' sliscovrry and defem4e of this litagittion. D. Due Process Requiaas The 38iselosure ®f g8edp'ieut-fdeatifyiaglatfottaaeioa The Cammonwealth does not directly cbaUeage Defrndauts' asstrtfon that the FI13k AateAdmeats' duz process guarantee taandates the disclosure of aaePpient identffyiag utfotmation. Rather, the Commoawea)th merely arguas that rrse•aaehess published studirs alkgedly quaat98ying tebarce-relawct costs "withour exaEainittg such iqtlivislual hospital patient or corporate eoaployro°, Cormnouwealth's Opp- Br. at 2, fu. 2, qud that tbe aaura presiding over the Texas Attarney Geneial suit rejected Defettdaats' due proeess arfyumxne. First, the studies 1'u'ux1 in footnote 2 of the Commonwealth`s brief tlre ircelevarst to tbe issue here - whetharthe Fifth Amendtnent's due process $uarente® mar3dates the disclosure of recipieBt-identSfYiaS ioformaiiop in thts case. The authors of the Commonwealth's lieted studies wete uot litigeuug in a¢ourt of law, were not addressipg Fifih Atuendment rights, and eer[aiuly did ttot possess the powcr to zmiove the cotutitutiaual rights o€these Defend uw. Seeond, thm Texss order did not squetdy eddress the due pcwss issue, and the order establishe3 that the court was concemed about an impetdiag discovery closure date, whinh is not a concern here. See j&,U v_ 26e Ameriesn Tokeeqp Comgqw, No. 5:98-C V-®091, Order at 1 (T:.D. Tex., Augnst 19, 1997) ( Defendaatp did aot'formaUy reduest [his discovery auiitii ... 53 weeldays before the end of discovery°; -Aefendants have made no showing that she individual lv9edisaad reoipicut discovery they requcst eau xasotaably be concluded before the close of discovery on August 15,1997 -). css O\ UN .p. ~ ~ 17 Lh FAX 096444
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! B
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NOV 05 1998 12:03 FR jy[1MPSON COBURN 9 314 552 7000 TO ~(',36705136-9133 P.17i39 history of disease or disability; (6) any infomsatioa received for v®rifying income eligibility and amount of inedical assistance payments; and (7) any information received in connection with the identification of legally liable tlurd party resources. Federal laws restrict the release of the confidential information to one very limited circurnstance, i.e., when the'psupose is directly related to the admirustratiop of the plaa" 42 CFR § 431.302 The federal regulations strictly define the possible purposes as follows: (1) establishing sIigibility, (2) detesndning the amount ofinedical assistanae; (3) providing services for recipients; and (4) conducting or assisting an investigation, prosecution, or civil or criminal proceeding related to the adminisftation ofthe plan. The instant easa'iloes not involve any of these clearly delineatedpurposes. The limitations discussed above resnict disclosure of such confidential information to all requests for information from outside sourees including governmental bodies, the courts or law enforcement officials. 42 CFR § 431.306(e). The Commonwealth may not and will not disclose the confidential information at issue here to any of its experts, Although the Cotaofoawealttr is prohibited Snm releasing identi$ring infotmation to the , defendants, the law allows "the release of statistical or surnmmy information in which applicants, recipients or beneficiaries sre not WA cannot by identified." (Emphasis added.) It is this type of aggxagated summary statistical information that the Commonwealth°s experts will use to make their calculations with regard to the Commoawesith's damages. This information the Commonwealth will provide along with masked or euctypted copies of available data tapes.i~ "The CommonweaJth ofPaesto Rico's Medicaid data tapes contain over sixteen hundred fields of tiaformadoas. A copy of the file layout is attached lure. 1he Cornmonwcaltle has preparod a lina-by-line ' proposal for the data which 9s to be encrypted and masked persuant to federal and Commonwealth law ~ requiring non-disolosure ofrecipieqt-idenpfying informatiion. The Commonwealth soeks to mask only a ON ' CKI 15
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NUV 05 1998 12:08 FR ,Tj~MPSON COBURN 9 314 552 7000 TO ~6705136-9133 P.34/39 Nov-64-C® t8:6s From-HU~VTPN P!I®LL11~IS !42B 7 496 P.16/Ya F-763 concludes, `[bleca+ase of the considerable potauial for euer, The accuracy of tltc ICD-9 eoda3 cotttrtiAed in the State's Medicaid e]airns dats shoWd be verified by reviawiup; Medicaid recipients' medical records or otherwise examining the aecipients thetnselva." 1& at 4. itecent deoisions suppoa the view that caasea sbouid not be l6mited to atatistics and expert generaliries when the iaevitabie result would be to submerge individual issues. 7n lbpa+>asard v. AiCineke_Y2isooaazt Muffler Shons. Ir+c- ~ F.3d Cir. 199u), plaintilYs• brougiu a claxs action againdt Mr.in®ke based on allegatioau of fraud and suBlipat misseptesetstation. At trial, the plairdib did not present the juty with the ciaiuns of any singie elasa asember, but with genctalized evidence. BpeeiftcaIly, plaiatiffs eojoyed the paactical advantage of being able to litigate not on bghalf of 7t+emselvcn bui on bebalf of a'perg'ect p9aintiir pCeeed together for litigation. Blaiutift were allowed to draw on. the most dramatie alleged atis~pria~atPUious made to Mcdtul,e 'ifaochisees, inoiuding those made in final review ses6ionx with $bsena class mranb~e~~ts,~,~ with no proof that those "mL~.iep0.'S6'iltat6qla$" ICa~i1r-4 th.°Pn• : Id. at ~ LquaAY proi'lematic was da: fact tbat Meinele was n®t allowed to iaves[igate The actual individuals wkose ciaieis were thrown togetlset to create the piaintiff's case. i.d_d at _. Ou appeai, the Fourth Circpir held tbat the deEendaats ware entiried to considor the iudividual ®18iaes uaderly'sng ihe ploiAti~ aggropmproof: In aum, piainrf~ portrayed the elass at trial as a larse, uniiled group that sstffesed a uniform, collective arjAry_ And A4nineke was oftM forced to defeud agaiat6t a fictional cotnposite without the benefit of deposiag ox «an-examiiung the disparate `ipdividaals behind The compuute creation. Id. at ~ In ttte end, becausa "ahe class action device pertnitted plaiapfYs to strike Meinelce wath selective allrgatious, which may ormay teoe have been availablc to individual a9taed plaintiffs or co 0" ftapchisees," the lower eoeut's juc8tqeat eouid not sraud. jd, od so In re ,jt hnard (A ~ ~ Cr 14 BAX 086441
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Oct-26-99 1®:31 Fram-.ONES DAY Nis 212-755-7306 0 T-044 P.08 F-044 18 a 2 3 4 S 6 7 a 9 lt:ps ~~ sigaat`ure"; ~ou R arLer Date 0 1 7 .3 .4 .5 .S :0 :2 23 :5 C E R T I B I C A T I® N I certify that the foregoing is a correct tranecript from the record oE procecdings in thc above-Rntitlad matter. GEN 182055
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NOV 05 1998 12:07 FR Tj„(-~]MPSON COBURN 9 314 552 7000 T0IW6705136-9133 P.31/39 Nov-64-09 1546 From-NLWTOII q11LL1AkS 1425 T-490 P,13/26 F-T69 eoiwmon law claims and aUowing ahe State to proceed with antitrust and aoacumer prolm°tion act claims. May-land v "Plulin Morais. 1997 WL 540913 (Md. Cir. Cl'- May 23, 1997). The Slate proceeded with its andttust and eoasutaerptotecrion act daitos without assmtjng ?ubrogaiioa B. Ilefeeedonts Are E2teitled 7C® Challenge The Commowwellltll's Stntbtleal And Aggrogace Data Through imdirid®a! IZteipicat lSisCOvery The Comuloawealtk seeka to limit Defeadants to ihe statisrieal metbodology selected by its own rxperas. Specifically, the Consmonwealth contends that be<.-euse its experts liave deteamiraed tlizy will aot review individual recipient medical records to make Their calcalatieau, Defendarlts should not be pc'rroitled to review or analyze such infonaAdon. Cc,eumonweaith's Opp. Brief at 11. Raiher, thd Co>1uRoawealtb uwintaias that it ib euoug7s for 13e2adants •'to bt able to reproduce and criuquc the results ofthe Commoawealth`s dama6e analysis." J,d, at 1?M lo other words. Iaefendansa should only be allowed t® double-check the ComnAonweal?A's experta' aritbmetie, not peSfoaur an independent an8lysis of puerlo Rico-speai$ic twderlying data or seek to impeach tbe Commonwealth's domages theory through individqslized evideoce, ,s oppoucd to slatisticai data The Commonwealth's positioa is as vntetcable as 'st !s unsound. Ir is a tuudamental tenrt of the advetsary syst¢m that a party has the right to ohallels8e and rebut the opposing party's alleged proof of claem, aud alot just on tlte gcound selected by the opposing party Flnre, the Commonwealth W Tlre burdea of p.roving th4t Defendants engaged in w%OA$fttl conduct c&1L4jA$ iudividUa14 to smoke a71d ConR'de6 diSeSSeS TllaT riSulted in dsmage" to tbe Commonwealth. Well aware that the causal epsin wj19 be bralcen if I2efendants can presaai evidence that (1) Tbe iridividual recipient did not slut or continue smoking because of any wrottgful conduct of Dzfendante; (2) the individuat recipient injurie-a were caused by somethiug ottaer Thala smoking; (3) the iadividual recipient was misdiagnosed and did not have a srnotcing- 11 FAX 086438
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Dct-26-96 18:30 From-:ONES DAY * 212-T55-7306 10 T-044 P.07 F-044 17 a 3 4 5 6 7 8 9 10 11 . I 13 14 15 16 17 18 19 20 21 22 23 25 Go ahead. So you have a ruling. You will have that order. Anything else?. MR. AI+TTONETTI: Jusz to inform the Court that tha parties have been aerving discovery requeat® on each other and everything is, I think, moving along, except for the issues that have been brought to Your 'rionor~s attention. •rHk COURT: very well. Anything else that I should hear about when you set a ne+a conference? MR. MCCLARD! Your Honor. we are scheduled to be with Your Hanor a week from next Friday. THE COURT: I don*t think we need one next week. I plan to cancel that. MR. ANTONETTI: We had one ocheduled.£or November the 23rd; Your Konor. THE COURT: Let me see. Yas,, thatTS good enough. November 23rd. . ~ So I will go back to chambers now, sahile Lhese other lawyerc come back, and I'll enter an order on this issue and I'll figure out the dates and declde what I'm co going to do. Thank you very much. <;1 d~1 (Prooaedings concluded at 10:40 a.tit.D \0 G V V GEN 182054
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Oct-26-96 16:30 From-JONES DAY N`® 212-755-7306 0 T-044 P.06 F-044 16 1 2 3 4 5 6 7 S 0 1 ? 3 5 6 .7 .8 .9 :o >2 d3 E ?5 agreement. And so Your Honor can appreciate that there may be documents irn their files in which we have a very significant interest. For some reason that ha® not really been explained to me, the Commonwcalth refuaes to comply with the federal ru1es and Your Honor's ruling in Santiagn-Lugn that tnat is not acceptable. And I spoke with Mr. Rand earlier chis week. and at least the most extreme p=ob7.ems of deacllines that may have paseed because we didn't hsve nocice have been resolved. So that's why there's not currently a motion. But I should say this i3 a great concern to the defendants, and we may well need to brzng on a motion for protective order- •rHE COURT: Let me say this. The Rules of Civil Procedure tell you how to deal with these thinge. There's case law chat tells you how to deal with subpoena Co power. I will not tolerate any deviation from that O1 Crs model. It's as simple as that. ~ \10 cided not to im In Santia o Lu o I d oee G g g , o p V sanctions. IE it happens after today, I'm going to cake (D" aevere sanctions against whomevcr docs it. And if it's a Stac®Ride attorney, I am going to revoXe h1s authority to practice in thiz court immcdiately. 1C. Hut I will not allaw GEN 182053
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Oct-26-98 18:29 Fram-JONES DAY 6 212-755-7306 0 T-044 P.02 F-044 UNITED STArES DISTRICT COURT nISTRICT O:'PUBRTO RICO PEDRO ROSSELLO, et al., Case No. 97-1910 (CI) PlaintiEE. . Fiato Ray, Puerto Rico October 35, 1998 v5 . 10:00 a.Rt_ AROWN & WILLIAMSON TOSACCO, et al., Defendants. \ TRANSCRIPT OF'MOTION FOR RECONSIDERATION BEFORE THE HONORABLE JOSS A. r'u5TS UNITED STATES DISTRICT JS7DGPs s APPEARANCES; FOR TH_E PLAINTIFFS: PEDRO J. DURAND, ESQ. BENJAMIN ACOSTA, JR., ESQ. CHERIE K. DURAND, ESQ. LEE YOUNG, ESQ. MICHAEL W. GRUENLOS FOR THE DEFENDANTS: Fo3z Brown & WiYliamson. RJ Reynolda, Fortune BrandB, and BAT Co.; For Brown & Williamson. SALVADOR ANTONETTI, LSQ. HATCO. &J Reynalds, RERIBERTO aURaOS. ESQ. PETER 9ELLACOSA,E50- For BAT 2ndusersas: ERIC TULLA. ESQ. For Phi1i8 Morris: JACIC1mCCLARD. ESQ. MANUEL A. GUZMAN. ESQ. 00 Cv\ 0.4 -~ ~ O ~.' BV For Tob3oco Restlarch USA: PATRICIA CARRITY, ESQ. Fcr Liggect D®tendaats: EDGAR CARTAGENA SANTIAGO. Es0_ For Tobacco institutee THOMAS J. COD$, ESQ. GEN 182049
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0 0 C
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Oct-26-88 18:30 From-JONES DAY N® 212-755-7306 0 T-044 F-04 F-044 14 1 2 3 4 5 S 7 8 D .0 a I 1 S s L 2 process to aeha.eving an actual trial-rendy damage model_ We're two months into the process now, and we will say ce this Court that we will ac11l get th:.s damage mndel to you by December 1. nnd thc fact that the defendants now want to move everything back by that amount of time becatlse they apparently think thatt this is a delay tactic on the part of the Commonwealth xs not the case. We will do anything undrar our power to try to move thls case along and to avoidd delay. We are not trying to start a delay here, and we're not trying to create prolilems. It's ]tlst a factor of how long it takes to put the damage model together. THE COURT: Very well. I will decide that this know about? MR. MeCLaRDe If i may alert the Court to a poLential problem that we may have zo deal with down morning, and I will tall you what I will do in writing. Any other problem chat you are facing chat I ahould the line. Therc'e no current mocson on this, but at is an issue of st2bBCantial concern to the defendants. The Commonwealeh has demonstrated a peachantfor 3 > issuing and serving aubpocnas on non-parties wtrhout cD _-Z giving notice Lo the defendants. This started last year-1~- when they issued and served vummons on, I think, thrtc or GEN 182051
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05-h40V-J6 27,02 FRCM=L06® JR t®e79i 724 5g70 PACE 9s19 ~~stY~anpald ~ns sal/pme aaajuxld luaata`~e;o sm~{a ata uc tmaao zm=q atp ~p~Y~3ap~a~sa~mn~p ssa~Srta~paa~~i pue mg ;u ssloueqmo 'iaed p pmft 3® suWA aql Sou&=a vT ® $PAC3- . P= uoft s.w=$'dp=d8 . P= ftguel . mFsO %ao_ w*v Pm iloft L664 `L wa*w s.mse;q mtmds ol grattdrsxg s,alcuusttt osaeqoz g~ ~66t °D£ 5 se~[d jmg vM ffipm*natd 1 poffatsnsad 9ort smmdwp BF£3o i8z 2mm) N v Uaft t&Gt `t ~.~ftv '141mmuI o~cl®~aqt3o ~4t,itL~e ssaassnq t¢~~atTlPne santtxCst aqqt+8`~uK40.a'[ m pnfi~Stia sla~stg paet®nese •Kz~moa gqa ®t iaq'a~aq;o nonsdt~tis~ ai pondwA Apu.l =a j*Ipae aln/tfsni oo!mqot otp ol s.+ate»s taI aat*Aas iecs op paMCi,= mpp;0 4u®~ca V ppape~s stos~te ~t+mda~ o7areqv.L ~~ n F?~dld.~o at~ a~qt tn.~y£ F=dS otri V=m u2od tle4 aowlald i9etpaid *" mllm gftlmnd Mn64m~ ;o =wta r*tq.n e; Ansnptn n»aqsn HSf;o SCtditng it ;a weaa= V Sata+ott®g s ft$ AV-eBttsas ga=fc3&M Pw `oaW4m uoaan _ P" jaPlo I= Uoft G581 `u AInt ~ S.mPQ m-odS ad Tmndoud .mPm'tt ftq=AozP-'o LCr54 `6t wGwt,( 0 Oti9-d 0Z/80'd Z60-1 ~ 9EZ9 EYiVI ~ NOINOH-W~~d 99 Ll 88-OL-^~N
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N0U 05 1998 12:04 FR C SON COBURN 9 314 552 7000 T0#36705136-9133 P.23i39 Yov-04-B5 15:53 Frcm-BINT®N NILLIAFbS 1428 t-49D P.05025 F-t69 Columonwealth intends to rely on sietistics ziRQ agg[egate infotmauon is irrelevant to the issue beforethis Court - whether !>efendsnts are entitled to reoipient ideatifyinB information. Put another way, aLS Def1mWatlts limited to statistics and a&%rcgate information metely becaWse the Commonwealth inteads to rely exelusively upon statistics and ag6tegsta iafomation? No federal or Commonwealth regulation, rule of discovery, or rule of evidence litnits Aefendants to discovery of the evidence the Commonwaalth elecis tu etaphssize. Tha Comwonwealth does not striousby contest Aefendr>nts' due psnceszi ri8ht to reeipitnc- identifying discovery. Its comptete upposition to Defendaats' position is IiAtited to a siaglc case in wilieh the cotut did not squarely address the i-;nie. ISeleudauts' coAteat9on, on the other baod, is supported by a weolth of caselaw umdeftS;tlte releasa of,recipieqt 93cusiiyiuy iafoauiariou 8eoause the Comrumwealth seeks to xecover taoniea it expended utt'recipients who suffer, or who 1,ave suffered, from mbacco-ralared disease as a result of the actions of detondaats; Second Amanded Complaint (-SAC"), 12; Dzfendants h4ve a due process right to diswver and cba3lenge those recipients' 4lleged medical ropditiousm thn causes of those eonQitions, and tbc resulting health care expeaditures. P,eeordiAgly= the Court should giaat Defendants' mouon to compCl. Ii. e>ugwmcnt A- itecEPieat-identifyipg 3sLtort®at6on Is ddelevant And A@se®wareble Et is undispttted that sncipieau-identityiag iAfazmadoa would allow Defendants to ascermin a aumber of important and relcvant nmanrrs, including, bLtt not limited to, (1) on which rnrapicnts' behalf rhe Comrannweslth iutcnda to recover, (2) which of those reoipients ss:tuaAy Qnalced. (3) why those recipients smoked or coudnued ao smoke, (4) whether those rccipienu actuallY sarEfered frdm saw1dng-related iUaes,es, and (5) whether othur factocs caused those 3 FAX 086430
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86349087 0
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Oct-26-98 IE:30 Frcm-JONES DAY N0 212-755-7306 0 T-044 P.05' F-044 15 z 3 g 5 s 7 a 9 10 11 1 1 13 L4 7. 5 L6 ?1 aa :3 ?5 4 four different persons around the 5t3teazde United states. And we didn't learn about it unr.il well after i= had been served and they had been pereon w7lo received the subpoena. in diseuseion with the There was actually a deposltion taken of a woman named Ja.net Hrava, whose testimony had noGhing to do with Puerto Rieo. They were apparently using thart to collect testimony in a case that they had peading in Indiana, where the diseovery hadd clabed_ wn wrote -- there was azx cacchange of correspondenae, where we cbjeeted to this procaas, and the Commonwealth indicated that it was not going r_o change its procedures and give us notice when they issue and aerve a subpoena. This has recently been rasurrected. We received copies of aoven subpoenas last Monday that had ie®ued and served in September. Five of these served on lawyers or law firms who have in the been wr_re paso represented one of the defendants in this case. It's Y.iggett earoup, which is -- I'm sure Your Hanvr knows. 16 not really cooperating wich r.he defondants. So it's a great concern to these defendants because at ima®t one and perhaps othere of these rzcipients in the paat has rePresented Liygett in cases where some of these other defendants were engaged in a joint defense GEN 182052
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NOV 05 1998 12:02 FR 0 MPSON COBURN 9_ 314 552 7000 TO $'2636705136-9133 P.14/39 Consequeotly,Defendsntswi9lbe able to reproduee andcritique the results ofthe Cosnmonwealth's damage analysis in much the same way. nYe FEDERAL AND C®MM®NVNEALTS STATUTES AND REGULATIONS PROHIBIT DISCLOSURE OF EdECU.'IEiVT YDENTEFXIWG INFORMATION Rule 26 of the Federal Rules of Civil Procedure alIows all patties to obtain discovery regardinganymatter,rrrt ri 'ta niee~.whichistelevanttothesubjectraatterinvolvedinthepending attion. Itis the CommonweaRh'spositionthatindividual tecipientideatifyinginforntation, i,e.,Ehe narnesandretatediaformationarenotrelevanttoanyissueinthisease mm Asa t+asnit, this infar®ation is not discoverable under the Federal Rules. Furthec, as wiR be discuased below, the disclosuta sought by the defettdants is strictly prohibited. The governing federal statutes, rules end regulations prohibit disolosure of any patient identifying information far aR purposes, except ia nsrmwly defiael situations where the diaclosutrs areditactlyrelatedtotheadministrationo£theMedicaidpmgiatn. TheMedicaidstatataandrelated °17w Commonwealth incorpotstes bymference the arguments it taade in its:espoose to the def®ndants' motion to dimniss the Commonwealth's entite complaint on the basis that subrogadoawas the Commonwealth's exclusivetemedy. In particular, the Comenonweaith woulid emphasize the following discnssion from that brief, The holding inHedgebe8la compotts with the overall scheme of federal statotes, For example, the Medical Care Recovety Act (MCRA), 42 U,S.C. 12651, explicitly gives an indepeadentzight to recovea.medical expenditucrs from third-party tortfeasors in addition to and apart frem sobrogation and assignment rights to soeh necovery. Se4 e g., Health Ass n ofAm., Ima v. S'6alala, 23 F,3d 412, 419 (D.C. Cir. i994)(citing U..£ v. Theriaque, 674 F.Supp. 39S (D. PQass. _ 19s7)(noting that the ^govennnent's independent right of action entitles it to Aau recovery even ahere (t9m] tort victim's right would be limitadby oamparrtivenegligence")), Ffolbrook v. Anderson Corp., 996 F.2d 1339,1341(lst Cir. 1993)(govemment has an "independent right ofrecovety against the tortfeasor" whieh is "not defeated even by cerlnin restrictions that might bar the injuredpe:son's own reeovety'); Merrlgara v, MeA'leney, 389 F.2d 21, 23 (3d Cir,1968)("Sabseetioae (a) oftiteMedical Care Recovory Act unmistalmbly confers on the government what the congsessionat reports deaxi'be as an 'independent right ofrecovery' fmm Hie tertfeasor of tlee reasonable value of the wte and aeatment it furnishes to the injured person." In view of the above, the individuaiizc "prooF' the defendants may argoa they need to attack the Commonwealth's claim which does notsowtdt in subaogation, 12 GEtJ' 460324
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N6V 05 199B 12.05 FR T~OMPSON COffi1RN 9 314_552 7000 TO #36705136-9133 P.24/39 Nov-O4-66 15:53 Frc®-HOSTOH WILLIAkS -1420 T-d90 P_06/E6 F-T63 iRaassees. Surely, such materxs ara relevanl in a case in which the Commonwealth seeks reimbursamant of wonies it spent on "m:ipiaus Who sut)er... from gobacw-related diaease sa resngg, of the acrieaa, of defendancs." SAC, 12 (emphaeis added). ' Wt?ndants at'e eatitled to datermine whet}rzr the Couuttpnweahh sqeks recovery of any expeases tLai were not °as r s of The acuog~of_$dgtidAM:' RncipioAt-idenrifyiug infom=on will heiP Aefendenis dp jus-t that. Witbout recipiant- jstentiij iug discovery. laefendatlts will face a vinual itrebutable preyumptioa as to a number of mseters, incaud'ang those noted above. For example. uader The Commonwealth's thcory of atiseovery, pefendats>3 will be ptevented &om learning whether any tccipient for whom the Comutonwealih seels recovery. (1) smokrl, (2) did ?+ot $tari or aontitma smojaag because of Aefendatus' allegeq waongflil eondqct, (3) 4id alot suffer a xnolsia$-telated illness, (4) Were were other causcs of the illness not attribuTable to ikFeadauts> or (5) received healrlh aare that was qnnecessary, inappropriate, or the te3dlt of ftud. Thesv issues rely upon indivuiual recipieai evidence, thdraby necessitatiag recipient-iAentiiying d'ascovery. 1. mefeadwts 1vYereDy Seeh The 8iglst To pefRnl4 The®se9ves Yn Tltis L,itiga46ou Rule 26(b) of ths Federal Rules of Civil Ptviceoure provides that paa[fgs may obtain discovrry legasding a,a3y raatder. not privsleged, which is relevallt to the subject mattrr involved in the pending action, whether it relates to the ciaim or defense of the party sexling discovery or to the claim ot defeusr oi any ogwpanY .... Rule 26 is clear that the oq(y legitiesats basis upon which a paray may withhoSd retevaat information is upon a claim of privilege - a claim the Corrunonweahh has not tnude at any tirrn itp this litigauoo. 4 FAX 086431
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NOV 05 1998 12: 06 FR jjdQMPSON COBURN 9 314 S52 7000 TQ #36705136-9133 P. 20/39 Nov-84-i8 iB:B4 Fro®-AWITON WILLIAns 1426 T-490 P.10/26 F-t83 dollars frotaa defendants slwuld not be ltrard to coasplain titat t3acsa defendanrs' efosts to discover the basis for tlat claim migut be expensive or timz-cotasuouing. Additioually, the Comatonwealtk's potidon reWdiqg $te eeleest of recipient data is inCon&IYtenj. jnlfially7, tlle C9ntnloIIweealtli Gladdqs tlaat DARdBi' t13e Code of'FedC`FSl Rept71c3ttons ("CFR'7 it mast `g&Wuatd" cesrain data including not only the naa>es and addressea of tbe individual reeipirnts, but also, inter ' infotmation aegatding medical setvices provided ausd orh«:r medical data (inaluding dia8noses and indiv9duad's pasK bisaoay of diseage or disabiliry).4 &g. Comuiouwealib's Opp. Br. at 14. Yet, altlton2h ft Comtaoawealth sRidondy maintains that it'°carmot" rolease tbe uamas of individual Med'acaid rseipieats, it stands teady to r®lcaso medieal sad diagnostie dars to its owrr expetts for analysis in an effort to obtaia billionS of dollars in alleged damages fmaa Defeadanis=s although the release of this medical information is it,compatible with the Comuwnwealth's professed duty to'•3afeQUard° such in,#;uma.tion, the.Cotqsnoaweaalttt defends its positioa by arguing tAat -zhe law allows the relPaw of statistical or summaty inFomtation ia wbich appDicants, recipients or bene$ciaries are not and eaanot be identi#ied."' Comaa4nwealth's Opp_ $r. at 15. The Cotuuxonwealth, however, cites mo attthority for this alleged ~law^ - not a easa, not ft CFR. not the tJultad States Codo, not a Puerto Ttioo statutr- lndeed, counsol cannot eitz w nny autlhority fnr ahis "law" bacatlsa the quoted lapguaga is taken `Tbi.e da®, howFVer, may be teleaYed afkis far a puapose ditesdycoenested wadl the adwincsFrauan of*e Cou3Mu+nweali6'w MedBca,d proFjwu. nv discussed, jnfik ft rUind-parsy su"u srcms dtteetb fronl stu Couunoawcahh's admiipimar'sqa oF7he pWn. i Indeed, 6a fomonrc 11 of'ua brlef. rhr Commoawcalrh oaAy tuoposea maskiog or eocppdrea dusen relscut w IndiHdual recipleaW Piuir ptoveders, anqror carrjers. The CuAimonwealth ®aer nat adwocate roasWg or enaypdag me4Kt1 dam. 8 FAX 086435
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NOU 05 1998 12:07 FR ~MPSON C08URN 9 314.552 7000 TO 1#36705136-9133 P. 33/39 Hov-U4-85 15:58 FramrHlWtOH 11lLLIA145 1426 T-4i0 P.15/28 F-753 the lower couats' decision, rciteratiag tbaz "suy statistical evideacs produced by plaintif is subject to revuttal by the cmployer." A Thus, the o r dafzndants were not confined to tbe steustical theory advas+ced by plaintiffs r.atd were rrerminad to go beyond mal3umutical ttsvzy aud imptach plaintifFs' alleged stzuistical proof riuough cvidenee of plaiatiiTs' tailure to sntdy. Just as TLe Controras defendants imroduaed testipt®niat avidsnce relati.ag to tl>z piafntiffs' failure to adequattely prepate for The examitation, sa should Aefendants here be allowed to depnse iadividuai Arle4="d recipients aad inquire as to their medical hiswriCS and reasons for smoking, araong other tbiags. Because she infotmation obtained from individual secipiexits may well tutdemtina tho Commonwealtb's cold statiseical model. AeFeodants are entitied to pucsue this avcnue of diSCovery. Sea also &pmraa v- Young, 535 A.2d 936 (1988) (dW'endant RUowed to iaerodure noa-geneae evidence in effor4 to impeach or ^eountorbalance" plaitatift's sta;istieal evidence ofparesnity). For example, although the Comatonwcalth's faalure to ptnduee its damages model on Occober 15 prevents Dc'feadants from kuowins tAe exact bases of the model, it is more thaa likely tbat tbe Comanonwealth will brise i>e claim for billions of dollats in dameges on computer data that is fraug4t with esorr- See Afl'idavit of Ds Aaber[ D. 3/ethslen (attaahed as Eah. ~). According to Dr. Verhalen, computerized Medieaitl ciaims datn is "ofrea subjetT to caror." Verhalen afF At 4. in fnce, one sTudy srpotss that '[s]oau &spwau of diagnosis coding in Medicaid pose mqjor problems of t+r4ia6ilitp aad completeness:' Rosalie A. 13right et at., 82edieaid para a3 ajieseurce for FeidernioloqjW 3mdies• Strenstbs f1Pa1 LimlcatinlLa 42 J. C1iF. 8pideiniol. 937, 942 (1989) (attac.hed as Fixh. -). This same study reports that other researekets have found ihis cosopuoerized elata - the same type of dato on which the Commonweslth's experrs are 3ilcelY to rely- to he_wro o 60 ~!® of rh time. Verhalen AfE at 4. As Y)r. Verltakn 13 FAX 086440
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NOV 05 1998 12:06 FR 0T.WDMPSUN COBURN 9 3141552 7000 TO ~36705136-9133 P.27/39 Nov-04-86 1644 FrwrHUXTO PlILL1AMS 1426 T-4B0 P•o9/ZS F-T63 The Court ruay suike an appropriate balailec by ordeting the Couononweallth to produce racipieaUidendfyiqglraforata lioar and requiring Defendants to mairatein the aottfidentiality of that infonnation tlwugh the muy of a protective order. The Commonwealah's concems about the psotecting its secipienw' Corrfidetaislfry cais ba aileviarsd adequataly tluough the eouy of an appropriate protective urder. in tv~land v_ Philip 1vlarris. Case No. 96122D17!CL2i 1487 (Cir. Ct. 8altimore City Ocu 29, 1®97), for example, the %,ourl ordered the disclosura of recipiens idenut;ios intormaiiop and protected tbe recipienu' cowtidentiality by issuing a prntr,crive order tmating The infoaaacioa °as confidential medical rezords." 1he Commonwzalth advanczs s red hesring argumeat by su;gcasifjg rbat DefeadanTs seek cecipi¢ar-identifying information a+ "d preeutsor to Umittesx discovery." Commonwealxh's Opp. Br. at 7-8_ The Coromoawe611tb, not Ae fent]ants, established the scope of pamisyible discovery by Wieg a complaiaT seelciag billions of dollars 4om Aefeodants and directly implicating individuAl recipieat infora>stioaa. Tho Comt4oawealth does aol dspute tuara it seel;s "rauabursemeot foa all monies paid ... to ... health caoe re¢ipients wbo soffac ...&ooti, sohacco- relaaed disease a3 x rosult of the actions of defqndants." SAC, 12. This BSiSt seeks reimbursemesu for =ipients' al eeed smoloaz-related it ++pz es. ,4scordiugly, the recipients' medieal coadiTions and reasotu far smoking tsre ceLlpal to this suii, ihereby Sequiring The disofoslue of recipieai-idcatdyia& iAforspatioa' And a plainTitl:' seekiaeg to reeover billions of s 7be Coaunonwralpi does nni dispum tbxi9efnidsms are mqcled co a reAuction of dernages Proporaor>au to z4e.eowpnranve neglywo of tUe 7njured pasty or pes[era DeFemdants aar +mrkleq to slww iha1 che smokers sm whose belu+lf slte CommDn*aakk alkt4y 6pa1T oioneys wetn compaea{6veb Aer3135e0[. if i9efenrWnes so prove> We jury can raduce atty awec4 in proporsioa ro Ihe oegligence of ubc u Jl;rod pnY[Ies. ,4caoldiagly. rteipreni idapcfying iaiarnmaion as relevanr and disooveaable. o 0\ c.,v -p. 7 FAX 086434
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NCV 05 1998 12:07 FR ~MPSON COBURN 9 314 552 7000 TO 0 ~936705136-9133 P.32/39 3ar04°30 15:55 Prav-NNIi1k1 WILLINS 1423 T-4®® P.14128 F-7S3 related disease, or (4) tbe health caro pa9d for was unnecessary. inappropriate or the result of falsud, The Conuaoaweqltb geks to Ae Detendants to its owa statistical tuethodology. Defenddnts have a rigtu to conduct discavary of the individual recipients to re2iue the Commonwealth's claims. Neither coiuts nor Defendants are "obliged t® asswne that plaintifPs staiistical evidence is reliable." aisnn v. F,M Wo 9ank and Trust_ 487 U.S. 977 (1988). $cie sso Doathsrd v. RawiinReoa 433 U.S. 321, 331 (holding in 7itle V1E case rhat "if the cmployer discexms fallacies or deficieu:ins in ihe dals offexed by the plaiatiM he is free to adduce countezvailing evidence of his ovrti ). 5ee QRn IAzat 338-39 (Rehuquist, L coacurrusg in result sud cor,ceuting in ,part) (%f the defendaots in a Tide Vli suit believe tbere to be any reasott to disrLeeiit plsintifFs' statistics that slnes not appcar on their face, the opporluuity to , challenge them is available to the dcfeadsnts jast as in aqy other lawsuit. Tluy may endeavor to impeach ibe reliability of The statistical evidence, they may offer refnting evidence, or they may disparage ia eergaments or in briefs the probative weight which tbe plain>i$'s" evidzace should be aceorded"). fmplicit in this holding is the right of defeudanu to puspe discovery in an efforn to refute a piaittWs claim. C~onQeras v. l.os Anacles. 656 F.24 1267, 1273-1274 (9q1 Cir. 3981) is 9asnvctive in this eonteAt. in Contrexas. iwo former sit)' aecotmtaots broqgAt a Tide VII action aeaitLst the City of Los Angeles alls gaag that a cavii service eaaaniuadon unlawfnlly discriminnted aSains Spauish- surnamed applicants. In support of thoit claims, plaintiifs set forth statistical evidznce of d'iscsimiaetory impaot of the examiuatioa Id. at 1272. To impsaeh plaintiffs' stlttistiaul data, ckfepdsuts introduced a stareulent from 4 city official describing a raectiug in which The accounqnts admiWed thqt they tailei to adeqqat¢lY prepare for thr el' +fieAnon. ~. at 1273. The district aowt rejected p[ainriffs' claim, at;ad plaiuti2Ys appealed. The Fifrll Cen:uit ai2iamrd 12 FAX 086439
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NOV 05 1998 12 :05 FR # MPSON COBURN 9 314 552 7000 TO #36705136-9133 P. 25/39 tlev-D4-95 15:53 FrarMl6iTON WI6LI?A1S 1426 T-400 P.OT/26 P-763 Lfonetheiess, the Cotnmonweatth wrangftilly continues to withhold inQividuali2ed recipient data tbat is hiri73y relevant to Defenddants' defenw in this maa[er. 'Ihe Comrttonweahh's desire to prevent Aefeadaats from defcnding tkemselves in this acrion is ror sufficient grounds under Rnle 26 to wirhhold infotmAtoon. Given the pasamesers ofthIs {idgation and *r amouut in conuoversy, the individual recipient information AefendaLts request is crucial to tlie resolution As snch it sbauld be paoduced of tbe issues iA this l'atigadoa ' There is no question that the Cammoawealth lws the burden of proof in tbis action. Given the scqpe oftW aDtgapons in ibis ease and the biuions ofdoltars in controversy. j}aere is likewise no Gjuestton tteat Defentlanta have 4 riAt To dAo31A4 a dofease and ChiblleilP,C the CornJAOnwea7ddh'3 claims. The individual r,ecipient daui is relevant to both earcya.tton and datnages issues - and very likely will )cad to informai7on rhaT will refitte The Cosausoaweaith's s[aaistical ulodel. The recipient infoauiatqon is diroetlq 9n the ComtponweaJth's control and could easily be pro$aced, but for the Commonweaith's ouWght refusat to produce it. IDe*ndOts should not be prtvended frotn obtaining infotmacion oruaial to thair defertse metelY beeaase the Commonwealth wants an cmfair advantsge in tbis l"itiga[idn. Given thC vitai iu,portauce of the iaaaividual recipient docunuenrs to tUis litisal9on, The Commonwealth's claims tbat it might lose federal funding or be subjected so penalRes" fnt pzoduciag the iufotroaoon are auafotusded. The legal sysaem is not designed to punish defendanls when rheY liave a legivmate need for documenis - panicularIy w.hen the party initiauag the lawsrut is The party in possession of The very docurueuts needed to zPbut their clairqs. 00 ' Likewml, rhe Commeoweeltb bas swt saggesied that rdv mdivicrosl spee,lic xclpiene discovnry w®utd be 0'\ ®ourupuive. dupGcapva. orobralmable from a mara coavenun or less apoosive sosuee. w -R ~ O 4r, W FAX 086432
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N0V 05 1998 12:08 FR P58N COHIJRN 9 314 552 7000 TO ~236705136-9133 P.35/39 ® . ' kcv-64-88 i6:66 From-HI1fT0.9 IYILLIAVS --1411 T-466 pf17/26 F-768 fKOrpoM "og~n. 893 R2d 706 (Ss' Cir. 1990) (holdiztg lower court's eforc no streatnline consolidation of 3,1100 asbeMss cct= by adopiiag sa aggregate approaeh to ia.jury, cau3ation and damages submerged the very iudividuat claims and dcfeases that weto w be tried). In the iastant case, as in rhe Commonwealth seeks to limit The trial to st8tistiu.'s and expeis 8,cacraiitles. If the eomtaonweaith haa its way. neulu:r Defendants nor the,jury wiA ever see a single Medicaid secipicnt, leAm Aboui the prior medieai and societal histaries of the recipienu. or haar The tesiiaAouy of a single lreating pdysiciaa- Rather,lka Commonwealth seeks to introdttoe statssties of a"perfect A4edicaid reeipient" and force 3?etzadaalu to dofead agaiast tyat ftc[ional olaitn without enamining the real peopie underlying the ol.qim. Defendanis have a iaght - and this Count has an obligation to enforce Tbat right - to challenge The pases of the Coaamoawealth's stalispcs and ag8regate data as they apply to i'uerro Rico through uldividualiaed discovery. C. Neitber FedeastlNos Puereo Rico i.aw Prohibits The Alsclpsure Of R,ecipBenP 3deaBifyft Itetorpnatiott.lD This Actiua The Cotqtltonweak8 aaYnowiedges that federnt law allows the release of confidential iofomUlrioa when the'pwpQse is diizctly relatedto the adatuii§iratioa of tbe plan," such as when the govemauat is ooAductmg or a>siatiag an "invzsp@ation, ptosacuaion or civii or`ctiminal proceeding dirnctly related to the admitusuammon of tltie plan." 42 C.B.R § 431302. This actioR cleardy pmpgrt% mW a-oivil proeeesliag -.. reia0.+ii to the administra4ioa of The plaa" and is therefore "dizeeny related to plan adtrdnisaatioo." ft i'1~ an dlan slip op. a; 1. There can be no more fnadaneatal a3peet of plau adm9aisuatioa than fitndiag. This is an acdon to n.aava° billirm of dallarn in 1'vads for the adtitittisteatiwl of the plan. The Cotnnwnweelth does nor seriously rebut this poiat, talegating its argument to a single ooprdusoay scat..^nae without any 15 FAX 086442
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I NOV 05 1998 11:59 FR SMPSON COHIJRN 9 314 552 7000 T0r6705136-9133 P.04i39 Moreover, the following are just a few examples of the studies conducted by both the public and private sectors which qusntify the costs imposed by tobacco without exaznlHing each individual hospital patient or corporate employee; Lutr.Schwslm;~'JAeF<wnmieCmpoPSmatiuy¢Dp1a~lIBrc15•H-tmuuueo ®NICAbine.Dir.aLReeaeh.GoxmWat5tir~0(lfwDR73Y327. I977. e~cr,Snweisav. •ssotiuyaoaNmha nbucc aQ-Mdm aemdreawomicCae~au~e.'N. e^cl°^dx Meeleix. val. x9l, No. e0. va s69-nl, Mwd, 4. i97¢. . os9~.CuW(6s.Rdly.~trC.. ~unelSmdrinwaMgcsefi nn,~(fef 'lpy~,tmf~Wp$na)c;19K . 'Smo39ngPdu!4DwhsudFwCYW Cacb,">KOgpldOp' ol&e ota°s6molo)mA~.ScpiaMa 19a3. Rtce. wayuy8fu5dm°r.emrna. Kapaeio,'nmF.e~wuleewmorumHdw ERsn crsmotieS.19s1,-b171h*+t: amnee,lv, VoLSl,lro. app..e94n. 1976. Lew.CwAidsL'6711vmcm indieC+YuYud lq7periqr6y StyS~eiwlgF6tib W iWfd~SWw.°SOdenafAcourissTva~eiiur,VUl.a717b7~ 19C7. Nswm~se. Maiwng dsaMae[sl~o; tmlbawiq MuQmc 9o~en. Dnfre.takr. Wue.Btmk 7k FWA7ep afdmAsadHW~h Ls~smFapelmmrt.A Rcpiensnm Wok60.d,' MNiwl LNe. Veb 13. P}a.;py.167-279.1~6om~y 19i7. OsW.dsleo~CW~~RAaZnuiS~lcYlpBDmiufR~rrcYU9E>IpmdlummNeOw>blf~ialt6G~G'M+.f afPlCVen6veMedecGu.Vn1.f,HaA,po-2l6 114.1afd st.1¢NOwa~7.Rias'8mokiniMnbur9la MwmMir.Ma6idiy.wdFwfaNe Cads Cvmpimr3cRwuouk'i.=mpdoa' = Api11990. BAWKHvlmm.Newm}. RiGR'lhef7itrsedfnpaeefCigA~eSam7ARglaA~btOW 1986~"~.d~hr5eumh ~Cteknnm onTa6.¢mand Rm1.M•nPei714 199P.Autlk WenemAumelie.pp.OLi4L yl~~.'QirMiirymxmeDisuseCmwDUfCWefleSmokfu~.7dISM1MiCJ[SoM+ie,"~Nrexdhh'(1ei.,g,Yd196,Nu.3.VP3zs 4,&~.14e%,7ha lb~g[a~paHnein Glifmnib 19$9.$utammc,CAt CdWdsStk.Depu~p6ofFkatd S~ssiwi 199L atod4>IU. T, °~ Smatln6 %ot atfsqme nTdta9 E~oasueq' 8.imem.h u~~e~eeb. va.7n, rro. 4 J 99s P4lllqstto~d471pv~L'ChoCmbelSmoNnBHericircd•N, 7rsl:nd A7adira9JO~ra1, tp;d96167,Jme TA 1892. ., Hwdf®4Ntxiu.IS~Jdet.9moMyqRqbbdDmlhseodFGqiRialCoW:otAFRImWp8u19996JMeSawWSpaia9CqnmiaroenAEinL.Haw blgeo . l~ceendreHaeltl~NtOYKenPP¢rqi+ICUSevma[ftl1MdMG~e,Mop6,1993. MAle,Ri¢,Ma ,Nmw4q.'Md7dGeeYs~dfO~+AmrlabhlemG~tbSm$~-VS.E99LMJf5oda3epytkroiPdreBWbdn~i~pmemtmd Fipo,dUmeOanmcw.nDcallc[M~ayr~hpspndA.CDCAV~uiA149f, _ . hl:d'ied Cpta&qkpGduesAm~utmlelo®guctmSmvYlq4-Up~dSpS~,17JA°~ JWY& 6991. 8wdatChlllk5AiR Nee, "Me~leuvi~rmoneribwNem dy~etpSmddii@Vrv7el31.W,'~ Vm.i1.4b.1b.7R~73.199A Ri~ D."QpotleYUey?alatC.+~poLV; lYSPMb~~etlnba9iqetGil4Ud~, 80aFssixq CA,NtwnEq 19961p.363bSJ.195M. A/~Rloe,'IL.CmEfSmoke,~tefiGksNC1993.'Sateaamnwl.VOb4,SiW /rFW"f(s1949. Wt6h,0.[y,i~ro~'[irF.mmmtctmdHmpaaCaWOfSqoklABlahtlmpp,a.'MimvimeRe~YUL7;~.19•XApti1199i. 6GIteqZh.~Jkro~ RECe.Mw9uGetr."tvslu>v6el?iwp9~dka16mEepwtioswAte~+ohbkma~p~G~m10e=A9Pb1o6mJS. Aki~id.9s AlACi Cb~sl~• 4Jowa4a 9793. Wsrne:~ttCwkMaWa,KelSU/nNoraay,Sd.tilm8 Ta+mw4'~++~ppmsidrraAo0p6sm1Ap/cnc'r.c9MSoamhh fbepedlM~ Td,.~MveiYd-O,4tad.pF3I43ISWmr19AS. . _ Ly~A,eaptfnf."E+WntfasT~.emAd~mdAwltkCee.~a3MpWayCmlelsFluidr,' .1 PI~daM.A.Yd.o<3.No.2,tFJ7&1A.Fdnwy199fi. A@Wlimw ~nt7dwlth Risku~ 7Aeizha9uuw Nedktl Cope' uWV Egiouw nPh4dtoaf F~esiWnAt~bub6kroGp~ehe6muHeyFUn11?u 1993,°raplie Fiafih IBsemr AducNAp1771990. VsL a13,pplald 15L 'SddmEW~ ctTadpladEayelLUw Amiyub4!®pIClgarcemSmalRtg,1993: PublieHnhhRe~68rywr6WAqo5ad9S7.Vol,1J3.pplR, aS GSN q6Q314
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rrGm-JU/YCC UAi _Rl Oc5-28-88 18:33 From-JONES DAY N_Y 272-755-fnun 272-755-7305 .~ -.r I. Aefiaitipns A'$'TACFIM1VT A T-D44 Y-)IJyY r-yq4 7-D44 P.)7199 F-R44 1. "Documents" shall be coastaued in accordance with the tttcaning ascnbed Io it in Federa; Rule of Civil Procedu{e 34(a), and shall include any documents dated a#iea 3arsuary 4, 1954. 2. Patton, Aoggs & Iilqw meaqs ineludes the paescnt twme of Patton, Boggs & Blow, any and all previous names ar3d business forms, successors, predecessors or reformatiotas, as well as all present and fotmer attomeys, partuers, sbarepolders, professional coiporations, professional ussociaTions or partaterships of any som offieers, directors, ageuts, seivants, managers, members, employees, staff, analysts, insurance carriers, consultants, expests, invesiigatars and other persotts or fums acting or purporting to act on behalf of Patton, aoggs & alow. 11. Aocumerars soughY Bo be produced for iuspecdon and cupyiag 1. Arly and all doeUMCMts in 1°auon, boggs $k 51ow'a p®sse3sian, custady os osuasrol a~nt to or received from I-iggeti & Myers iru-, Liggen Group Isae. or Brooke Group Ltd. that refer or relate to, directly or indirrcily, issues involving ssnaking aad health. 2. Any and all documents in PaTton, 8oggs & A]ow's possessiotl, custody or contral that were created by Patton, Boggs & Blow in the course of its representarion of I-iggelt & Myers Inc., 1-iggen Group Inc. or Brooke Group Ltd. that refer or relate to, directly or indirectly, issues involving smoking and health. 3. nny and aA docuraents in pattora, 8ogss & alow's possession, cusiQdy or control lhat were created by any other law firnt in the course of said law $rsat's rcpreserttation of Ligge4t & Myeas Inc., Liggett Group Inc. or Broolce Group I-td. that refer or relate to, dirrctly or irulirectly, issues involving smokirtg and health. 4. Amy and all time slaeets, activity reports and biliirig records in Pattoat, Boggs & Blow's possession, ctutody or control created in the cottrse of Patton, Boggs &$low's represeptatioa of L(ggott & Myers luc., Liggett Group Inc. or 13roohe Grottp Ltd.. These time shoets, activity reports and billing r®cords should include, without limitataoss, ahose of Lawrence C. Meyer and Linda El'az>abetlt Auek. GEN 182060
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Oct-26-96 19:32 From-JONES DAY N Y 212-755-1306 7-D44 P-141BB F-D44 ® S _ ,~_1lMT&A S'G9Z1rS OF AIvT-RICA TN Ta GF-NFg.qi.. COURT OF lUST1Cfi ~F_ASTrRRN p1ST1tICT OF NORTIi CAROLINA ~ DISTFt1CT CO1TatT DIVISION Case l+io 97-191R (IAP) Peqro Aossello, et a1. ) ) ) VS ) AFFT1Dt.VI7f OF SEAVPC£ OF PAOCISSS ) ) Brown & Williamson Corporation ) #r now all men by these presents that 1, Sheldon FranhJirt, PA Poindexter & Associatesa lnc., $ssigned to Auly execute 41us service upaA 7orish S. Muraay,lCii, do hereby depose aud say that: 1) 1 am 4 Professional Process Server of suitable age and qualification to•execute said service 2) 1 atu a dtstnterested third party to tbe peading leSal action. 3) On the 29w' September,199$, at approximately 2:29 p.m., at the address o#'Su6ie 1200 Ltniversity Tower, 3100 Towrr Roulevard, Durham, Nortla Carolina, I duly eacecWSed service upon Josiah S. Murray, II$, by personally delirering hum a copy of Fhe Subpoena. FIJRTIiER AFFIANT SAYETH NOT 41"4-194"Ll 1'rofessioaal Prooess Sedver, Poindester & Msociaies, Inc. . Sworn aad subscnbed before rae thasaI day of 199 :?, My Commission Hzpires GEN 182067
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-rjjnMPSON COBURN 9 NOV 05 1998 12:04 FR 0 314 552 7000 TO #36705136-9133 P.22/39 Nov-64-66 15;53 From-HIAdTOH WILLIAIIS '1426 T-406 P-64/26 P-763 why they smoked, what thzu 1l1n0sses wc1e, or whar factors contra-butQd to thOse atlnesses- Arfaidanm lhave a right w discover the rPal faars behind tbe impetsona! gtoss 3eatistios for which the Couuuonwealth Intends w take Aafendann' money. The Commonwealth argaes self-rightcovsly thaF Defepdanta' ePFtuss To discoves these fwts are an eabrt to disuact fsam Defeadants' allega4 wrongdoiug• 8vars if ona aassatses rh'at ahe Comtaonweahh can prove wrongdoing by Qe>'indaats-and we do not-tbe Commonweatth still must prove rhe other two elezaents• Detendaass are raczely uying xa obtain what our systeat of jtasuce guasaauees every liugant - dw Frocess of ]aw: Thrse Defeodaprs, as ali dtircuclaa[s, are vncislad to discovrr '[be ev[tleace RiaY is snaSOnablY calculated 'SQ 8ead to Ehe discovery of admissibie evidence. For all it3 ~1£righseuusaess, tbo CominonwealW cannot argae that zhe facis relaUng to the sraok.ing hisEoay and bealth of rho .'1<ledicaid secapients *vhosa medical expenses aae at the center oY ihe liCsgaiion atx rror proprriy discovemable. Nor is it proper in this ease seeking billioas of doliars of Aefeadaats' assr.es to 3uggest that allowiny that diseovery is too time-consamia+g and burdrtsome. The ComLUOnweaitp broaght its enormous claim again.sr Dafendanrs, who are enusied to defeasi thmselves. Conuasy to the Con;monwealth's asseaaions, Aefendauts are entitled to recipient- ideneifyit>g info=mataon whethcr this caue prnceeds as a so-called .•'distict acsion" or in subrogariou. aad whether the Commonwoakh's ¢xperrs inrend to rely an individual reupient evidence or mzsely on statiwsieai and az8regate awlyses. LJnder ®itber ciretunssanee, Defendsats are entitled to mipiept identifying iiafwmsaAon. The Comnwnwealah hopes to preclude Dofendants $ram receiving this information because it could (and probably will) directly contradict the Commonwzatrh's deroagea model and expert reports, wbieh will rely exclusively upoa undiiferentiated dasa in tle aggregatc. See Coro•naaweatSh' Opp. Brief at 1Q-12. Thar thc 2 FAX 086429
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®
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Oct-23-99 15:32 From-JONES DAY $. J1efin6rloA.s 212-755-73D8 7-D44 P.13 F-D44 ATTtiC$RYXIV$' A 1. "po®uments" shall be consrti:ed in asccardance with the moanirag sscribed to it in Fcdual Rule ofCiv91 Fwccdtue 34(a), artd shall include any doctunet$ts dated aftrr January 4,1954. 2. Josish S. Munay, TTl means inclsadrs the present ttatree of Josiah S. Murray, tiI individually as well as any and all prescnt or previoas patncs, business fotms and/or capacities under which Josiah S. Mwrey, IIl, has done business andror pracucad law. A. pocuments sougbr to be produced for iaspecdon a'0 copying 1. Atty attd all documents in dosialt S. Musaay, Al's posaesslatt, cystqcqy or control sent to or reeeived frorn Liggett & Myers Inc., "ggect Group Inc. or 8rooke Gro,ap Ltd. that refer or zelate to, directly or indirectly, issues involving smoking and health. 2. Any and ati docsatnenta in Josiah S. Murray, RI's possess4qt, custody or corttrol tbat were created by JQsiah S. Mtusay, AI in the cfltuse of its repteseataatiQu of LiRgett & Myots Inc., Liggets Group Inc. or Brooke Group Ltd. that aefer or rraaTe to. d'atectty or indirectly, issues involving smoking sad healTat. 3. Any and all docurnents in Josiah S. Murray, Ax's possess'son, custody or control tbat wcre createC by arty cther iaw fitm in t'aae eourse of said law fnai's rrpreserttatiaa of Liggcts & Myers Inc., Liggett Group Inc. or Brooke Group Ltd. that refer or relate to, dizectly or is+d'ucctly, issues involving smokin$ and healtlt. GEN 182066
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0 J 0
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1`co-au in:ae Frem-JONES DAY N Y+ Arent Fox 2i2-755-73D5 ® P_R44_ P.3B199 F-044 chene Diuaado 8squire October 8, 1998 Page 3 conflicts and the likt Atent Fox views much of tliis tnatcriad as conFaderutad. Such uuoctnatian will not be paoduced in the abscnce of a confidentialtty agreement tttat, yg~g,e ," Iumts the scope of distribquon of ihese 4ocqmestts and ltmts their use to %he instant aceion If sucEs an agtVemeat is nor already in platu tts ttais cas®, please advise me. Fittelly, beeattse we havo not compteted aut seasrh for tssponsive Aocuments, Arant Fox ezptessly reserves Ne right to supplement its objacttoRs based on subsequendy discovered infomstion- Sincetely, David L Kelleher GEN 182083
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DcP28-98 78:34 From-10@ES DAYN I. pefirairiaas 2(2-755-T3D6 T-64-0 A.2D199 0 AT I'ACHirqEV t' A F-D44 1. '.DocurnenTS" shall be eoi7sBued in accordaace wiah the meanixJg ascxibed to it ia Fcdentl Ri11e of Civi1 Procedure 34(a), and shall include any doeumenrs daied after Iaauary 4,1954. 2. Arent, Fox, KinuW, Platk9ira & 1Salm mearu includes the presesat nazs:e of qreru, Fox, Kinsner, Plotkiri & Kahn, any and atl previous names and business forms, successors, paedecessors or reforrraacion.s, as well as all presrnr as,d former attomeys, parmers, shareholders, professional oorporatioas, professional associatioAs or partaerships of any sott, offacers, direejors, agerats, servanxs, managers, merntaers, employees, scaff, analysts, insurance caaaiers, consulrauts, experts, iovesdgauus and 4ar pe3sons or fums acung or ptlsporliitg 6o act on behWf of Asens, Fox, Kiratber, Plotkiaa & IKatua. IT. Aocuraears sought to be pro4uced for iuspecsion aatd aopyiag 1. -Auy and all docurnents in Arent, Fox, Kintner, Plotkin & Kahta's possession, custody or c.onirol sent ro or received from Liggerr & Myess Inc., Lig.,becr C'iroup;ricp or aroolte Cmou#a i.3d. that refer or relate uo, direcrly or indirectly, issues involving smoking and healFh. 2. Any and all docuur=is in RienT; Fox, ICiruner, Plotlsin & Kaha's possession, custody or conuol Tbat were created by Aaenf, Fox, Kinuser, Pioikin & 1Gahu in the course of its represenzauou of Liggen & Myers fac., Liggett Group Inc. or Arooke Groap Ltd. ftt sm fer or relate to, directly or indirectly, issues involvipg siaoking and health. 3. Any and all docurttmts in Arenr, Fox, IGuqier, Ploucia & Kaltu's possession, custody or sonuol shs wcre creared by any other law firru in 4he coune of said law firaa's represencacion of Liggett & Myers Inc., Liggecr Group Inc, ot Hrooke Group Ltd. that refer or relate to, diiecdy or indirectly, issues involving smokiag and healrh. q. Any and alI time 8heers, actaviay reports and billsng records in Areat, Fox, KSnsaer, Plockin & Kahu's possession, cusiody or conuol created in the cottase of Areabt, Fox, Kintaer, ploakin & Kalsn's representation ofLiggets & Myess Inc.. Liggect Group Inc. or 13rooke Croup Ltd.. These time sheets, activity reporrs and billing resords should include, without l'uttiiaaort,;hose of l.a.mnce G. Meyer, GEN 182063
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Oct-26-96 19:39 From-JONES DAY N Y~ 212-755-73D6 ~ T-044 P.33/99 F-044 i . IE FWIMC° I h=by cettify tbas a coui of La:ham & Wark9ns' Okjsciians to Subpoeaa was setved on Cheria Dusaud, Eeq., Idoss M®, litey, P.O- 8®x 1137, Ckarlestoai, SC 29402, by firsY ctass mail, poslage prepaid and by fa4- ie to (843) 720-9285 en the Ith day ®f ®ctober, Y 99& ~ ~ , i I GEN 182080 VT'.OCSt2i38~3-1
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Oct-26-93 18:31 T-044 P-II F°044 21Z-755-T305 __~[JN1TEla STA-'~LS j]1STRICT COURT OF TS•Ifi STAT6 OF NEW YORK , COUNTY OF SOU713ERN pISTILTCT OF N.Y. ' PEARO ROSkLLO, ET AL. 97-1910 plaiaafflsl Asq'.aai AfiGa175 ®t &rvlc5 s~ SRO WN & eVTLT-iAMSON TO9ACCO CORPORATION. ET AL, Juoicial Suppasaa . Aefaadaptts) ~__».__.__.~ ._`._......_.~....._..__ ..__. _._-% STATF OF NEW YoRIC, COVNTY OFNASSAU, $S: The aaderslgneq, beang duly swosm, depoacs ana says, dcpoacnr u aoi a pa>!ry bereu4 +s over 18 yean of age oad ras/dcs a; iAWRFlVCS. NEW YORY. Thoi on SepKaabeT 24. 1991 ar U3.50 PM ar ipc address 885'IH= .aVSMl$, 1000 iBW YOB.K, NY 10022. iY34 Czpoaentsmedfhe wrchas7adyqalSubpoesta U&ON: LA'1-I3Ahd & WATKdHS &y pcrsoaauy dclivenag e true copy of die Judicral Swbpoena to JUNE M- CLTMBNTO, managu+g ageat thaseof. Acpoaent ocscn'bos ibe Person actually sen'od as fallows: SEX: FFMALE SK1N• white pLAiR- Slack AG$. ? 1-35 I;ElGHT: su°-S'3" wEIGHT: 100-130 As gbc cime of servicc. dcpaaeat paad ia qdvanea,S15.00, the autbat4red aavclwg espeslses aad aae day's wlauss fec. From-JONES DAY tJj` ,.uep us Pa+cp awccn w.n4ncr san .Q,A wu ,n sauc m1r,4p sF.cc of tqe Lmtm Ssaa Gr aranc ayrc aiWew rm> ai ccp oPanp wtrua+ec anC ¢s,.w e ap6a,ua ,qpalae Snrp spn<a .os Pramea p®ttlm ea¢,N6 ava ac ma.4rg rra4urm 741%; ywnpsofia4P:I:danaNeve.rapTm~,nLorp~t.pnmmwtagNC.ntncuptaY+Fansan9mPatptAnbaspawncasapx Ncpcc ,ppr, ,nWm]iOll ~iL'7 pa.iS,1691381 Tad a~C 1pe.~sM ~l pet in rqnpRy feN.4 CrNe Nf.,Ra Stisa m af Ne~ Ycfp SiOO a34'K ffian iE aeGnm •n plp so¢ m.nlnc Fmenc saaka -a to Orjarc me ddrs 2911% da} of Sepanon 1voTARr raauC. STA'It oFNEw toRx 740 41sA590200 QUALIFIED IN M' W YORK COUNTY COMTy15510N EkF1R=• ocpxs Is, r99a C_.: ' ~ ANA F. SAl{CT1BZ .e9M 1+1I L G1T 1T2 LIeq+1S9 NO.: 007503 GEN 182058 nrco,smerMacs.a,c ei®no.xanasxeer Pflasvscma.9pssaixuiaa7-&w F.a:ur.feps
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Plaincifls have agreed to extend financial settlement terms to Liggett and Brooke Group which will not be offered to any other dafendanta, all ae ®et forth in thie Settlement Agreement. C. On March 15, 1996, the Commonwealth of 16aesnchueatta, the State of Florida, the State of Louisiana, the Gtate of Mieei.aippi and the 8tate of West Virginia and Liggett and Brooke Group entered into a aettlement (the •%nitial Settlement") of the Actions brought by the foregoing States, pursuant to which Liggect agreed to make certain payments, comply with certain proposed regulations restricting the marketing and sale of cigarettes to minors and to offer certain cooperation in connection with the prosecution of such Actions egainst the other Defsnda.nts; all in accordance with the terms of the Initial . Settlement, a copy of which ia annexed hereto as'Appendiic a. D.. The Attorneys General, the Initial Settling Staten end Liggett and Brooke Group wish to expand upon the Jnitiel Bettlemenc, through this Settlement Agreement to cover all of the Actione and to provide for, among other things, significantly greater cooperation by the Settling Defendants with th. Attorneya General, all in accordance with the terms of thia eettlement Agreement. E. The Attorneys General acknowledge and aqr®e that this Settlament Agreement, ineluding the cooperation provlaione .. thereof, ere importent to the prosecution oi their Actions against the non-aettling Defendants. T b ~ a ~L 6,6 t 2 91 QQ
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Oct-26-9B 18:31 Fram-JONES DAY t 1W Issued by the 1JNITED STAnS AISTRJCl' COURT -"1aTHERN -` PISIRICC OF ~ NEW YORK PBDRO RO6SELLOr ET AL. S11$PORNA1 I]V A CM CAS& Y aROHN iHIkLYA1'fBON T09ACCO =ENHWpEH: 487-1910 (JAE) ~ CORPORATION ST A1.. Aaeited States Iatatrlct Court tor the Diatr;ct of Puerto Rico TO- LATFiAM a NATXINS Suite 1000, S85 Third Avenue New Yorkr NY 10022-4$34 ~ YOuARECQMMANDED]oappear(ntneunneqSlAtesDisVlclCaunattneplace.Qate.anqtimespCq{eopef®wtAtaStrtyin rla anove case. 10" aF rESryo++ wreeror.aE J YOU ARE COMMANDEP to appear at Me pface. oaae. ano time specif iea pelow to testdy at ute taKing at a aepaSition in91e oere caae. .rssar oeMOCSU. wrE.r.orne lq YOU ARE COMMANaEO to Proo6aee ano pefmrt inspeq on ana copying ot metotfowing aocurrtert{s or ora(eet& at tne plack. 41% ana tlme specrtiea petow Ots1 (3oaantarrfs or opIe=); See Attachment "A" Lathaan 4 Hatkana Suite 1000,805 Third Avenue, New YorkPNY 10022-A834 MtEM®nre 10115/98 ®9:00 am I You ARE CoMMsNDED 10 peemn inspecpon ot me tol[ow,ng ptemfses at tne oata ena lime specaflaa W®W- a~ al'E iworwe Any organization nat a pany, ta tnis,euit rnat i6 suopoenaea foctrle taking 01 a oeposnsan snatl qeslBpa{e one or m®ra Dt(Cet6. eaofs. or rnanaging agentsr or oU1er pett+ons wto cons4nt to te53rty on rts Depatlr ana nlay set tonn, for aa9n Person •stgnafea. tne maners on wtdal tne peason win testffy. Federai Rufes o9 Cfv1s Prex:eoure, 90(p'(6j- lG OFiCFA &G7 ..dirt1E {aQe'..TF f eR ~.~~./~..~ eiW aesiei~ a~~ - z t J tqQc( ~cF6cM S~.,r¢asswaPr" ~ esie Duratldp 8squlFe IVess Motda. P.O. Acx1137, cYaarlestos3, au 29402 t843) 720-~2d4 _ ~sw Rw.a. iwwf N.r; a 4w P~+wa eMacs o m w.wse~ 9aaPr1 fs ponarg in agirio oCStr HMm a.nvip oo RSwtps. iW0 Cb7fi /FW CiSe P1NRW GEN 182056
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Oct-26-99 18:31 From-JONES DAY~ I. YDeftaitsoAs 212-755-7366 ® r-644 P.}d P-044 A'E°TAGWqb.'NT R I , •'Docum®nts" shall be consaued in aeeordanca witb the meaning ascribed to it in Fecjeral Fiu1e of Civil Paosedure 3a,(a), and spall includc any docuntents dated afiec 3aaauary 4,1954. 2. Tathazn K Wa$:ins means includes the present name of F.atham & WaTkirtis, any and atl prcvious names and business forms, sucaessors, predecessors or reforrltataons, as weu as all present and forraer attorneys, patvners, shareholders, professional co=porauens, proi'essioaal associations or paatstetships of any sors, officers, duectors, agents, servants, tnanagees, members, employees, staff, analyses, instuance caraaera, consuliants, experts, ircvesTigatars and other persons or frrtas acting or psKporting Fo ast on behalf of Lathaan & Watkins. U. pocaruenrs sougbt ro be prodwced for inspecao® aad copying 1. .4ny wid 4 docurttents in Latham & Watk9ra.s' possession, custody or conaol serat to or received from LiggeR & Myers ~nc., Liggett Group Inc. or Brooke Group Ltd. that refer or relate to, directly or indixecdy, issues involving smoking and health. 2. Any and all docurnents in Lap.ham & Watkins' possession, custody or cotrtrol tAat were created by Latbam & Watkins in the course of its rcpresentation of i.iggert & Myers Inc., Liggen Group Ins. or arooke Group Ltd. that refer or relate W, directly or inditecily, issues involving smoking and heakh. 3. ,4ny and all documeats 41 i.athara ct Watkins' possession, custody or control t#tat were created by any other law firrn tn the cotust of said law firm's representation of Liggett & Myers Inc.. L'aggen Group Ine. or Brooke Group LTd. Thas refcr or relate to, dirertly or isuiiressly, isues mvalviag smoking and heahb. 4. Any aadd all time stsacu, activity reporp and billing rccor4s in La~bam & Watkins' possession, cusody or control created in tite coutse of Lathatft & Watkins' reprosentarian of Liggctt & Myers Inc., Liy,gect Group inc. or Brooke Group Lid.. GEN 18201
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Ott-28-98 18:35 Fram-JONES DAY N Y 212-755-7399 7-044 P.22/B9 F-944 ~ ' .89C e t{lia. ~{ISdy-sx~MeG.'0C Issued by the - ~ = - UNI'Y7EA STATES DISTRICT- COURT M7L9fiY D gtg$$R1CT OF FgpAa RQSSEY.LC, 14T AL_ V. 9ato1i2a a HiLCSAMS(32a CORgpRATZpN, ET AL. SUBPOENA IN A CIVIL CASE case 14uwseRa ' 97-1 910 s 7AF ) United States Distr'rct Cotart for the ®istrict of 8uerto Rico Newsome, Grahame Nedrick & Kennon Sqite 1200 University Tawar 3100 Tower E1vd., Curham, NC 27717 You ARE COMMANDED to appear In ine un6eq States alsvin Coen at tne place. aata, ana ltmespeafiea G®lowio tes7 py in ep®v® CM. o.tE..40t.+r` YOU ARE C®MMRNpF=O ia appear at aze plaee. 7tlB C4s2. `FP 'R l ie.`anq time speeifiea ae1aw to testify at tise tarsing of a aeposlt,on intne I you AFgCah4MANPMto prooucc ana petintt hispwe®n ana copying of cse tatlcxing aoarmetts or ac)ects at tare p1aoE. 1e, erla irtne sp¢Clfieq aelow 0111 aocLurierils W o0jeas). See attachment "A°i Suite 1200 University Tower 31Q0 Tower AlVd. csitar®neo 10/15/95 6 9:00 am I YOU ARE CQMMANPEP to permh Mspeaion of vte toilowing preases at me oate ar1®;ime spqciried Pe1ow aatf kanw€ Myarganfaatlon not a partyto asis ault utasls suapaenaeafprule taking of a oeposb'tfon anatl aes/pryata otts or more otfcers. ireciWrs, or mana®Ing agerns. or otner persons wno Doatsern to zesiny on ns pertast. ana may sef fom. tor eacrt peeson asi$natea, yte maners on wcqcr. vte person wia testrry. Faaeeal Rules of CMI f'aawawre. s0m)(6). _ a.d r~ scKSS~.'® mtif nasAiksrrrc rRrFM P,^ns ar babawk Lz r Cherie Oqraaad, gsQiu3re - ~ Ness, mot:ley, P.®. Box 1137, Charleagan, SC 29401 liwisq.hyawdti.weGwPaaUO~~.6rPeiDanMM+~r . VD n.0 ~ a pona rg n ass es eaiar v~ a usf. o~ tsss.w~• stiw as¢ ea esmar ow raxf~o~ GEN 182069 ~J
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Oct-28-88 18:35 From-10NES DAY N Y 212-755-7300 7-D44 A.23199 f-D44 d6TI'ACI3MM :- I. Aet9nitioas 1, ••Iaocuments" shall be constnted in accortiance with ths meaniag ascribcd to it in Federal Rule of Ci''il Promdure 34(a), and shal" include any documents daied aRtr .)anuary 4,1954. Z. I+lewsopt, Gsakun, Hedrick & Kennon rucans includes the present nsme of Newsom, Gratun, Hedrick & Konnon, any and all previous names and business forms, successors, predecessoss or reforrnations, as well as all passeni and former anotateys, paraners, slsareholdeas, professional eatgosations, prafessaonsl associations or par=isbips of any sort, oH'icers, dircetors, agents, servants, managers, membets, employees, stafF, analysts, isu-arattoe cartiers, consultants, experts, iuvest3gatots aad other persons or fitms acli.ng or purponing to aet PA behalf of Atewsom, Cnabm, Hedrick & 1Cennoa . Il. ila.auavna sosaghs so b® produa®d for inspecc[ioa and copyioS 8. Any anrl all documents in ATKwsout, Gtahtri, Herlrick & Keauaon's poSsession, custody or cAnuol addisssed to or from Liggen & Myers Inc., Liggert Crroµp 1ac• oi Hro®i:e Gmup W= Tbat refer or rclaie m, dirusly or iaadirecrly, issues involving smolciag and health. ~, qny and all documents in Newsom, Grakuq, Fiodrick & Kennon's possession, custodyy or conaol that were crea[ed by Atesvsom, t'rrahm, Hedtick & ICrAtioA in the course of its roprresenja0op of Iaggctt & Myers 1ne.,1-iggetr Group Inc. or 8rooke Cnoyp Ltd. t;tat rofer or rclato ro, directly or indireetly, issues inralving smoking and heahh. 3: Any and all documents in Nmysom, GRahm, Hechick & Kenaaoa's possessioa, eusaody or connvl that Wore created by any other law firan in the coutse of said lew firua's representatipn of Ltggett & Myets kc., Liggett Gsoup Inc. or Brooke Group Lrd thag refer or relare to, direcily or indirectly, issues involving smokirag and bealth. GEN 182070
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OcY-26-96 16:56 From-JONES DAY N_Y 2}2-755-73p6 T-D44 P.24/88 F-C44 ® ~TED S i7M ES OF wMERiCA KTME GENPRiL COURT OF JUSTICE F-ASTFRN DISTRICT OF NORTI3 CAROLINA DIST1iICT COiJRT DIVISION Case No.. 97-19 10 (1AP) • Pedro I$osse/lo, et al. ) ) ) VS ) AFFIDAV1T OF SIE13i'I01= OF PROWS ) ) l1rown & Williamson Corporation ) TCAOw all men by chese preseat9 that l, Shol4on Franklin, P/A Poindexter & Associates, tttc., assigped w duty execute r},is service uport Newsome. (irahaaab a edric8 d6 FCcnpon, do hereby depose and say that: ))$ am a Professional Process Server of stiitable age aad quagi$cacion to oxecute 5244 serv;ce 2) 1 am a disinterested third party to the peading leSal action 3.) On the 29`" September, 199$, at sppraoxiaiately 2;29 p.m., at the address ofSulte 1200 UnivorsirY Tower, 3100 Tower lioul®vard, iltarham, North Garolina, t duly executed serviceqpon Ncwcoms. Graham, Hedrick& Kennon, by personaUy delivettug bku a copy of the Subpoena to John R Lon,g, corporate a$eAt eppornted by paatners to accept process FU1tTHER AFFIANT SAYETH NOT Professaonal Process Server, Poindexter & AasociateS, Inc. Sworn and subscrabed before me ihisq2day of ~ 199S My Commission Expirea 3 34) . &0?o1•. GEN 182071
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Oct-26-99 16:3P Fram-JONES DAY N 212-T55-T306 T-044 F-26/99 F-044 10 °~any way retrieve r obtain informaiion on the pellad'ium marlcet, T.he brokerage of palladium, sources of pariadium and/or uses of palladium for any purpnse. 5. Any and all documents in Engelhard Corporation's possession, custody or control sept to or received frorn l..orillard lncotporated, LoriAard Tobacco Company or Locws Corporation ihat refer or rciate to, d'trcctly or indirecgly, issues involving efforts by l.otillatd Tobacco Company or ias related entities or agents to investigate, analyze, obtain, secure, purchase or sell t31e mctaa palladium or in any way retrieve or obtain information on the palladium marhet, the brokerage of palladium, sotuces of palladium andror uses of palladium for any purpose- 6. Any and all documents in Engelkard Corporation's pQsstssion, cuscody or control iAcluding but not limited to, tAose seut to, received by, created by or created at ttu rcquest ofMr. Craig ,Keith, that rsfrr or relate to, C1ileFrly or lnditeetly, issues 3nVolvSng the ir}vesQgSUon, analysis, purchase, sale or brokerage of the metai patladium for use in the manufacnuipg of cigarettes or in any way rofer to the impact of the use of palladium in martufacturing cigarettes on the pailadium arrs&et, tl:c brekarego of pallodiwn, soureos of pal3adiwn and+or ease5 ofpalladiana for W putposC. 7. Any and all documents in Engelhard Corporaeion's possession, cusrody or consrol which refleer the names, titles, current or last lcstown addresses and Status of the Fq;porete off aers, execuEives and directors of Fngelhard Minerals and. Chemicals Corpatatiosi during 1977, 1978, 1979, 1980.,1981 and 1982. B. Any and all activity reports, billing rcxords, invoices or other documents in Frigelhard Corporation's possession, custody or cpntrol ereated in the course af ];ngelbard Corporacion's ac[rviti.s in relation to or on behalf of any and all of those compasties referred to in requests tt 1-5 above. 9. Any and all documents in Fingeihard Corpoiation's possession, custody or conRol which reflect Patgelbard Corporation's overall broJcer•age acpvigies witlt respect to rhe ;netal palladium during 1977,1978,1979,1980,1981 and 1982. GEN 182076
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"Liggett" means Liggett Group, Inc. and Liggett & Myers, Inc. "Mandatory Class Settlement Agreeee®nt• or "Mandatory - Class Agreement" means the agreement entered into on or about March 20, 1997 between Srooke Group and i,iggett and a nationwide elase. "Mandatory Class Final Order and dudgment" or "Mandatory Clasa Final Appraval" meane the order to be entered by the Settlemant Court with respect to Liggett and its Present A`filiates, approving the Mandatory Settlement Agr®ement without material alterationc, es fair, adequate and xoasonable under Rule 23 of the Federal Rules of Civil Procedure, confirming the Mandatory Settlement.Clasa cestification under Rule 23 thereof, and making such other Yindinge end deter®inations ee the Settlement Court deems necessary and appropriate to eifectuate the terms oi the Mandatory Cldcs Agreement and to eaercise its tontir,uS,ng and exclusive jurisdiction over the enforcement and adminietration of a11 terms of the Mandatory Class Agreement. "Mandatory Settlement Cless° meane the Settlement Cliws defined in the Kandatory Class Agreement. °tdandatory Clasa Settlement Date" meana the date on which all.of the follossing shell have oceurredi (a) the entry of the Mandatory Class Final Order end-Judgment without material modification, and (b) the achievement of finality for the Mandatory Claes Final Order.and Judgment by virtue of that order .e_ m A 3 L ~ m N $ ~ ® ® ~? 1.6~ SR8
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- 0 ~ As used in and solely for the purposes of this t- oc ® N m ngreeerent, in addition to terms defined ®leawhera in this ~ ~ Agreement, the following terms ehall have the tollowing ~ respective meaninges W C4 ., a •Atfiliata" means a Present APfiliate or a t`utuxa ~ f z A tiliate. N "Agreement" means this Settlement Agraement. "Arbitrator' means the person or persons agreed to by the Settling States and the Settlement Claes, and/or their counsel, o;- appointed by the Class Action Court or the MWtidistriot Litigation Panel, as the caee may be, to make decisions regarding nllocatione of the Settlement Fund between ~ the Settling States and the Settlement C]ass, and to resolve . disputea of the Oversight Committee. with respect to the _Settlement Fund, in the event thet the Settling States and the Settlement Clase, and/or their respective oounsel,-eannot agree an an allocation of the Settl'ement Fund between the Settling Statee and the Settlement Claas. the Settling States and the Settlement Class will petition the Court for appointment of an arbitrator. In oo.doingo the parties do not eonsent, nor should it be inierred, that the Multidietrict Liti.gation Panel has jurisdiction over any of the parties. . ' "Attorneys Ganeral" means those State Attorneys General or other parties who have brought Attorney General Aetiono. -`a < K ® ® i A
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companies in thoae actions, ao aa to secure the just, epeedy and inetcQeneive determination of all such .-a b .r 00 .~ smoking-related claims against said non-settling persons and entities; Z W 0 (x) cooperate in and Saeilitato reasonable 3 non-party discovery from Settling Defendants in ~ connection with such Attorney Oeneral Action; m N ~ (3) actively assist the attorneys representing z the Attorneya ceneral in identilying and locating any and all persons known to such Settling Defendant to have documents or infor.aation.that Ss discoverable Sn such proceedings, to actively asaist said counsel in + interviewing and obtaining documents and Information. from all such persons, and to encourage such person to cooperate with the Attorneys General; and shall actively assist counsel in interpreting documents relating to litigation against Non-aettling Tobacco Comgranies; and . (4) inaotar as such Settling defendant hee or obtains any msterial information concerning any fraudulent or illegel conduct on the part of any parties, including Non-settling Tobacco Cotnpanies, their agents, or their co-delendanta designed to frustrate or defeat the claims of the plaintiffs against such partiee, conpanies, agents or co- 46 G- 1 . I,0G9Q
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Oct-26-98 18 36 From-JONES OAY N ~ 212-755-7306 . 7-D44 P-26/49 F-044 40 1Ki15.mxnf R1 a t5w7 G~aa -~ Issued by the -^d6 6JNI'I'EII STAB'E6 I]IBTRiCI' COURT ABSTRILTOF N£W J£RSBY PEARO ROSSBLLO, €T AL. V. BROWN a HILLxAM3ON TOBACCO CORPpgATION FT AL. SIdIAOENA IN A CMi, CASE CASe NutrtMtt ' 97-1910 ( JAF j . [tntted States Plsxzict Court tor the Aietrict of Puerto Ric® :. Engelhard Corporatiost a/k/a £rsgelhard Minerals and Chetnicals Corporation 101 taood Avestue Iselxn, IVJ 08830 Tel: (732) Z05-5p00 I YOU AflE COMMasNDED to appearlrt>ite Un)teo States Dastiac.®eat at tne ptM, aate, ensa timespecMea pelow toaamity 0 : peove case. =w,Wr.m:*, I YOU ARE COMMANDHD to eppear at me plaoe, qate, ant9 lime spectftea peiow to aestity at fdte t®xing of a qepas8ioa etttre 04 odse. a a,° craaur+w cew4n tre I YOu ARE COMMANDEa to prnauoe aruaperrnie lnspeaiatt ana ®opying p1 tate laliwring aowmems orotajects at tne plaa. te, anC lime spectGev aelow (list qaaaRterttB or opjects): See Attachteent "A" a ess, o eyr oa o, y.c ar soa oo e 151 Meetang St;eet, suite c6®O Cner}e x. nurand, £sq. Charleston, SC•29601 J aorEam n+E .-- 0/30/96 at 10:00 a I YOu ARE COMMANDED to pannis Irtspeaion ot ttte tolcowing ptetstses at trte aate arw tlme 5peatie® pelow. aeTEN6f 11cE Myoraaritzatiotl not a pany to mis sait Snat is suapoenaeo tor tne tAkirt® ot a aeposnian snaU qasianate nne pr n10re oyioers, reqa's, or mena8ing aQel}ts, or o+$tar persans wno oa}seM ta tsstAy on hs penalt. 8nq may set tom, tar eacts person cx) asl8natea. me maAers on tbrUcn ttte person will testify. Feaerai Rules oi CMI Pracacaure. 50(ta)($)- 0~1 iarrrtaint caT9 a8izie9a .Ga~.G c~s~..amess.~o.w~M+cex C etje-k. Pu$an ® Rsquare - Ness, Motley, Loadholt, Richardson a Poole P.O. 8ox 1137, Charlestor, SC 29402 (843) 720-928a - ~c..+~.s F:wrrw.+ler~aw+.evata®•n~...ny n aearxI 13 peM.nq F7 ®a4YS R"r pian Ob7m6 a SS,ry'q!. iti•W Sii307ct RYi7f CG® n6RtiGef GEN 182073 ~ \0 ~ ~
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other tobacoo companies. To that end. Liggett will make available to the Actorneys Genera], Settlament Class Counoel and other parties with whom we have settled all relevant documents and information, including docuroeats subject to Liggett'a oisn attorney-client privileges and work product protectiona, and will assiat those parties Sn obtaining prompt court adjudication of the reet oL the Sndustry'a joint privilege claims. 4.2. Ae pronptly as reaeonab]y practicable, but no later than uix months after execution of this Settlement Ag_eament, eettling Defendants ahall cause to be printed boldly, an ail of their Cigarette paokegee and Sn all of their Cigarette. adve:a afng, in addition to the warnings mandated under the , Federal Cigarette 7.abeliog and Advertieing Act, as amended, 35 U.S.C. B 1331 y1,AeQ", the atatement that cigarette smoking is addictive. To the extent any Settling Dafendant menufacturea and wells other tobacco products, a simi]ar warning shall be pleced on auch product. - - 4.3.3. With respect to each Settling State, upon execution of this AgreemenL, each Settling D®fendeat ahall: (3) cooperate with such Attorney Oeneral, and the attorneya representing such Attorney oenaxal, in that such Settling Defendant will take no.stepe to iagieda or frustrate these couneele' civil investigations into, or civil prosecutions of, any of the Non-settling Tobacco m ~, 91 f.6V~9V
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Consumer Report publiahed by Whaet First Butcher 83neer or,a s3milar or successor report. ^Defendants" aieans The Amerlcan Tobacco Company, Inc., BAT Industrles, P1e, British American 'qbbacco Company, R..7, Reynolds Tobacco Company, Brown 4 H1111amson Tobacco Corporation, Philip Morrle, Ine., Liggett & Myers, Ync., Lorillard 'Sbbavco Company, 1nc„ and United States Tobacco Company and their varlous parent and related companies. "bomeetic Tobacco operatlons" means the manufacture and/or sale of cigarettes and any other tobacco products Sn the United States, its territories, its possessions and the Coamonwealth of Puerto Rlco. . 4FDA Rulo" means the :egulations promulgated by the PDA an August 29, 7996 concerning the sale and distribution of cigarettes and other products at 60 Fed. Reg. 44396, to be . codiaed at 22 C.F.R. Parts BOY, ®03, 804, 807, 670 and 097. "Future AZfiliate" means any one entity, other then an entity with a Market Share'graater then 30% as of the date o3 tlis Agreement, which is a Ron-settling Tobacco Cornpany (including any successor to or ausignee oE !ta asseta) Sf such entity or an Affiliate oC such entity with the prior written approvalo! 8tooke Group, aubseguent to the date, and during the term, of this Agreement but prior to the fourth annlversery of the data of execution of thi Settlemsnt Agreement: li} directly or indirectly acquires or Is acquired by Llggett or Brooks Group: Hi.02/98
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Oct-26-98 18:32 From-JONES DAY N Y 212-755-73D6 m rc.. .... ... - --~- ~ o M1flnT ~,F Issued by the . ® UNH'= STATES DISB'RBCT COURT T-044 P.1Z F-044 FiLE atsraacr oF rui~TFi ~8RC3I x3~A _. PgDRO ROSS$LLO, €T AL. V. BROWN s HTLI-IAMSON COAPORATIONr ET Ai.. $41$POVAA I!V A i:MY. t.AsE CASEWA" 97-1910 (JAF) . UNIT€D STAT€8 DISTAICT COURT FOR TtgB DISTRICT OF PU€RTO RICO 1 Josiah S. Murray, III Nevsom, Graham, Hedrick i I`<enaan Ssaice 1200 astiivers zy_.-TpWerr 3100 Tower a lvd., Rurhamo NC 27717 ~ YOU PRE COMMANDED 1o appeat~l pie Unneq bZeBeS DisyiGS CaunaErAM pCe rsa4®, ~Plq iimeSpECtfi®4 DeloW;qtg5t9Pyiry a Bi10V2 CSSe. l " 7t~ la oFtEStfvn • N~TiA~wc .,L~ i h - ,yT , t*7EMDTW ~ I 1'i]u ARE COMMANDEG la appe r a1 tne plac€taasela~xi tcme speaf ec qelow to cesst(y al me laking ot a qepasiUon iMne .90 case. 11 jao;PffC9r10h . J VCU lqia COMmANDFA to praquce attp pennh yZSpectian enn wpying ®1 ¢!e taloowm® Aactattlsnts or apJects a! me ptace a(e, a,na time speafiea aetow pst aoarneM Cr aalecss): See attachment "A" Sutte 1200 IIniverslty Tower 3100 Tawer.8lvd. Aurham, NC 27717 o.TEUO7" . . 10/15/98 8 9:00 am ~ YOU AFiE COA9h4AAiGEA to pwmit mspeCY(qn of Wm 1allowmg premdseS a6 A1e t399e dinq 9ime speolUpi pelow. Anyorganlzaslonnol a panylo mis sunmat Isa,rapoenaeo tarmetaRing o( a aeposiuan stlalt aestgnate one ar rnAre otPirars, firee+ors, or manegtng aVrns, or vRl®r pefsarVS wno opwr1t ia tesliry an !ss mena8t, esx7 may set tarQaM tar eute peraon ~ sesi7atec9. {ne manars on wflim Pe panson will 1esBily. Feaeral RulBs ®f Civii Procedufe. 5C(C)(B). (, AaC CFJIi~cMSUiE41oS1RE TEF4TioWC1WNP1YriiFC+RGEfEMV+q _ F^i£ ~ ZS_ p la9~S ~ ° r+~r~ ~ Cherie Durand, Hsquare ~- 1 4A3 Z7dL l-.32aL MK ~+4~+sara" ftana.a wrao e a ~.~as, Ness, Motley, 8.0. Box 1137, Cha=lestvnr8t: 29401 °" II am°n w penartv n asmsr ®e+m tNn araawi `x asaorpoc esw. °am `+me` e.oe mrrm GEN 182065
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F. The Attorneys General and Liggett and &rooke Group recognize and aupport the public interest In preventing smoking by, or promotion of smoking to, children and adolescents. a. Liggett and Brooke Group have denied, and contiaue to deny any wrongdoing or any legal liability ot any kind in all of the above-mentioned actions. H. The Settling States and the Attorneya General recognize and acknowledge that the cooperation being provided ie valuable to the continued prosecutlon of the claims agafnet the tobacco industry. Further, the Settling States and the Attorneys General acknowledge that the change In warning labels provided for In this Settlement Agreement ip a atep towards properly . in'.orming-consumere eore fully of the truth about cigarettes an,d the eonseqvencea of smoking, as is the etatement by Liggett also provided for herein. NOw, TP-MFDA.S, in eonsiderationof the ioregoing and of the promises and covenants set forth In this Agreement, the undersigned Attorneys Generel, on their own behal{ and on behalf of their respective Stata,e, and Liggett and Brooke Group hereby stipulate and agree that the Attorney General Actions eball be settled as against Liggett and Brooke Group, and that all claims eaaerted In the Attorney General Actions against Liggett and er»oke Group shall be disml.ased, all on the termsoontained herein, as tollowss - 1. befinitions. • 0 A A $I,I..&hL98
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United Statee 7bbacco Co., unless and until it becomes a puture Affiliate, as herein defined. . "Other Bettlement" meane a aettlement n6 an action which is not a Global Settlement. 'overeight Coratnittee^ eroane a committee, made up of no leae then nine (9) individuela, to oaeraee the cooperation provided by gettling nefendants under Section 4.3.1 and 4.9.2 hereof. The committee sha11 have not Iese than 75t of its compoaition fxom repreaentstion of the Attorneyp General. • "Parent", with respect to Llggett means Brooke Oroup, and with respect to any other specified corporation or entity, means another corporation, partnerahip or other entity which directly or indirectly controls such specified corporation ox • entity. "?arties^ means the Plaintiffs and Hrooka Group and Liggett. "Populatlon" meane,.with respect to a geographic aroa, the population of thetarea as reported in the mwat recent census conducted by the United States Bureau of the Census. ^Pr®sent Af4iliate" means, with respect to s specified corporation or entity, another corporation, partnerahip or other entity which as ot the date of this Agreewent, directly or indirectly, controls, is controlled by, or ie under common ® control with, oueh specified corporation or entity including any , ® a m 5~!-6t75°3
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defenda.nts, or which have the e£Lect of anlaw£ully suppressing evidence relevant to smoking claims, discloae such Snformation to the appropriate judicial and regulatory agencies. 4.3.2. With respect to each Settling Stete, subject to, and proelptly after, the entry of a Protective order er a Stipulation Regarding Liggett Documents by the court in ahich the reapective Attorney General Action ia pending or the Settlement L'onrt, each Settling Defendant ehall: . (1) promptly provide all document® and intormation that are relevant to the aubiact matter ot the Actions or which are likely to lesd to admiseible ' evidence in connection with the claimq asserted Sn any of the Actions, subject to the provisions of Section 4.3.2(2) heseofi. (2) waive any and all applicable ttorney-client privileges and work-product protectionc with respect to such documents and informetion. Such waiver shall not extend to la/ documente and information not relevant to the subject matter ot the Actions or not likely to lead to ®dmissible evidence in connection with claims asserted in any of the Actlons or (b) documenta subject to a joint defense or other privilege or protection which Settling Defendants cannot legally waive unilaterally, except that the waiver by the Settling . .-.~.,.. °19^ 0 a. -o ~ m tZ 1..6JOH8
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- 0 N N ~ ,~QRa?~Y_5_nE ai. TTL8VI6NT~ ~r 00 d O m Th1s SETTLBMEWT A[RtBEtLENT le entered into this 20th day N 00 A 0 oi March, 1997 by and among the States listad in Appendix A ~ ~ hereto (cullectively, ^Plaiatiffs") and Brooke Group Ltd., a W C9 0 3 Delawar® corporation ("Brookc Group'), ].iggett 6 Myere lnc., a a Deleware corporation t"Myers"], and Liggett Group. Inc., a m N O Delaua=a corpoxation {which, with Myera, ie hereinaft®r referred K Z to so "Liggett•). ner.mpT.c -c ® Y7BPRFAS, A. The Plaintiffs, by and through their respective Attorneys Genera] (the "Attorneys General•), have brought (or are contemplating bringing] civil actions (^Actiona°) in various juriedictions acrosa the nation ("Actions•) agsinst, among others, the American Tobacco Company, Inc., 8AT Industries, P1c, . British American Tobacco Company, R.J. Reynolds Tobacco Company, Brown c6oilliamson Tobacco Corporation, Philip Morris, Inc., Liggett 1, Myers, Inc., Lorillard Tobacco Company, lac., and United States Tobacco Compeny and their various parent and related coa~panies ("Dafendants"), aa®erting clafm® for, among other things, expenses allegedly arising from tobacro-related • mattera and injunctive relief concerning sales of cigarettes to 9 '1 1,tJV L'Ji7 minors. B. Because of the importance of the agreements and cndertakings by Liggett end Brooke Group herein to the goala of the Plaintiffs and the Attotneya Genera), including the prosecution of the Actions against nan-settling defendants, g 8R11191T
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"Attorney Genesal Actions" or "Actions^ means the actions listed in Appendix A hereto, including those actions brought on behalf of the State as taxpayer actions. "Attorney Ganeral Settlement Fund Board" or "Attorney General Board" meanng, the entity eetabliahed pursuant to Section 5 of the Initial Settlement. •Brooko Croup" means Brooke Group, Ltd. and its Present Afliliatee other than Liggett. "Cigarette" meene aby product inc]uding components, - acceasorias, or parts which is intended to be burned under ordinary conditions of use and con'sists of: (i) any roll of tobacco arapped In paper or In any substance not containing , tabaccow or (71 anyro]l of tobacco wrapped In any substances . eontaining tobacco which, because of its appearance, the type of tobacco used In the tiller, or tcs packaging and labeling, is likely to be attered to, or purchased by, consumers ae deocribed Sn subparagraph 131. "Cigarette pack" means a unit oC twenty Cigarettes or or.e ounce o! Tobaceo Snuli, or any other eimllex methad of delivery to consumers. "C.ost Per Cigarette Paek" means, with respect to a Tobacco Company, the aggregate costs incursed by such Tobacco . Company under a Global Bettlement during a specified year, divided by the number of Cigarette Packs muwfactured by such Tobaeco Company during such year, as determined by The Mexwala •5- ® 0 e n°. v A m 0Z~.0"8
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or tranafer is required by the Federal Trede Conauiasion, Depaxtment of Justice, State Attorney General or court order. W 4. J!ubltc Sta- m.n-: tyaoeration• dA aW;7lsino L•/mita ion , 4.1 Upon execution of this Settlement Agreement, Liggett shall, by and through its Director, Hennett S. Leeow, issue a public statement substantially in the following torm and subatance, 1 am, and have been for a number of years, a Director of Liggett Group Inc., a®anufacturer of cigarettes. Cigarettes were identified as a cause of lung cancer and other diseases as early as 2950. l, personally, a:n nct a scientiet. But, like all . of you, I am aware of the many repora concerning the ill-effecto of cigarette smoking. We at Liggetc know and acknouledge that, as the Surgeon General and respected medical researchers bave found, cigarette smoking causes health problema,- including 7ung - oenoer, heart and vascular disease and erVhysema. i9e at Liggett also know and acknowledge that, as the Surgeon General, the Food and Drug Administration and respected medical researchera have found, nicotine is addictive. Liggett will continue to engage in the legal activity of selling cigarettes to adults, but will endeavor to ensure that these adult smokers are aware of the health risks and addictive nature of amoking. As part of our eftorta. wa will do the followingr .Is. I T O 1 z h 0 Y K Z 0 OL 1.6b292
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waive and hereby does waive any and all applicable confidentiality agreements to the•extant such confidentiality agreements would restrict tescimony under this Agreement, it any, to which such witnesaee may be subject: and 14) demand from ite paet or currant national legal counsel all documents and intormetion obtained by them in the course of representation of any Settling Defendant which in any way relates to the cooperation required in paragraphs - 4.D.ata).above, which should be provided to the Settling States as provided . uader this paragraph. 4.3.3. WCth respect to the cooperation eet . forth in subeectione 4.3.1 and 4.3.2 above, the Attorneys General and Settlement class Counsel shall appoint, on a yearly basis, an Oversighc [bmmLttee, to oversee such cooperation so that it fairly-asaists them and minimirea the burden on a Settling Defendant- Allreguests for coop®xation will be fdrst made to the Overaight Committee. The troaraight Cbmmittee shall coordinate such requests giving due regard to the legitimate needs of the litigants requesting cooperation and the burden en the Settlittg Defendant. Nothing in this Agreement shall waive or alter the rights of the Attorney® General to obtain discovery of Liggett ae required by a court order or caee vianagement order in O 92 I 6~298 m 0 N m A A e a
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Oci-25-98 18:38 Frem-JDNES DAY N Y~ notes and dootimtmts reflecting t4seic me 212-755-739& 'f-B44 P-32I99 F-d44 ~ irqptssaioas of their defenso of the casts, the witnesses, and the clasim ageinst th:ir cl~nts. Tbe boxes also inctude aad ttalcnown nuraber of dociuaents and matcriale roiaring to ' lives sad audical bistmies of du plaintiffs who sued LiggetVftoke over the years, whi4 documemts shanid emain privatc. 6. To organize and +te out the j oint dafense, wosk product and privaze pe:aa®al documenta relating To piaiatifs fsom the ather ease mamtials withia 6.3 aniUion pages afdocwaencs would be e' e eoaswniug and eupeasive, The praparatioa of doewaenrs for groducsion could not be plished withiit the taare set forth in the subpoeaa. In addition, uader Rule 4$(c t 2)(®,), Latbasu, es a Lw flrm= which is not a paaty, woul.d be eatided to be protected fram s gnificaat expepse resuitiag ftom the anspartioa and copyiag of dacame:ats. To require Lathjsm~ to paepem the dac~cats fot production within the period of tizac and without protecti ~+ ttam expeasas wou]d be aateasonable and constitute an undue btuden_ ! Dat+ed: Octobex 8,.1998 7 ATHANY dc `VATiQNS Sy ~ Fmnc.is K Aecka, ]r. (#9161) 865 Ttsird Avenue [ New York NY ] 8022 ~ (212) 906-1200 , ~ ~ ~ ~ i ~ ~ ~ i %10 3 GEN 182079 X-y_nocsras2s"
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i 0 ; N 0 1 -"Settling Defenda.nte" means Stc+oke Group and/or Liggett. o, m 0 "Settling Defendants' tbunsel" means the law firm of ~ . Rasowitz, eenson, T®rres & Friedman L.L,P. W C7 ~ ^Settling States" means the States listed in Appendix A ~ hereto and Subsequent Settling 9tatea,'iL any. . "Smokere" meane all persons who, prior to or during the term of this Agreement, have smoked Cigarettes or have used other. tobacco products and have suftered nr cla!m to have suffered Injury ae a consequence thereof, "Subsequent Settling States" means States other than the States lieted in Appendix A he=eto which eommence an Attos-iey General Action and which exeeute this Agreement within eix montpe from the date of this Agreement {unless such six-month period is ex_e:.ded or reopened at the option oCthe Sertling Defendantsf~ "Tobacoo Companies" means the Defendants. •Tobacco Snuff^ means any cut, ground, powdered, or leaf tobacco that ie intended to be placed Yn the orel cavity. 2. awetl msn - 1=Qaea OnIV. This Agreement is for settlement purposes only, and neither the fact ot, or any provision contained in, this • Agreement nor any action taken hereunder shall constitnte, be construed as, or be adailsaible 1n evidence against the Settling Defendasta as, any admission of the validity of any claim, any argument or any lect alleged-or which could have been alleged by-]3- ® 2? 1,6t~98
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in that Action: qa) protecting the confidentiality of such documents; (b) providing that such documents may be used only in that Attorney General Action and, to the extent pexnitted by law, only under seal; (C) providing that, to the extent such documents are or sucy be subject to the attorney/client privilege or the attorney work product doctrine, such production or use of the documents does not constitute a waiver of such privilege, doctrine or protection with respect to any party other then the Attorney General to whom the documents are produced subject to the order. The provisions of the order shall not apply to documents claimed to be privileged but which are determined by the court in any Action or by the Settlement Court not to be . privileged for reasons other than uaiver due to production pursuant to this Agreement. "settlement Class" means the settlement clase provided for in the Mandatory Class Agreement. "Settlement Clasa Counsel" means the firms listed as Setclomont Class Counsel in Section 28.8 of the Mandatory Class . Settlement Agreement. "settlement Fund" meana the fund established i.n accordanca with the terms of Section 6 of this Agreement, which shall be established in a reputable bank or other tinanciel institution, to provide a secure and interest-bearing £und, and which shall be jointly controlled by the Settling States and the tdand.tory Bettlenuent Class. •x2• ® 0 67,f.021-98
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Oct-S5-88 19:38 From-JONES DAY N Y~ 212-755-73D5 ~ 0 1 UNITED ATEB DISTRICT COURT SOUI'HBRN YST$,iCT OF NEW YORBC ~ PEDRO ROSSELLO, ET AL. P7CdidiiLiC, . ~ I V. ®~ ~Bc~W~ ~M~3,ON TOaACCl~ Defendaats. !,I 7-044 F.3D199 Casa No. 97-i910 (JqF) Uaited States District Court for the District of Pnerm R4co ® P ~ Purstsatae to Rule 4S(c)(2 ) of tbe Federat Rvles of Civpl Procedure, Latham & Watkias ("Latbeas'9 hereby objacts to i sp®ctiott or copying of the designeted matefae]s set foz[b ~ in Attschaaeat A of the Subgoena, ser~ed upon Latltaaa on Seputttber 25, 3995, in the above- oaptioned ease,forthefoUawiogreasoa~: 1. Lathem is not a P aaeH does not repaesrat any gaxty in dhe above- captioaed case. Latb8a4 is $bzmcr d of LiggeR Qsoug Inc., Ligg®tt Bc M®yera Iac., and Br.ooko Cr.oup Ltd. (°2iggettlBrooke"),lrep them in saus involving claktss of srnoking aad bealih. Lathem no longer Iraptosetns I.IggetY9rooke in aay iespect and has aot done so amoe Massh 1997. 2 Tbe subporna seel~s "all documrmas" 9n Latiazm's possession, ceatody or coatsol sent to orreeeived from Lig~ettlBtoolso or created by lawyers at Latbam or predecessor law fums us tbe course of ~~teir repreaentamon of Li ft'®m January 1954 to Marsh 1997, a period of more ~hmt fosty-three yeaas. It aYso see7ca time, acti„+t7+ etsd billing raoords ia the course of Lathasa~~ s rePr eseatatiop of Liggett. The subpoeaa. is Iimited { GEN 182077
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having become final and non-appealable through (i) the expiration of all appropriate appeal periods without an anpeal having bean filed; liif Unal affismaswe of the Mandatory Class Final Order and Judgment on appeal or final d3smissal or denial of al1 ouch appeals, including petitions for review, rehearing or certiorari; or (ii1) iinal diepoeition of any psroceedings, including any appeals, resulting from any appeal from the entry oi the dvandatory class Final Order and Judgment. •Market Share" means, with respect to a Defendant and a specified year, the Domestic Tobacco Operations market share in that year of all of such Defendant's cigarottes and other tobacco products, as determined by The Maxwell Coneumer Report published ~ by Wheat First Butcher Singer or a aim'ayar or successor report.° "Medicaid Population^ means, with respect to a Settling State and a epeeiiied date, the Medicaid population of such Settling State as reported by the most recent gnited 8tatea Census. 'National" means actually covering or potentially T O a m N Y -G ~ K to covering (whether by block yrants to states, loealities or other governmental entities or otherwise) the United States or the United States and-one or more of its terrStoiieo, possessions and 0 the Coamwnweslth of Puerto Rico. 0 •Non•settling Tobaeco companies" means each of The American Tobacco Co., Lorillard Tobacco Co., Philip Morris %nc., ~ a v a ~ ~ R.J. Reynolds Tobacco Co., Drown & V(illidmson Tobacco Corp., and m ~ -g- 0 ~ O O J A ~ 6 t 2` 9, 2 ~
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Oct-26-86 1B:37 From-JONES DAY N~ 2!2-755-7306 ~ 7-044 A.27180 F-044 =t_ _ ., ~----- --4 M.. I. IAcfin3r3oAS l. 77te word °Docuriaen{s" ahall be oorastryed in accordance with the meaning ascribed to it in Fedcrai Rule of Civil Procrdure 34(a), and shall ineltide any documents dajed atler January 4,1954 , 2. Fxtge!}taad Cotporation meansrincludes the prsserat rtame of Fz2eUtard Cotporation, an; and all previous names and businoss forms such as Engelhard Minerals and Chemicals Corporation, successors, pre.decessors ot reformations, a.s well as all pttesent and f'ot'mer corporations, officers, directors, agents, servants, tuattagets, members, employees, staft attalyszs, insusance carrius, carsultants, expests, iatvestigators and other persons or tirms acting or purporting to act on behalf of Engelh2ud Corporation. II. Documencs sought Bo be produced for iaspecciott aad copying 1. Any attd all documents ia fingelhard Corporation's possession, custody or oontrol sent to or reccived from Liggett & Myets Inc., Liggen Group, Inc. or $roclCe Group 1-td. that refer or rdate to, din:ctiy or indirectdy, issues involving efforts by I.iggcn & hleyers or its related entities or agenTS to investigatc, analyzc, obtain; sect,rc, ptu chase or seil the metal palladiam ar in any way retrieve infotmation on the palladitun markei, tqo brokerage of palladitaa, sources of palladitua andlor uses of palladitun for any ptupose- 2. Any and all documents in &ngelhard Corporation's possession, eustody or contTol sent to or received from Philip Morris Ir}corporated or Philip n4ortls Companies, Inc. that refer or relate to, directly or indirectly, issues involving effarts by Philip Morris or its ralated entities or agcnts to investigate, analyze, obtaira, securc, puschase or sell the metal pai8aditura or in aady way rcuieve or obtain information on the paltaditun market, the brokerage of palladuym, sotttces of palladiµnt an4or uses of pailaditun for any purpose. 3. Any and all documents in £rtgelhard Corporation's possession, custody or concrol sent to or received from Hrowrt & Williamson Tobacco Corporation, Aritish American Fioldings, Ltd., B.A.T. Indtutrios PLC or aatus Ho)diABsa lnc, that refer or relale to, directly or indirecpy, issues invoivmg efforts by Brown & Williamson Tobacco Corporation ar its rclated entities or agetats to investigare, analyte, obtain, secure, purchase or sell the metal palladium or in any way retrieve or obtain information ah the paAaditun market, the brakerage of palladium, sources of palladium and~aa uses ofpalladiurtt far any purpose. 4. Any and all documents in Etagellsard Cotporation's possession, custody or conlral sent to or received from R.7. Reynolds Tobacco Company or RTit Nabisco, Inc. that tsfer or relate to, directly or indirectly, issues involving efforrs by R.J. Reyttolds Tobacco Company or its related entities or agents to investigate, artalyze, obtain, secure, purchase or sell the metal palladium or in GEN 182074 0
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and ali Parents, subsidiaries, and/or sister corporations or entities of sueh specitied corporation or entity. "Present Value" means, with reepect to a specified amount or amounte, the present value of such amount or amounts as calculated using a discount rate equal to the yield on 1o-ysar Treasury Notes as reported in Che toalt e. -. tioual at the time of such calculationr provided that where such amount or amounts are not otherwise dete:minable, the amount or amounts to be present-valued ahell be deemed to be the average for the most recent three yesra. "Hretax Income", with respect to Liggett, meena for a specified year, the °7neome before Income Taxea" as determined in accordance with generally accepted accountSng principles ("[iAAti") of Liggett forits most recent fiscal year, ae reported in filings to the United States Securities and Sachange cometlssion or, if there ie no such filing, as reported by Liggett's independent outside auditors. It ®AAP changes in any material respect during the term ot'thie Agraeeent so that the benefits anticipated by the parties (in 3ight of GA9P applicable on the date of this Agaeement), an appropriate adjustment shall be mede to the formulae and caleulation® hereunder to achieve the parties' expactationea as ot the dat® riereof. "Pxotective Otder" or "Btipulation.ReQarding Liggatt Documents" sieans, with respect to privileged doeumente produced by a Settling Defendant in an Attorney General Action, en order m v N ® ® m ~ m 4 ~ A 97~~,6VO293
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M6V2-0/8 er.sure that, the tobaoco industry ma:kets its produc_s ]aw'.::lly. Acaor'r-ingly, the u^dersiyT.ed At:oraeys C-eneral wall uae e`aeia best el!orta in Ccngxeas and e:eewheze to ensure that any such indust:y-wide xeso]utSon provide Sor Sinancial texms !ox Liggett that reflect appropriate recognition of Liggett's coopaxative eetorta. 5.2. ]n the event thexe is a Global Settlement at any t'sme which cor.tains Yina:cial terms, financial obligations or !_nar.eial car.ditior.s as to Procke Group and Liggetc wl--zeh are ac:e cr.eraua on, or less Eavorablete, Prooke Group and Livgett than t*cse of thas Settlement Ageeement, then, in additSon to aatd not in derogation o: any other r:ghts or remedies Srcoke Group • and i'-oc_ett may have, grecRe Group and Liggett shall have the right, at their option,.to wsthd.-®w from !urther periormance of th:s Ag:ees,e.^.t. S. c.-.tn.ee..e F.md, 6..9. Except as may otheswiae be provided he:eSn, all ar,.tur.ts due ar,d owing by each Settling De!endant under this Agreernent shall be paid when due Into the Settlement Fund to be allocated and distributed to Settlement C]aoe members and • Settling stetes in accordance with this and the taandatory class settlement Agreement, in the event that theSettling States and Settlsmeot Class Counsel car.not agree to an equitable allocation c: the Settlener.t Fund bet:reen the Settling. States and the ®
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9;6r 0298 ctnt_ac:- for adve=tisi~g a:-d promct_en w'__a =esy.ect to tobacco prcduc:s us?^g any such ca:- ccn cl:a:acters a:=er the date the Settliag De:a^.dants beccme bcuad by this Ag:eemer.t. 4.9. tiaca Sct:l:ng De_"e^.dast may, a'.ter becom<_ng bound by thia Settlement Ag:eemer.t, eont:nue in the lawiul manuiacture, advs .3siny and/or aale of tobacco pxoducts. This Settlement Agxeemenc does aoc in any way abro5ate or restrict the author!ty or ability of the Attorneys General to en!crce future compl:aace w:th the laws ofi the!x respective States. 5. eI..r • e -te^g1 . - 5.1. Sffective upon tl:e executicr. Y.erec:, the Attcraeys Ge:eral and the=r rescective cotnsel, eaeh agree (al to exercire best e!lorta to ensure that the financial terms, financial o•cl:gaticne or f:r:a^.cial ccr.dit:ons ct any Global Settleme.^.t are no moxe onercus or., es less favcre.le to, Brooke Group and Lic_gett than the fi:aacial terms, fi:.anciae cbiieatiens.or f:-a^cla! cor.ditior.s of this Se•:lement Agree•nent, a.^.d (b) to issue a public statement ss:..sta nt`-ally in the followir.g form and substance: The historic settlementa entered into by Liggett, whereby Licgett has agreed, amcny ocher tht_r.pa, to provide full eooperaeion to twenty-two Attorneys General atC to consent to FDA ^eg:lation of tobaecomarketingo are a major advance !n our effosts to prevent amwk'_nc by childrern and adolescenta and to -?e- 0 ~ ~ 00 i m 0 Pr N s .... 00 ~ W C7 0 m 0 s < m -c 0 = N ® i A
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Oct-2H-98 18:34 From-JONES DAY N_)L 212-755-73D9 7-D44 P-J9/99 F-Ddd Issued by the '" UNI'1"EII STA'h F.S $DISTRICT COURT A35TRICP or PfiE' aISTRICT QF COLUMAIA PPpRO Ro9SEi.E+O j ET AL. SUBPOENA IN A CYYd$- CASF- Y aROWN 3 HILLIAMSOiQ TOaACCO rAnNUwIA11. 97-1910 (7AF) , CORPORATION 8T AJ.. Anited states 9z.suricg Court for the ASSXrict of }'uertq Rioa TO. Arerate Fox, KIntner, Plotkin S Kahn 1050 Connecticut Avenue, NW ~ Wastlin8tonr DC 20036-5339 l••d YOUAAECOMMANOE33toappeprlnRle unneq5latesDistrlaCOUnatWlepFace.t7at?,anoGmeBpecjtleqd7etoWCASestlPyin me aaove case. K"CFTCnV="V 006XIVAM oo,>:.nanz: f..f Y®u ARE COMh9ANd9A to appear at tne piaw, cate, ano time specihea oe1rn,+ so testi(y at tna taKln® of a aeposmon Ina1e etiowe oase. -- rW" s PPVv11*Fs c.ce r,n Tne sia YOU Aflir COMMANOEA to proquce anC permn InspeCt/orj ana copyUlQ ot 7se Pollowing 4osaarients or opjecls at tne place. aate, sn® lime sAec~fiea pelow (lis[ aoaurn®rtis at oa4ectsY See Attac)tment "°A" °"" Arent, Fox, Kintsser, Plotkin 8 Kahn 1050 Cotanectiout ASenue,NW. Washington, AC 2e03fi-5339 oaxwan" 10/15/9d® 9;00 am ~ YOU AAE COMMANDFR to patmn Inspection ot A1e /ohoxrln® pramises ar Me s3e1e enq SItTle spec.rfisa Relowc vf>: "tare Any organization not a pany ta ttiis swlt Shal i9 stippoanaeq tor tne takin® ot a aBposltton $ria11 Qemlgnate one or marg atfigErs, aireLZors, or man2®1n9 agents, or qqi8( persons wn<a ¢onsent ao {estiy on Its aebat(. ano may set tor?t, ror ®aCt person oesi9natea, ine matiers on wndl tne person wni tastiry Feaetai Rutea of ®n+tl Procaaure, 3®(p)(61• -Cherie Dutand Esgu ire NesS MOCley.f.O.t+ax 1137, Charlestone.$C 29402 (8431 720-9284 _ _ -- , 1a.. w. 4. r.oF. e.+a+fi9 rRwed. hm c i ovn 1Nwnr } . R sLwr 6 panaina a1 qsptq oF1er Of9n CR?cY o9 RBwSnW. Ei01B Gi97rt Ml1898 S~ 1Lp91CW' GEN 182062 OC3490v8
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any at:orneys Gene_al Action, prov!ded that no order ie sought t?^ae is inc=r.n?atent w!:h this Ar,:ee-nenc. 4,3.4. %n the eveat the Ove=sight Committee cannot agree on the shaang of cooperation by liiigante, any memher o: the Committee rwy seek resolution by an Arbitrator. In the event that the Oversight Committee-cannot agree on the selection of an A:bitrator, the Overeight Committee will petition the Multidistrict Litigation Panel for appoi-Itment of an- Arbitrator. ]n the event any Settling Defendant, ®bsent good cause, does not provide reruested cooperation as promptly as reasonabiy pract:cablo, a:cer recelving wri_ten notice from the ecea!t-ee of suc` request, (3) the Committee nay seek relie: tzom an A.-:itra:or, and l2i the Committee, upon notice to-the Settlir.g De=aadaat, may petition an Arbitrator !or specific perEcsmance of such rer,.•ested cacperation. . 4.4, Each Settling De!e:.dant, promptly after becom:ng bou.n.d by this Agreement, shall consent to jurisdiction by the FDA for the sole purpose of prcmulgatin7 the FDA Rule with respect to - all Tobacco0ompaniea. Father, each Settlir.g Defendant, promptly after execution oL thia Agreement, shall endorse, support and assist in attempts by the FDA to have the FDA Rule . become enforceable. Such etiorte shall include, !t and as reasonably requested by the Attcsaeya General, fi7ing wppropriace amccus br!e!s and other couttpapers in litigation relating to the T~A au3e. . •22- 0 i A G~1,0298
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0 N m ' Plaintitfe as to their standing or as to any jurisdictional, oonvtitutional or any other legal or Pactual issue in any Attorney Gener+al Action or alleged or which could have been alleged in any other action or proceeding of any kind or of any wrongdoing, fault, violation of law, or liability of any kind on the part of the Settling Aefendante or any admiesion by them of any claim or allegation made or which could have beea mado in any Attorney General Action or in any other action or proceeding of any kind, or as an admiesion by any of the Plaintiffe of the validity o@ any fact or defense asserted against them in any Attorney General Action or in eKy other action or proceeding of any kind. 3.2. Thie Agreement shall be binding, in accordance with the terma hereof, upon Brooke Group. Liggett and the Settling etateas provided that, notwithstanding anything elee contained in this Agreement, the payaent, obligations of this Agreement shall ba binding only upon Liggett. 3.2. 41o Settling Defendant cball sell, use, dispose or transfer subatantially all.of fts cigarette branda or buaineasee without Eirst'cauaing the wcquiror, on behalf of itself and ite auccessors, to be bound by s11 of the obli8atione of a Settling Defendant pureuant to Sections 4.7 and 4.4 through 4.6 hereundar as to such transferred brands or busineeses; provided that this Section 3.2 shall not apply to the extent such sale, disposition -34- I N N r ~ -; 0 ~ ~ ~ ~ ~ m -„ ~. ~ e'r $ m Vm Am G? l.6IV 2 °9
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4.5. Each Settling Dafendant shall Po11ow and abide by the prsv?®icne of the FD.1 Rule, Sasofar as they per:a:s solely to such Secalir.g Defiendant's Domest.c Tobacco Cpe:ations, as set fo^ h in, and mcdii9ed by, pa:ag--aphs 4.5.1 - 4.5.4 he:ecf ur.til a final detexaiination in reached raepecting the FDA Rule at which time the Settling De@eadante will be bound by the FDA Rule only insofar an, and to the ex:er.t that, the FDA Rule beccmes an e::Sorceable obligation bindir.g upon all of the 7bbecco Companies. 4.5.3. FDA Ru'_e $ 899.16(b), as pr^.pcsed. 4.5.9. F,A Rule 3 897.15(d), as pta;osed. 4.8.7. FDA Rule $ 8®7.50(a), ae p:cbosed. 4.5.4. FDA Rtae S 697,3o(b), but cr.ly to thg extent that such sect:on aFplses to bdllboazde within 1,000 feet of a clearly maxked public or private elementa.-y or secondary school o:.a clearly marked, cw.dec:, mueicipal or otheTgovernment-ope:ated publie playgrour.d for-child:en, 4.6. Notioithstendang anything to the contrary ]n the Proyosed Aule or in th'_e Agzeement, Liggett will cor,mence compliance with Section 4.S of this Agreement as soon as reasonably practicable, aecording priority aa to compliance to ,.. the Statea liated in Appendix A hereto and then to Subsequent b Settling States; provided that Liggett may limit its oompliar,ee to the extent, it any, necessary to ensure that the net annual ~ m v ~.. ctt-c;-pccket cost to Liggett o" such compliar.ce not eHceed $1 -.73- m m , 0 A A < ~ 0 ~ 6 ~~cz 98 •m
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O 1 (SS) directly or indirectly acquires all or substantially all of m the stock or assets of Liggetc or Brooke Group; (Sit) all or ® N = substantially all'of whose stock or assets are directly or a O ~ ~ indirectly acquired by Liggett or Brooke GroupI or tiv) directly or Sndirectly mergea with Liggett or Srooke Group or otherwise v o 3 combinea on any basie with Liggett or Brooke Group. m ~ "FSture 8ifiliate Tranoaetion" means a transaction, or ~ K ser!es of transactions, by which an entity b®coasee a Auture i AS!iliate. . . . "Global Settlement^ means any Narional dSeposltion, aeotlament, agreement or other arrangement, euch as "Tobaceo Cleims l.egis3ation", by way of ]egielation, executive order, regulation, taxation, levy, S3ne, class actSon"settlement, cour,t order or otherwise, of smoking•related litigation, in direct or Sndirect connection with which one or moze Tobecco Dompaniee reteives the benefit of a limitation ot, or total or partial ® immunity Prom, liability to plaintifts for the types of claims N w re:eased under the terms of this Agreement. •lnitiel Sottlement^ nmans the .ettlement agreement entered into by the Initial Settling States and the Settling .,, Defendanta on March 35, 3996. , ^]nitial Settling Stetes° enenne the States of ! i Missiesippi, West Virginia, Florida, and Louisiana, the [bmmonwealth ot Maesachueecta, end the respective Attorneys General thereoE. ~ -a w m .7. ~7, i.6~ 2, 9o
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m:?licr.; and p:avided f'-1-taer t::at LiSgett spell noc ke obligated pursuar.t hersto to bxeach pre-nx!sc.ag legal ouligacier.s, i= any, St may have wStS respect to the matters covered by sect'.on 4.5 lar,d s:a_l use Sts reascaable best eL'orts to miniai:ze t`ae degtee to wh'_ah any such obligations would Impede its full compliance therewithl. Fot purposes of this paragraph, the phrase "net annual onc-o2-packet costs" means the excess oY (al the additional out-of•pocket expend:tu:es incurred dux•ing a paoticulaa' year by LLggeCt in ccmplying with the matters specS!!ed 1a sec:!on 4.5, over f`'1 sav!ngs, 1^_ any, i: out-o:- pocket e.vpendituaes realized der_r:g such year by Ligge:: directly fram taeimFlementation ot the matteas covered by Section 4.5. ; 4.7. I!, when and to t^e extent that the FDA Rule, in• whole or in pnrt, beccmes an e^_'cresable legal obligation b!ndiag upon a_l o: the Defehdants, each Se:tling Defendant w!ll casp'_y tSexawah, without ecne!desatitrn c: any limits oz excepticns bera!n. It the FDA Rule does nct so become such a legal CbllgAt:on, Liggett shall, dur:ng the duration of this Agxeement, continue to comply with Sectioe. 4,5. 4,8. Each Settling Deteadant shall not qse cartoon characters, such as "Joe Camel•, ia any of its advortls!ng and ptomotional materials and activltles with re®pect to tobacco ptoduCta. No Settling Detendant shall enter into any new -"14• 40 C A
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. Oct-28-98 19:39 From-JONES DAY N Y I I 1 .a7?OpNETS AT I~aw a Arent Faz R.M1TOer PiPTpfl & 7UnM. P`LC ,050 Canrea•c.rc A.erwe Nw w"mngtpR 0. 2C03a•5339 R,one 2024574000 F.a 202IB57ro795 a.no eronqps.cam Ocsober 8, 1996 Cberie Dowd, Esqwae Ncss dvlotley Laadhols Richardson & poole 51 Meetusg Svsec Suiw 600 Charlesron, SC 29402 RE. 212-755-7308 T-044 P.34/99 F-044 Cours, i]isuics of Pucrsa Ric®, Cas® Mo. 97•1910 (JAF) Dear Ms. Duraad: Wwm9 L, xc6lonc. O,rea {201) 857-6.22 Pe~e.~CO®utncioe com ;, U.S. Aismcs r1s we discussad yesterday, cbie lctser arbowledg®s aaceips of ft 9abpocssa isquod by you in canuscaan wuh qu above-teffereacod wion served an Areas Fox Kissmer Ploskip & Kahn, PLLC ('°Aresas Fox"I, aad seerees as wristea ab.jectioaa pucssaaas to Fed.R.Civ F. 45(cX2)(8) to The scope af the subpoetsa and sequeses for doctcuenK eonwiaed tl9ereia. This lessa sess fossb the pTiacipal objecdaus to the 9obpoeas sarved on Areru Fox. 1 vaelcosme she opPQtsutsity rc discass thcse objeclioas with You. IB is sssy bop® rllat you =d 1, aiong wius counsel far Liggea Group tuc. =4 eaY oshes inseseszed pesaax, wiil be able to agree upon a scope asui alaruses for clso production of does>nsesaes consisurss Wrtils ft oeeds of yasu case while still pmusung Aaessc Fox ai9d Aasas Fox's pt,espu aod forraer cl'aeais frosa wasecessary burdea asW invasion. 1. . TbRe ase several patoasisl aswsuey clies~t ptivilegt issusa tlsat muse be tualved. Piaac, it is clear slm ft scope of the subpoersa include3 araatesisl ft osd9wsity is ps9tected fsosa d'aac®vcay usd psoltibited &am disclasua:e by ft ®etoxaeytlieas privilege- To ths exuns shas osherwlse xapoessivc documeass arc prooecte4d by the assomey-cliast privilegee, Aaeat Fox objeeu zo tbar pa®daacnou. Soemu#, ft ocafJe of she subpoeas qssy eacorsspess mettaial oubjeec la ®laiaas of ptivllegc by achec,, ssich as zaaxs=ixl subjcu so a joisu defesac privileg®. To t{s® ®x;eat shrt otiur+vise responsive docutraeats may be suldecs to such clsima of paivilsge, wtatss Fox abjecu to ft produRioa of tha Miraial uatiE sWCls time es ft objectioas aro reNOivbd. +®Cr~Nr:TON DC AEM,TCR/GiY7 {t.Ga/ES7r147.GnAlr pPMtS4u0i ML$W GEN 182081 ® N
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N 1 6.4. Liggett sha'_1 pay the reascnable and necessary m expenses of the administration, a!lccation, and d:s:aibution of ti .a m a the Settlement Fund; prov!ded that 1lagett sh®1] not be ohlicat®d N no °~ to pay.mare then $1 million in any year for ®uch expensee. Z 6.5. Since the Settling Defendants are provid'-ng C7 ~ _ ~ ` hietoric and valuable cooperation and other considerations under z this Agteement and the Mandatory Class ASreement, the awounts 0 s payable hereunder to the Settlement Fund shall represent the max;mum emounts payable to the Settlement Fund under thie Acreemenc and the Mar.datory Class Agreement. 6.6. With- respect to eaca Settliag State, in the event e: the entry of any final non•appealable mcneta-y judgment in , auch Sett_:ng State's Attorney Genesa)-Action lother than by way of settlemencl ageinst any cne or me:e of the Non-settling Tobacco Companies, then the Settling DeSendants shall have the right to reduce the payments they are obli_oeted to make pursuant to th:s A:reement to the extent necessary to make /i) the then P_eae:t Value of all amcur,.ts theretofore paid and the=ea`.ter payable to that Settling State pursuant tc this Agreement by the Settling Defendants (such amounts being calculated for purposes of this section 6.6 by mu]tiplying (a) the total amount of the Sett]ement Fund allocated to all of the SettSing States in that year by fb) a quotient equal to the Medicaid Population of such Settling State in that year divided by. the total Medioaid Pcpula:icn of all Settling Sta.eslper peecentage point of the 0 ® i A w 2~1 1.029S
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G1/ 11.6511' 98 brouaht against any Sett:z-g Defenda:ft cn beha2f of "c:: Stace(s), the araual payment auuun: due under 9ottions 6.7.2of , t:-iss Agreement fram a SettJ:ng DeSsndant ahull be reduced by an ancur.t eV®1 to the product of (i) the ratio that the Medicaid Pepulation of the States that elect to opt out of the Mandatory Settlement Class then bears to the total Med!caid Population and (ii) 2ok oE Liggett's Pretax ]ncoma. 6.11. IneoFer ae the Mar.datory Class Sett2eme:t Agreeaent is not approved or Se otherwise terminated, the :ett'_erwe^.t r^~nd shall be admSnistered eolely therea!ter by the i i Attor:ey General Board for the bene:it of the Sets/ir.c 5tates, I a:d the percentage o! Liggett's Pretax ]ncone payable under Section 6.3.2-shall, in the event there is Tto Global Settlemene~, be reduced to an amount ecual to the product of li) the ratio t::ac the Medicaid Pepelation of the Settling States then benzs to the tetal Medicsid Population end ltil 20% of Liggett's Pretax ]: ccr..e . 6.12. JL-iy allocatior.s set forth in thia Section 6 among t4e.Settling States and Se:t]ement Class are solely 4or the purposes of.meking the caleulations seb forth in this Section 6 and are in no way binding upon or evidence for the allocations of payments trom the Settlement yund to any retipients thereof. . 6.11. 5ettling Defendants agree not to take any action the primary purpose of whieh is to reduce Liggett's pay:renc obligationa under this Agreement. ® i a v ~ m
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6.8. In the ever.t of a Global Settlement, the Settling De;er.cants shall have the risht to _educe the aggregate nayme^.ts due from Liggett in each yea: pursuant to this Agseement so that such aggregate payments shall be oo more than the leseer of (A) , on a Cost Par Cigarette Pack basia, one-third of the lowest Cost Per Cigarette Pack due in such yea: from the Non-aettling Tobacco Companies under such Global 5ettlement end (B) on a percentage of Pretax %ncome basls, one-third of the lowasc percentage of Pretax lnccme due in such year ircm the Non-®ettling Tobacco Compa^iea u.:de= such G]eba? Settlement (sut.`. verce^.tage to Ye computsd as i' the payments due from such companies ware included in rbve'uee arxd ea:ninga/ . 6.9. Ligcett ahell receive as a credit agaiast any ar.d all amounts due hereunder, an.y and all amounts it is zecuired to pay under a Glcra_ Settlement. 6.30. 3n the event that one or more States elect to opt cut of the Ker.da.ory settlement Class and aetior.fal are In 2000, Liggett's payment would again increase commensurate to its increase of .1 in Ptaz•ket Share to 12,150,000 ($2,637,SDD + ($2,612,500 x .3/3,9011. , . Liggett would not be entitled to a^double reduction" for a decrease In both Pretax Income and (Qarket Share. Thus, if Liggett's .25 point drop in masket Share in 2998 were accompanied by a drop in psetax Income between 1991 and 1998 from 631 m:llicn to *ue million, there wouad be no FSasket Share reduction, as Liggett's payment obligations -{25% of Pretax Income) would have already fallen from 52,150,000 to $2,000,0D0. I ® y 0 A 9 tj {.6~c98
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Defendent shall apply, to the extent permitted by law, to its own Joimt defenses or other privileges. To the extent that a Settling oefendant hae a good faith belief, or one or more Non-settling lbbacco Companiea claim®, chat, documents to be provided pursuant to Section 4.3.2 11) hereof may be aubject to a joint defense or other privilege lor a claim of such privilege) of one or more of the pon-scttling Tobacco cospanies, such documents ahell be depoeited under eeal for jZ casesa inspection by the Settlement Court or a court in which a Settling State's Attorney General Action is pending, together with a statement to auch • conrt that such Settling Defentlant hae concerne as too whether some or all of such documente should be . protected from_diacovery, and the Parties agree to request that such coust shall retain juriediction to resolve that issue. Liggett will participate in proceedings, Sncluding by way of court appearances or declarations, concerning issues of whether sach documents are diacoverablep . !3) ofEer their employees, and any and all other individuals over whom they have contaro3, and help locate former employees, to provide-witneas interviews otsuch employees and to testify, in depo®itione and at trialr it being understood and agreed thtt Liggett will 0 ® ® 0 ~ ~ ~ ~ m $ 521,6P298
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Oct-28-88 18:33 Fram-JONES DAY N y 212-755-7308 7-D44 F.Ib/99 F-044 Issued by the .~ I1NIT'ED STA'I'ES I]IS'8'Iii_GT COURT ' 8T5rSitCr OF THE DYSTRICT OF COLLFMB$A PEDRO ROSMLO, ET AL. K SROHN ~ WIL3.ZAl6F+OH TOBACCO CORPORATZON ET AL. Si7BPOEN,9 IN A CIYIi. C.ASE raSehuNdta9, 97-1910 (dAF'1 United States Dasxrict Court for the Dlstrict of Puerto Rico T®: PatLon, Eogg¢ & blow Suite 500, 2550 M St:reet, NW t~ Hash3n9tora, PC 20017 b-a 70LIARECOMMANPF.AtaappearlnIItetlnaeaStaiespiskletCocxtalviaplace,aale,anatimespecrfeaaelQwtaieatity rn tJ1e aRave CeBe. nu+:atESTuav+ a.rF ra eW Q YOU ARE COMMANpE.p to appear at rne placa, oace, ana time specihea ®elaw to testrry at trie taxUtg of a 0epasrlian in tne aba+e aase. #..ceoFC0-Oar.2+ 10 YOU ARE COMMANpFD 10 praOWse ar'a permb ineperxian ens7 capyln8 at 7e to9rawinp qosaarrentg ot opJeqB 91 vie ptacF. aate. i;nd:rme ep®ce;ea taera+r ptsl aaamerns ar mJects): See Attachment "Ar" Koa Patton, 8oggs & alOta Su$xe 500, ~550 KSKreet,NWr Hashington, DC 20037 sxSl:arm7Mf 10/15/98 69:00 am q YOU ARV; OOMMANQEA in pprmp Vtsp8ctlon ot Ite to;lolrirt® premise5 at Ate a8te ¢(Iq tlrt'te 8peqt+es8 GetoW ~ . Any orSankaiton not e Qarry to Inls s4lnltlat is Suppq®na9C tarVte taKYIQ at P 4ep®StUOn Srk"i/l tiesj9nate ane or tnarB PtticerS. ~ CirBCtatG, ar mar18¢RiQ SQerttt;. or a41CP JDersans l141a t;onY.ent 1o SeSStty an RS qenatt. RniB rnay Sat tattll. Yor eaqt pErBart ~ qesd®natea, ?ne Rretters on wn+ar ate ppraaft wJtl tesliry. FeAeral Rures ot CtvB Procea+.x®, 9Q(ts)(ry. ~~ - - - - - CY,TE 6.~aDrcaasc qlsuaEUOSmEaa ic .lFS ~ IoR 09o6so41 wtn 1 <44 ~ -2- 1 ,14q6 saaw~seASw.~+r~ss.~oroErvoe~ Chegie parand' BQquire. Alesa l4otley, i.®. &ox 1137, charleston,s_E 29{Q2 --L®S33 720-9284 ~ se.e.a4 rq.rwa"ao+.NWAft ftocs®wM~j 0 4mn a p°rwrQ in a`"-t:"' a¢mr awr dmer at srx+w=, sils 4Ra, unwr °cv° rsanPer GEN 182059
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Oct-26-96 19:38 From-JONES DAY N Y® 212-755-7306 . ® r-044 P.31/69 F-044 neithar by reasonab]e resaicdoas on Cmd nor by doeuexstary desaiptions. As suah, tlte subpoena is overbroad, vague and amb' !1 us aad constitutes a mere fishing expeditioa 3. Lasham has spproxt~ate]y 2,600 baxes of docazneAte wlsieh sapreseat the case liles of lawyers who acprssa>ts4 Liggetd8rooke sfaue 1954 in 9making aad health I aases. At an avstage of 2500 pages per boxes of $1es contain, to rhe best of ox, dsia coasfitutes about 6,500,000 pages. These .'a kaowledge, tho comum and otdiaary maresials used by the lawyers in defenselof the cas®s. 4. PWntiff can obtain aaay of sbe dowmeats it seaks fcoia otha saur6ss. Latbam has dalivacd to Liggetd9rooke s surccessos ®ounsel Lathem's e®pias of L'aggea/flrooke's own company do but caiesain copies of those documen•s used by the lawyers in preparing rheir defense o tbe ca9os ats probably located v+irhip the lawyets' fi1es. Coreespondanoe besvveea Larhatn I(and iw paedecassore) and LiggestBtocrke can and should be obtained from LiggetNBsook predecessors in their representation of I~ . Ibo caur6 doc>.nnejats caeatsd by Laabatp and its ggc:tli3rooke sre a maaar ofpiablic record in the couats ia wbich the cases were paadingI Tn addition, upon inforrrtaiioa aAd beG4 Many of these documonts may be filed in cbe M+aeaote depository. 5. The appsqxdmaui~ I~ ~q 2,600 boaes off'•iles in Lat3lem's possession include an ua]snown nu:aber of documcaus thst~aa eoveaed by the joitu def.ense privilege, beiag daeuaseGzs encompassing comtnimicaa~ons between lawyers represeating clicnts with a : common interest in defending satokiag~ and healeh cases. Tho boxes indude an unlrnown number of docuiaenes that am th I]awy'~ts' work produ®t and are covewd by the lawyers' work produes pmtwdon, such as1 depos~tion, direet a,nd eross exarniaarloaaQaterials used by , the lawyers, materisls re]ating tolthe p*paratioat of exper~t and fact witnes9es, and la.y+eas'. I »y_oocsrlezssa ; 2 0 GEl.} 182078
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8ec=:emer.t C?ass, the Set:l'-.^.g States and 3et:leme^t Class CZt:sel s}.a,3 seek to agree or, t5e seleetion of aa A:bitratar to 00 A dere"ine euch allceation. 7n the event that the Settling States ~ ~ and Settlement Class Couosel cannot agree on the selectacn of an 6~7 C7 T AsbSzzator, the settling States and Settlement Class Counsel will O a petition the Class Aet.ion Ceurt to determine such allocationi it being understood that some portion of the settlement Fund will be allocated to cour,te:-market adveztising. _ 6.2. Settling neLendar.ts shall bave no interest in or res;onsibil'-ty for allocations or d:®tsibutitsa from the Sa:tlr~ent Fund ar.d do not guaraatee a^.y ear..:ngs or insUre aga:::st a:y losses from any porttorA of tiie Sett!ement r^ued asaeca that may be maintained or admiaistened as provided in Section 6..1 atcie. 6.3. 5ul^:ect to the teems of th=s Aczeeme.^.t. L±cgec: shall make the tollowi^.g payments: ® ro N - 6.3.1. An initial payment of $25 rni?lion due ~ ~ ~ 220 days from the da:e of a Future A_iiliats Traasacti®n: and ~ n 6.3.2. Subject to the provisier.s of Secaions 6.6 - 6.22, payments, each-equivalent to 251 of Liggett's.Fsetax lnccme, due 120 days after the end of each Siseal year of Lig;ett. The first payment shall be made with respect to the first lull fiscal year commencing a!cer the date of this Settlement Agreenent. A G~16trL93
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in tae complaint o` t=at Sest]?=g State's At:oraay General Actbon. . - tJpcn the date each Se::.lir.g State beccmas kccnd by this Agreemant, fcr gced ar.d aud'_ic.er.t eor.sideration as descr_hed ' berein, each such Settling Defendant, aha1S for the 'usracion or te°n of this Agreement (whichever Ss shorter) be daemed to and hereby daes relaaee, dismies and d+.ec.hasye each a.nd every claim, x;ght, and cause of action (includino, without limitation, all claims.for damages, restitution, 4ees, expenses, or any other legal or ec':ta:le relaef) , whe:::er k^.cwrn or u:lc:ca:., asserted cr ur.asserne8, which they had, now have er may her®ad:er have as of the ef:eceive date of th!s Acreer.a.^.t aceinst each such Settling: state, its publSe of`ic5ala and employees :n ccnnectacr. w?th, a:!s5nq out ef or related to the acta, fac=s, transacticns, acecrrer.ces, repsesentatior.s, or omiss:cns set forth, alleged or ra:arred to or otherwise estraced in the co:aplainte of the Seca:ng Staces' Atto_^.ey Genera] Aetions. Provided, however, as followe: . 11 7f th!sAgreement expires upon completion oi its fal] te_-m, theae re:eases aet forth in this Section 7.1 shall cattieue a:r.d apply in full foree and effec: with respect to all released elaims which accrued orshalr accrue prior to, through ar.d including the date of such ex~.irat!on, such that such claims shall be forever re/essed, but only as to such cla!ma through and :ac:adS7g suth dazer ia this-Agreement terminates for any reason f 0 0 m > 3 ( 0 A ~ 0 0 ~ a G4J 1,6 4rcz9 8
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bese: re_eased shall not be released and ahall rema!n In exis:emce; p rov:d,ed, however, that tae Stace of C:nnee:;out ar.d t:e Attc,^.iey Gehera3 of Corr.ect5cut sha7], upon e.1ter:ag into this a9.eement, covenant net to bri.^.9 or presecute any su?t cr ac:ion with respect to such claSms ageinst each Settling De!ecda:.t, and the beneficiaries oF this covenortt shal] be the seme bene:iciarSes of the release provided by a11 other 9tates pursuant to S 7.5. it is expresaly ur.derstood that this covener.t 1s not intended to and does nct release or a:Eect any claims that e^e State o! Cce^-ecticut has er may have ags:nst any other perscns or e:t:ties, and in part:culaz is not intended to and does not release or a:.'ectany claims that the State of. conr.ecticut has asserted or may assea aga'-nst any Non-setclrns, Tobacco Conroani®s or any other de:endants in 3te Attorney General Action, 7.2. Except as specifically provided herein, notSing i-1 c!::e A9wesv,e.^.c aha!l prejud:ce or in any way interfere with t.`.e tlghts of Sectl!a5 States er Setc'_ing DeSendar.ts to pursue any oz all of thedr r=ghts and remedies against Ncn•settliig Tobacco Companies or othet parties not re?eased h.ereunder. • 7.3. With respeet to the State of Meryland.,,this section 7 Is deemed to Include the additional statements aet ® forth in Sections 11.5 and 11.6. 8. L7tcluslve Ramedy: D?sm:ssnl c; Action: JLxisdiction of cour:. A A -v ../ 0 L5L0298
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0 Setc'_::g State's a:t0r!ney General as soor, as practicable a.:ter the entry o: judgme^.t. 6.7. :n each year begina'_ag wSti the seccnd year af:er exec::clcn o: t.ha Agreement, the aanua] payment amount due under Section 6.3.2 of this Agreement 4rom a Settling Defendant ahall be decreased in preportian to any decrease and (only if there sha:] have beern a psior such decrease) increased in proportion to any ine:ease, in auch Settling Defendant•s Market Share from the prior year; provided, however, that (a) such annual payment amouat sha:l nct be so decreased to the extent, if any, that such annual paymer.t amount in such year is decreased as a result e: a decraase i-n such Settling Detandant's Pretax Income and (bl euch ennual payment amount aho!i never be increaaed such that the . aggragate amounc ci any auch increases exceeds the aggregate smcur,t of any such deereases.' 3 .1 Exam:. For purposes of this example of Ser.ion 6.7, assume: + Licgett's Pzetax Income Ss $11 mi3lien each year, thus mekin4 Liggett's obligation unda: the settlemer.t 52,750,000 per year. • Liggett's Market Share drops lrom 21 in 1996 and 2997 to 1.754 in 1996, but recovers to 1.9% In 1999, and - thel back to 2.0% in 2000. Reduction, In 1998, Liggetc's amount due ai]1 be raducedby $361,750 to 82,406,450. Sincc Liggett's P9arket Share fell by .25 points or 12.54, its payments would be reduced by la.sl or $141,750 152,750,00o x.129) Recapture of Market Share: In 1999, Liggetc's paymeats wil: climb commensurate to its increase of .15 in Market Share t1.75 to 1.9k).to $2,612,500 157,606,250 ./2,906,250 -10- I K 0 V ~ V S'r 1,6tr~98 ~
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. 7. ~.7 ~phCp, • 7,7.. tipen the date each getCling State L•ecemas beuod by thie Agreemo.^.t, :o: gced and su!acienc ccrsida:atior. as described herei^, each Sett'-:.^.g state and each Rt:c:-ey Genera: the:ecf she?1 for the du:ation or term of this Agreement (whiohever Ss ehcrter) be deemed to and hereby does release, dis-1'-sa and discharge each and every o'_vi] claim, right, and cause af action (including, w'_thout linitation, all claims por damac_es, re®titution, medical mcnitoring, or any other !ega: or eq.•:;a"_'_e re?ie-°), kaown or unkc:cwr., asserted or`unasse::ed, -da:ecc or =ndi:ect, wb?c: they had, ncw have or may heseaa=e: have agatne: each Setcling De:e:dant lincluding itc past and present pa:er.ts. s::bsidiaries, present affiliates, employeas, . i c::ectors and shareholders, but only in such capac:ties, vis-a- v!s, each such Sett]ing De:e:.dent, a^d downstream aietr`-buticn ent;:aes of eettling De!e.^.da-t, but o^.Ey to the extent tha: such downstream distribution entities would have.cross-olaims acadnst Se:tling De!endeat), but does not iz any iaehion release any Ncri• se;;aae, Tobacco Companaes or other de:endants ic any Attorney General Action except as provided for in Section 19 hereof, (il which was asserted In that State's Att*rney Geae-a? Aetion. ~ ar.d/nr (ii) which was not asserted in said ,Action but which ie ®aading-related or othexwise ea ses out of, or cence:ns, the accs, facts, tsansactiens, occursences, represe.^.tations, or cr-:ss?cr.s set fo:;h, al!eged, re:es:ed to or otherwise embraced ® ~ 0 A 8'v 1.6t299
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then Ma:ket Share of sucS Setc__n5 Dader.dart no more then seventy-f!ve perce.^.t (751) oP (-!) the ther. Present Value o: the dolla: amotu:t of such judgme:t per porcentage pei-t of the then Na:Ret Share o` each such Ncn-settling Totacco C:mPany;' prov'-ded that sach Settlar.,r Defendant give vr-itten notice of such reduction and the met!:cd of calculatL-sg such reduetion to the g7applg: For purposes off this example of Section fi.6. asaume: • Liggett has a11 Market Share (±.e., 2 pc:nts). • A Non-settling Tobacco Company has ar. 0% Ma:ket Sha:e (S.e , 9 poi-:ts1, and ia 359e has a final judgm®st entesed aga!nst 3t Sn ar.Attorney Gene_ql Actiorn that requires payme.^.ts 8y such Non-set;ling Tobacco Comxar.y w:ca a then Present Value of $20 million. . - • The P:esest Value cf the anount a aocable by Liggett to the Settling State 1.^. 1996 is $5 millicr.. kesult: 2n 1996, Liggett would be permltted to reduce ita future paymer.ts to the extent necesaary to make the Present Value o: its past and future payments $3.75 nillien -- j,.g,,, no more than 75t of the Pzese.-.t Value o: the judyTent, a:1 as ad;usted for relative Matket 5hare. The calculation would be as fo?lows: Present Value o! Liggett payme.^.t/2 points , - .75 R judgment/6 points Present Value of Livgett Payments .. .75 X 520 malion/a $3,750,000. Thus, the larger the judgment, the leas the reduction. Under this evanpLe, ie the judgment is 526,670.000 or more, there would te r.o redurtion. _ ,290 0 ® i A v ~ ~ m t~ I,6-bS9u
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0 9.2, Each Set:l:ng De!endanc sha:l have the right to te^iitats'this Agoeement w±th reag®c= to that Settling Defendant and w!:h respect,to the Setx_:ng state in which there is a tull and f!:.a1 d:smisval on the merits as to any of the Non-eateling Tobacco Comganies in that Settlinq State•s Attorney General Actioni provided that in the event of any such termination, the payments due iscro such Settling Defendant pursuant to thia Agreement shall be thezeaite: reduced by an amount equal to the p>oduct of (al the tota?l amount at the settiement aund allocated to e_l of the Setnl±ng States at the time of such diamissal and (b) a quotient equal to the Medica?d Poculation of such Settling State at the time e: such dismissal divided by the total Medieaid Fopulation of all Settling States at the time of such dismissal{; prov!ded further that any a:,d all payments vade purwaat to this A4reemeas paoz to_any such termination by such Settling De!e:.de:.t shall be setained by the Settlement Fur.d. The A:ccs:eys General yha:) prov.de the Setiling De:endant with the info-:.at5on necessary to dete:sine the amount reJet:ed to in . su*:pa=: (a) he:eo:. Tetmination under this aectaon does not in any fashion reduce '5ettling De:endants' ®blig.tionw in any other Attorney General Actions. 9.3. Eech Settling Defendant shall have the right at ~ any time durin9 the term oi this Agreement to term:nete this Agreementwith respect to such Settling De?endaat in the event that, in xas sole and exclusave diseret:on, iz deter.nir.ee that -3e- ce-S 1.0293
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1! • priur to i:a full tesn, theae releases she_1 be of no fu^her . force a.^.d e=:ect ard 5et:ling De?er.dancs sha?1 be enti:led to a ead_'t to the ex-ent otherwise prov'_ded in this Agreement aga;r.et a:3c'-aims covered by the release for the full amounc paid by such Settling De.er.de:ts he:eunder, - 2) gxcept es epeciacally prov_ded herei:f, these releases eet forth in this Section 7.2 do not pertain or apply to a-y ether existing.or pctenc:al party in any present or future Atcor•sey General Action. 3), These releases aet 1or:h in this Section 7.1 do r.et i: any way release any releases from claims which may be asserted by a re:easo: involv!r,c'cenduct unrelated to the manufacture and/or eale of tobacco products. - .4) W'_th respect to the claime oi any county, mur.icipaiity or subd_visSon w:t^.in a Settling State that, as of the date of th:s agreement, has b:ought an action against Settling Defendants separate ar.d apart f:em the actron breugh: a5a::st Settling De!e:dants by the Se:tlina State encompassing racl: ccun.y, municipal.ity or subd!viason. thesa releases set forth in this Section 1.1 do not release the claims of such ccunty, municSpality or aubdivaion except for the exclusively State share of the Medicaid funds c]aimed !n any such act3on. 5) The provisions.of this Section 7.2 apply to all - S:ates except the State of Connecticut,- With respect to the StA:e of Can.^•ecliC9t only, the w A ~ claims described hereCn as having ~ -35- m m -n e 0 A a+. Q~ l.6MH °
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® e.i. Exae¢t as otherdiae provided Sn this Agreeme^.t, taas Agreement shall be the ao]e anC exclus;ve _emedy ..r ar.y and a_1 claims oi Sat::iag States released he:eey apa:nsc the Sett_i::g De:e^daats, and upcn the date a Settling State beeemes bour.d by this Agreement, each such Settling State shall be barred f_rom iniciating, assertiag, or prosecutir.g any claims released hereby against each such Settling Defendant. B.a,Promptly att®r each Settling State beeomes bound by this Agreemeat, each sueh Settling State ahal'_ dismias w!thaut pre;udSce i:s eorrespend:ng Attorney General Actacr. as aga'_nst auch Settling De:erda:t, or i: de;e^da:ca have nc: yet resper.ded to a ecnp3atht, the Settling State may amend the eempla:nt to de.ete the Settling Defendant L.cm the Action. , 8,3. Promptly after the date each Settling state becaxres bcur.d by t5}s Acreement, each such Settling De!endant skaa withdraw without p-ejud:ee_from any action brouc_!:c acai7et any Settling etate with respect to c?a:ms released hexeby. 9. Tean. 9.7. Dnless.earlier ter.oineted dn accordance w'_ch the pravisions of this Agreement, the duration of th:a Agreement . shall be twenty-tive U5p yeara frorn the date af this Ageeementi provided that in the event of a GlobalSettlement, the duration of this Agreement ehall be equal to the duretion of the Global SetLlement. -37- Z9L 011298
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bankr~ntry, i:aclveac~ or :eoryan'_zat'_cn cr relie: or protec::cn c: debcora er othe: pr9ceediag seek'_ng the entrf of an cr:e: fos relie' or the appo:ntme.^.t of a receivez, t:useme, costodiarn or other si:ni]a= cSiscial for it or for any patt cf its property _ (each, a"oaticrvptcy Preceed_'ng"1. The Sett]!:g States ack:cwledge and agree that Brooke Group has the ::ght but not the ob?:gatior, to cure and to perfosm any and all cbligationa af L:ggett under this Agreement notwithetanding the occuwer.ce and cont:.^.uatiorn o4 any Bankruptcy Proceed'.ngw!th reepect to Ligget:: prov:ded, however, that until such time as Ligcett dec:des w::ether to rejeex or assume this Agreement, Bsaoke Cro4p ahas: have the ca?igation to pay the annual iastallments as prov:ded in Section 6.1.2 hereof, and so lor.g as the Srooke oroup is paying ell amounts due hereunder and no such payments are _vo::able, then the Settling States waive aay a:d aa r:ggas they may have net to accept suoh cure or pertormance in any 6a:kruptay nrcceeds^g. 91. S^.try o! Good Faixh Sax Order on tbr.tsibutiore and Inc'eercaty ~!ms ]1.1. st !s the intent ol the paxties that the payments to be made by Liggett with respect tc the Attorneys General Aetions settled hereby, be limited to those payments set forth in thSa Settlement Agreement, and that Settling Defendants nat be resper.aSble for any payments relating to any con:ribution or indemr.i:y claim aseaxted, o; to be asserted, by any non- 97 j,C) 1,I L9O
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cco mer.y acatee have opcedout of the Ma:.detory sezclement Class a.c9 have ntt r-rsolved such cases with respect to tae Settline De`endanc by beconing bound by t`ai® Ag:eement !n aceo=dar.ee w+_th the te:ms heseof; pmovided that such Setlli:IO De9e.^.dant give wrlt:er•, nctSce of such te:-n!nation to the Attor..eys Ge.^.era'_ o: the Settling States and provided further that any and all poymentc due up to the date of much teanination made pursuant to this Agreement pr?cr to the giving oi such notice by such Settling Deeer.dant shall be retained by the Settlemetit Fund. Such terminaticn must be exercised no later t~a- aixty days a!ter tae date that Settling Defendarts dece:^o!.^.e hcw maay states have opted out ot the Mandatory Settlener•.t Clssc. 9.4. in the event of a tez:nl.na:!on of thoa Agreement' .w'_th respect to any Settling Stecem such Settling De:endaat shall !x ant!tledto o_`'_•set any payne„ts made to such Settling State p:ior there:o agaSr.s: any judgreats therea!tes onta!ned by such Se::'.S:g State against such Settling De-er.dartc Jn an Attcrney Genesal Action. ' 9.5. 2: ar.y Settling De!endeat subseguer.tly withdraws frcm this Agteeaent, or th:s Agreement, for whatever reason, is teani:.ated other than by reason of expJ:ation of its tem, then the applicable statute of ]imitations or ar.y slmilas time requirement for a Settling State or a terminating Settling Ce!enda:a to fsle a c2aim that would otherwise be released he:eu-de: a5a:net, or by any Settling Deie-dant s:all be tolled t51..6~298
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- 0ct-26-9D 16c37 prom-JONES DAY 0 <O !9 ipa t 9s1 S aPO.na ~n ._Cwu Caao o-TE q47-g 1si? SERvEp SEkaEG ~h IPFd~'P n.a.rS) pROOP OF 212-755-73D6 SERVICE 0 T-044A.29J99 F-04d ..~~~.~~. r+*-%nER aG SEA-Aet - a ocECr sertv-t>r~ DECtAPAT1ON OF SERvER i aaCtaro unp9f penetry of peTlury un®®r tna ia>.o ot tne un.iat7 Staiaa ot n;T®r,ca tha: rne toraga.:rg tnto:rr.aoon on:Bmo ;n tne Proof o4 Sertitce 1.5 truq anq carract. Es®cu:ea on .a9tiEa3 aF $(;RvSq ~y -~:4 ~KLJT3 1~'C a a6. fea®rat Rutds ol Ciri) Prpceoura. par15 C s D• p(it]TECT)ON OF PER8OH5 S4daFCT TO 5u6pQENwS. attorn muarg Ici of i:~ aMp anatl taa e rpASOfiiptb aisratto aea4 imD®aa ~.+/ prraen ar ®spanaa an a pataon s1.p3oCt 1a inat a~DAOOna. T'+a n on panan ot rnlcn ma zwppoana .aa +sSMaq anaa enforco trita r ariq aflpGia uport inp pprfY af illOtnpM in DrPacn ot tn)a awty an rapnme s{ncYan rNCn mM mcA.aa. o.t p not ))m)raa to. test 1MOi ana raaSOMaa)i anernay8 fpa. fd) IA)A ParBan Cammana9a 10 pra6i,ca ana pprrntt )napacnon copyY)p at a.aipnataV pPar4• aapar;. aoerR)or118 or ian0lot• 9i. or q5pvcimn ot prrrnms noaC not appaar )n poraan 3( tPo • a7 praarCttqn at 1nap0oaon im)aqs t:ofirtla4qaa to appaF for sanlon. noDrn® ar Tnai , IdtBwp{ocl to paraorapn~qlt2{ of rn)a nna. a parsan n1aT9aq sa araarao anq par rrsp.cpon anq aooaNy mar n ta qayi aftP anr+ico'Dr a`aAO.na ur oltara 1na nmu sppc)Qoa +cmpQgnca tt a46n tln)p.1a N57 tnan 14 aara artar YerrlCa, aaM1a ) ins PMry ar Snornar aaie®nasaa Vi sM svpPOOna .artton :non Ta WSpaaIIOn pt capsma af i7)y af el of (np eo91®natea )niiz or of in. pr.rnisa4 n aa30an06 )a mpap. Tnq patfy iortiinp irDpOpna inq not pp anmlaa to Nlspost ona eapr matarip)a or M inp prorrYtaO tsGapt pVriMant (a an araar at cM ahtS ay T tTa iLapaana aaa taiwpa• It OP/actWn 7162 Lasn rRaa. ma .a[rr)no Tna S.Apaena may. -pon nonce ta tna Parson Pana9a i0 praaslca, mava at aV nrns )or in orCOr to compei rapuctioa. SLan an oraot to campn prPakcUDn aNP Drotpcr Wa9n w41p ta nOt a pa)T0 or an oTycat er a PaltY froT ilOnnlcanl 138 rpO4nq® from tns )naPactpn arla CppTInB cPrnmanaDa. ') t41On tansy motran tnp taYri at .4Yen a syDp00na 1•i5 t inaa qrp9lti Or moqqp sns S4eaana if et , f)1 104 to aDow rpaionama ii+(ta tor.camppAtlca. 'tH1 (t~arai t partOM1 wna la nat a pirry or pn oMear ar • ta'ra~u .to a p)ace morp tnan 19p mxaa wn.n -.r -•--- -•~ 0 pprson uacapttnas iyL)aatlotnapto+itton7opcla,notc)t3){BSU01 af this rbip. s.rcn a Pptlptt rnaq In araaP to attsnq ma/ Da carsmynoro to tra~a) Trom any oucn plac® ennp) fnr atata 1n -nwn tnn snz: •a naK, or fnUrOquVpi dlsc)q6Wa of prM)apsa or otnOf >rctsctea rnanar ana no oscapuon of wanar qppHS- or 1~'.israpcis a pmrxan to rnrn.p ParCpn is311 a a..pPasna p) ra%r.vas o15;1o:4ra of ••raao Saqpa cr otnaf aonfednna! rasoucn. a4Ya~QOmant or eemr.orcu) imcmSSaen or t33 rpqY.ror qiSGiaarra of an _nrS/a,"o eapprvH :alnian or wtarrnanoq no) aaOripln® apoci4a asOrtta u c;,e..•rEPCa6 ~n a,apwta ana reawtte)y rtarn tne a,:ier) s sv~P. r'taCa rsr rCqsa9T af Gnr party. ar ' p6) rsqwrca a porNon «no !a nor a parTY or an orncar PI a pan, sa ma.A a..pacannat saponsa ;o :ra•w more enan t0p rmpi t7 atiana ena). •na parT rrtaY. 10 PPotaet 8 Plrion S.A{ie: jo <r inoareq Ay tAa aypppona. qwaan of nWGh tna a..opoana. or. n Ina panY In wn0ip pOflalt TM aaap0tna r8 I5569a Sno.a a$wpp°arRW niaq tor )na taaWnam pt matinas tnat ceW)ap oa D{narMaa mat •Alnoui a.AaYa nara{tt)p 4% ;aswaa tnat tna oprtan sa T+nan9 Wa Ewppeana yS a0arpi6a9 rnA pa t0iaaniay aorrp.n.atae. in. Gc,et Rtae ar4or aapaoraccp er proavciwn anh iPan apaclnaa canduaaa tat DuT(ES in RESPCwDinG To supPpEr(A. tll A parton respanamQ to a srppaana t® proas.oa aacumanp SrtaA proaSSa inarn a9 tnf) ara aipl 6n n1® ryMMTP.Ra1 of b..9YMS7 or qnaH qf®anaa anq liae+ tnam To saROepan4 Mtn tna cat0®ovio t n tna aamarta. IZ) Whin lntvRnai)on sYDSpGt to a vNOpoan$ )a s%tnnaiq on i ciarn tni6 Sc to prnP.9a0 ar aTataer t0 pratoCiroq ai ir)al ProPxqtian Rtilanati. tnB pliln anan 10• rniaa osprpSSN ana snii p'p SK)paRpa ay a a.Knanon ot tnp naKs n. r-. 0
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K
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' faam tha dats such Sett]L.g State became bcur,d by this dgreement unt11 the later oi the t:me pezaottec by appte able law ox for oie year iron the date o1 such terrm:.;,aticn winh t4e ei:ec; chat the pactSes sha_I be in the same pos5ticn as they were at the time the Set;lin_c State filed Its original Attorney General Action with respeet to the statute of limitationa, 9.6. Except as may be othereiseapeei!ieally provided in th'_s Agreement, a tezaiination by a Sottling Delendant hereunder aha11 have the e.`:ect of rendering this Agreement as hav!ng no f:rce er e-`!ect whatscever, nu11 and void )b i+, a:d not adm_ssib?e as evidence tor sny purpose in any pendine or lutu=e 1-:!gacacr, i: any ju:lad:ca:cr„ However, a terminationn shall not a:!eet any prior cooperac:or. or require the retu^ of any docune:ts proilucea to a Settling State pursuant to this Ag:eeoeat. . . 10, tn^_o:ceabilStv Ur.)ess ea:lier tersiaated, as to the Sattllne States, this Acreeme:t and each p:rovision of or obligatlorn a:ia-^gfrcm th;s Ag:eemeat aF.a:l continue and remcin 8u?ly eMecutory ar-d en;orceable if a eettling Defendant institutes or ie subject to the institutlon against it of any proceed:ng or voluntaay caee under_title 11, United States Code, or other proceeding seeking to adjud:eate it Insolvent or seeking ]iquidation, winding up, recrgar:zatlcn, a:rer.gement, ad,ustmeat, protection,--alie: or compcs:c:or, c: it or its debts under any law relatir.g to -4 0- 5S 1.0~92-
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v 0 to b~.d:ng ar3!csacier. in ae.o_3anee w!th the rules oi the amer!can•Ax5!araticr. Asscc!at!on. 1(lnna•• 7avraeC Nd'~tft. 16,1. Is Is the istent of the part!ea hereto Chat the settl!np De.endanta enjey a p:efa^ed pos!tion with reapect to Ncn-Settling Tobacco comFaniee, in recognition ct the settling DePendants' w!llingnaes to enter into thie Agreenent. Accexd!ag1y, it is generally contemplated that settlements which involve all Settling States a;d a Ncn-Settling TcbaeeoCompany (a "G::up ot.^.er 9ettlene^c") cr inve:v!^g one Sec:1:ng State and e Non-Settliag Tcbacco Compaay.(a "Siagle State Oc%er Sectlemeat") s:.aa mee: ceatain m:amum rtqui:emente in terms of the in!tial: pe_1od!c or lump sum paymencs to be mode by the Non-Settling ' Tob;:nco Compa:y (each a"Benchmark Figure•) . The recital of tdese Benc lroark F:gu-es F.e:e!n Is solely for the pu:,.oaae of ir.scriag that the SeC:1Snc De*.endants enjcy a prefer.ed position w;:; res,aet to Nor••Sealir.g Tobecco companlea ai,d is not i:tended 1•^n any way to Yealect the value of the Settling States clatms agaiasc Non-Settldne Tobacco Companies,-and nothing Sn this Agreement Is intended to reflect the value of those .claime. For purposes of this Section 16, a settlement involving a Non- Setcling Tcbacco Company and acme, but not all. Settling 8tates ahal.l be deemed a Single Other Settiement,and the preferred _ poa:tion c' the Sectling De!endant sha13 be gcve:ned by -4E- 29L5~298
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allocable to the stare of Ma_1land.as calculaced yu_suanx to pr.vlsicne a! the Atto_^.ieys Ger.eral set:lement Ayreemer,t). It is - the 1`tention of the parties that t:':-s Release provide for a pro t.anco reduction at any damayes reeoverable ayainst all uthes tor:feasors Sn thia acaion, and only if 6ettliag Defendants, or any of them, ate.adjudicated a joint tortfeasor. This Release - does not provide, and shall not be oonstrued to prOv_de, for a reduet:on, to the extent ot the pro raca share-of Settling Defendar.ts, or any of them, of the damages recoverable in this action agaSr.st all ethes tor:ieasora. If a judgaw.^.t reduction occurs cn a pro ca.::o bas'-s as provided in thls Re:ease and if a ntr.-aea1S.-.g joinc tcr:°eascr pays more then its pro ra:a share of the judymenc, that joint tort:casor shall race?ve that porticn oi any future payment made the:Vafter by Settling Deiendanta in ecccr4ance wit!t the Attoraeys Ge.'.eral Settlemen: Ac_ree.T.erc that is (1) beyond ehe a:..cunt of the pro tanea aetoi! prov!ded for in -tha Release, and (2) attribctable to that part of clae-na against tl:a;.jo:1t tcrtleasc: tor which Settling De!e.:dents are jointly aad se•ierallvliable." .17.6. . W!th respect to the State of t4aryland only. the Attorney General of Maryland shall cause a competent appraiser to atake a calculation of Ptesent Value ef Settling De:endat•.ta' total aggregate payments allocable to the state of Maryland as provided far under this Settlement Ae:^eement, which valuaacn ss referenced and bracketed Sn Section 11.4 hereof. ' `~a i.6b2 99
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Oct-26-96 16:54 Frcm-JONES DAY N Y 212-755-7306 T-044 P.99/99 F-044 LbTZBT Aiag 3
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• de?etdant has a r!g`t under appl_cable law of contr.but:er. or 0 !:demre`ieation aga'.at t- ne Setai^y ^efend.r.ts. Th=s secticn w_11 noe apply to any agreement or ur.derstandir.g, known or ur.ieicwn, written or other.dae, with any non-aettldag de:eadant or any otSer party that entitles any non-setcling de!endant to i-demnity or contribution from B:ooke Group or Ligyett. 11.4. Shoulda Settling State receive a final monetary judgment againat a ncn-settling defendant whioh then results in the ncn-set:ling de:endant being legally entitled to require a Set.linc De:endar.t to make payment tewasd that judg:nent, the Se:tl:ng States sia:S seek Ccurt approval to reduce the judgment by a: encur.t eu:ac_e.^.t to ;eault 3n the Ssttl:nc Defendant havLng so obligation toward the jud-oment. _ . SS.S. . The provisior.s of Sections 11,1 - 11.4 apply to all States except for the State ot Ma_ylar.d. With resFec: to the State ct Ma-ryland only, the State of Marylar.d shall, cpcn e-ter:.ng into thie Agreement, execute a release of Setainc L`e:endante which ehall state, amcng other th:age yrovided for in this Agseement: ^l-. the event o: a verdict against nor.-aetcling de!endants in this Action, and in the event that with respect to such verdict, any Settling Defendant is adjudicated a joint toraeasor in any manner in this Action, there shell be a judgment reduction from such verdict aceounting for the status o[ 8ett.1"s.^.g De:endante as a joint tortfeasor in the amount of Slthe F:eser.t Value of Settling Defendante' total aggregate payments 89 LOZ9$
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L
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I and _eraoa-.ar.ee by Sce.". Sattl:ng De`e.^,da.^.c e_ thLs Ag:eement and the ccr.sueenetion by iti ai the act!cas cantemplated herein have bee.^n duly aceewrized by all neeessa:y corporate ac:!en or, the part ci sueh Settling De!endant: (!a a the Agraemsnt has beea duly and val:dly executed and delivered by such Settling peier.dant and constitutes its legal, valid and binding otl'_aatioe; and ISv) thie Agreement does not violate the charter o`_ bylaws of such Settldng De!endar.ts or any Agzeemant to wh:ch the Setclir.g Defendant is a party. 24.2. Sach Settling State .epreseacs and warrants that- puriuent to its statutory and/or commen law authority Iif it has aa regR:ls!:e power ar.d a:itho:'_ty tc execute, deliver and per:otm this Agseemenc and to consummate the transact!ons concemplated ~ hereby; lii) the execution, delive:-y and perforoance by uch Set:i!:g State of this Agreement and the cor.summsticrn by At o& t:e ac:Sc:s contemplated here-r. have tes: d,ly author!zed by all necrsae:y action or. the part of auch Settling State; and (ii:) the An:eeme::t,haa keen duly executed and avtho::zed by such Settl!ng S:ate and conetitutes its leeal. valid and bindi^.g . ®bligation. 95. A-bt*l~^. ln the event that the Partiea are uneb9e to agree, after goed faith eltorts, as to the dete:-minatian or eelculation for any applicable ysar of Market Share or pre:ax income hereunder, such determinetion or calculation shell be submitted -47. l9 !.0298
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® 1 74a!l1_ate of sCch eJt7r! .1d~iliaCe il:;tiS the Ve:d--*--, or jndb~ e^_ becomes Zinal anc non-appealabie. . 17.5. Pr'-os to a ratu:e A_::liate Transaction, Sett'_ing Defender.cs sha?1 nct enter into any agree:oe.^,: with any proepectSve Futase A._:.'-iete which d:m:nis.;.ea or iapasra the prospective Future ASiiliate's assets, othe: then Sn the escablished and/or ordinary courae o} bus:uesa of such prospective Future ALFiliate and sha21 uae best e::or:a to prevent such prospective Futuze AtSiliace from dininish!ng or impeiring such assets. In the event o: a Future A::SSiate T_ataaction, 8ettling States resesve all of theS: richts to prevent the Future Affiliate trcm d_:n!nis}::ag ox smpa?ring the Future A_-52iate'a Tobacco assets, ocher than in the es¢ablished and/or crdina^y course oi business ci such Futu;e A:°tliate. 17.6. WCth raspert to subseca on® 11.1 - 27.5 above, nothi,g in these provis`_ons, or elsewhere in this Ag=ee"tent. limits the authcsi;y of the Atto-aeye Feae-al to cyaaenoe any tsar.saction wF.ich they reaacr.ably believe is Sn v:c:ac.icn of lederal or state ar.titzust lew. 17.7. 7o the event of aFutu:e A'iiliete Transaction eYter-which Liggett remains as a separate entity auch that Liggett's Psatex Income Sa readily es:.culable,, Section 6.3.2 hereof shall remain in effect wSth respeet to Pretax ]ncome solely-attributable to auch separate ent;ty. In the event of a Futvre A'f831ate Tsansaction. Sectling Defendants and the .Sa-. ~ OL±.MV29B V a N N. 0 i m z ° A
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~ s^.A.^~ or rrxmsfcaA - f 1 0 . Ity. AW r ~e- 4 d.ea~-. ..YY Gn_asa_ ' m UaN--7~1 `°=tJ^77 b ~ b'J.:'B C 7~H :aNSEY PI ~ ay ur. LwL,-o..e,P .. se.: a. •ara l1C.era.y :.ra:a: Z W T 0 (7 ~ ?a:h of 1YW ypM , [ . / ' / 0 z m w I'r L e1t%~i,{II'°^°,co bi,{II'°^°,cob ' ° vC ~' Y ® ' a 0.t9 aC:~:..eY O -azi - °° Ta:e~ `~1 tr~ 97 ® Z 8:a_`S OY oxm~:rtonp ay J:aa - :. aT~ y;, AS:oP•.ay 6peO:a°. $dS\~ ®y saa akra_se 9[, I;Eaii29Q Wse: Z Za qz Ascwaey aeas:a: v 0 m V m N ~
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' Sn01 cal6ulation O.°. Present Value e: Payme.^,ta aSloca::le to t~e State oi Marylatd unzer this Agreeu.ent ahe!l be t9e amcunt atated In the braeketed pcrticn o_ the la^guace ctetnd Sn Sec:icn 11.4 above. 12. Tax c_tatus o4 SetLeme^a F`!nd. - 12.1. The Sectlement Fund created under t.k1e Acreement w!11 be esta5l3shed and ma?ntalned as a®ualiSied Set:lement Fund ("Q5r^) in accordanee with Section 085 of the Internal Revenue Code of 3986, as amended, and the t-eyulations pronulgated . , i thereur.dez. A^.y Se:[ling De'endara ehall te- pe-n![;ed, in its disc=e:ion, and at its own cost, to seek a private let_er ril:ng from the internal Revenue Ser+ice (^1RS°I regarding the tax status of the Settlement Fund. The parties ag--ee to negetaate in good ta:th any cha:ges to the Agreement which may be necessa.ry to -. obcaln ?RS apprcvs'l of the Eattlaner.t 9und as a QSF. 12.2. 7tepresentatives o_' the Settlir.g States and the settlement Class will be appc.nted to act as adm:nis»_atoz o: the Set:lement Fund, As adm!:Sstsatot, soch repzesentatlves w1?1 ucdertake the tollowing actfone in accordance with the resrulacions under IRO section 46aH, la) apply for the tax identlflcatlcn number required for the Attorney General , settlement Pund; Ib) file, o= cause to be fi]ed, all tax retu_na the Settlemer.t Yur.d is zeyuired to file ander tedezal or state laws; 4c1 pay tsam the Settlement 7und all taxes that are impoaed upon the Settlement Fur.d by Sedexal or state laws; a°d (d) tile, 0 N i N N .45• T ® A 09LO298
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or cause to be Pilea, tax s:ecz`_c-s ava'_lah,e to the Set::ement Fund, i:.clud'_ng a.equect :or a promet assessment under 7RC aee. 6501id1, it and when the admin!stxator @eems it approcraate to do so. 12.3. The Settling Defendants, ae transfe=ora ot the Settlement »nd, ehall prepare and file the infotm®tion statements cor.ce-7iilg their settlement paymente to the Settlement Fund as rey-uired to be provided to the 77S pursuant to the rec_v:lations under 1RC section 4683. 1] r•'^^• c• De°as2t ot Set'1:nc De!-da^t. . 1.^n the event a Settl!::g DaLendant faila te maRe a payne.-.t due and ow:7g under the te:-is of this Aoseemeat, or In an default ot this Agreement In any otbe: respect, P1aLntii_s• Cour.eel sha71 co notify the de_°aultiag Settling Defendaat, wh:eh shall then be given 60 caleyda: days to ^cure" the de'ault. Y: the defaulting Settling De=er.dant dces not "cu:e" the default in the time provided In this Section 13, PlaintiLa' Cou.^.sel may app:y to the Court Lor rsl:ef, In add_taor, to any oth.er remedies it may have hereunder. 14. R oreeen-a- nr.a.and Warraatiea.. .. 14.1. Each Settling De:endant repre.encs and waxzante that it (i) has all requis'_te ecrrerate power and authority to execute, deliver and perSom this Ay.'eement and to ecnsummate the transactions contemplated hereby; (i1) the execut:on, delivery ~91.bi~~98 -46-
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0 setaing defendant that may as_se lran any oE such At:orneys General Actlcns. It 's fus_he: the ittenc o: the par_ies to tyis ag:eeme.^.t that in !S1=neeota and Waconsin the release cf the 8ettline De!andar.ts and any rights od ncn-cettlsng de:endanta to cantribution or indemnity shall be construed as a oa~y release, aa ueed in F±er-_dneer v. Hoaez, 23 Yligc.ad 1e2, 124 N.W.2d ]06 (196]); F e . en l- oe, 269 N.19,2d g70 (N!nn, 3978). 7n order to e'_':ectuate this intent of the parties, and only in order to o!Eectuate such incent, tha partSes agree ae follows in this section 11. 11.2. Subject to, and as pro®ptly as reasonably psacticable, under a,;plicable law, the Parciea sha11 recriest th ; at tweresoective eau::s Sa the Attor7ey Gene:al Actions enter , orders be:rin9 and prchibiting the eom.meneement ar.d proaecuticr. c! any c1aLm ar action by any nen-settlinc deie.^.dant egainst any 6eto]'_a-c De'eldant, ir.cluding but not limited to any contributicn, indemnity and/or subrogation claim seeking reia+bursement ier payments made ox to be made to any Settling State lor clasms settled under this Aqreement. Seto.ling De:endaats shall be entitled to dismiesal with prejudJce od any non-aettling defendants' claims again®t them which violate or are inconsistent with thia bar, it granted. 11.3. The Settling States ehall not seek to collect any amount on any judgment against a ncn-aettling defendant to the ex:ent, and only to the extent, that such non-settling Lr J!.6~z98 .-42- .-~ 0 N m ~ O A A
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! ® THE hlli5HlNbIUi+ t•uuni r GL 1-6trL98 ~ar[r.y n~-eni.e= Jutte=ey 9awsa: ~ tC.= 97 S~/fA~ ry~ tly ~ f ~ /N.rU/e~ 'see a, ae Attur-e.y 0ana~ s°AZ O~ s ,ic:;e ~ s _1dl~y QC:a L=sv~~ aa::ra.y ae.,r..: r.•n.-e ar ra±r~a•~c ay l :I._. ° t• :,~~n . ~! - ~cr d:nn•3 z. 'l D.a.r_S 1_a,_sa seA-s r er.- - v sy~__~ aiz e_aay •Ataernay ser.®re1 '6t! •L -) ,('ID -q
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. • xespect to suchBatt:'_ng De!er.dar.t te replace or ncdi'_,, a:y cr all of the terme of this ASraement with, or add to thia Agrsement, any or all such more tavorable te;-a® (ad;ueted fc: relative Medicaid Populatlor•e). - 37. 17.1. The terms of this ASraensent shall noc be birddng upon or applicable to a Future A£filiate a: the Setnldng Defeadacts,except as provided £or,in this Section 27. 27.2. la) In the eventoi a Future AS!llisce Tta^sac:.!cn,.the Settl:ng States sra:) not seek to e:jcia or otherwise cJ:alle.^.ge a spSnoL_' or l:ke diewcstt:cn c! the-stock or assets of any Alfiliate of the Future A!S_Siate wa ci is nat eagaged in Dcme8t3c Tobacco Doe7ations: The Settl,tng States •resewe the right to seek to enjoin such a spino`.! in the event that such spinof: or like disposition 1e ®ought by Scmeone other than 8reoke Oroup or a Future Aifiliate or an A:tiliate of a Future A:!iliate. N ~ ib1 In the event o! and aQ e a AJ uxv m .~ t r t ~ Alaliate Txansaction: (a) the Settli::_o States each reoesse o°. lpursuant to, n°+*=4& nulmdis, Section 7.3 heseoP) and covenant not to bring suit iot any clsim so Yeleased aga6nst,any A:liliate ° of the Future AtSiliate, other than the Affiliate engsged in . Domestic Tobacco Operations; and lii) if prior to the Future A`falza:e Tsansaction, a Settling State shall have ct:ta_ned a ve:d?ct or judy-mr-t i-1 its Attorney General Action, against n1 ~ -53- ~ I i 89 i.E~29g 0 t
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Oct-26-ge 16:56 - From,lONES DAY N,* SworA to btfore ute by Mero fi. Kasow9tz, who is PacsonaYly known to me un this 23rd of Mateh, 1997 ~blic ~~~!VO• 51- 505-164? QUCA14uB 1n MW yoo."!% tb~~y ~- t~d..~°! ttmr~+n,aJtcvs e~r,var.,~ T12-755-7306 0 T-044 P.gg/gg F-044 . he(.. f o 14 - Marc 8. Kasowi GEN 182157
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Detendant's ?retax Inccme ar.d Ib) a quet'_ent eguel to the Medicaid Pcpu;aticn of the Settling State diveded by the total hlec'lea'_d Pogulat`_orn oi all Seca'-ng 5tatea. a5.~.6. The Besch.merk Figure cet forth in Sactione 16.1.s - 16,5.4 does not re=lcct in any fashion the Settling Statee' views as to an appropriate settlement or reaolution with any von-Settl?ng Tobacco Company. - 36.2. Exeapt as pzovided Sn Saction 15.1 he;eof, Sn the event ahot, ®uhsequent to the date of this Agreement, any sett_emer.t c: any Settling State's Attorney General Action .ia reacSed with any r.on-settl'-:g defendant wtich ,ts not a Party _ hereto and s.ca settle-.ent La cn any cerms mere favorable to auch ncr.-settlin_c deSendant than are the terms of this Agreement to i Settling De:e:dant, such Settling IkPendant shall each have the zig?a to replace or mod:!y any or all of the terms ef thie Ae-reeaer.t wit'a, cr addto this Agreement, any or all such more favorable te_^.os. 16.3. in the event that, stbsecuent to the date o'f this Ag:eea~eat, any of the Settling Defendants ectaza into a aettlenent agreement with any State other than a Settling 8tate en te:eu (relating to the then Present Value of amounts payable . under such settlement agreement, compliance with the Proposed Rule or cooperation) that are nore favorable to the State than thcse contained herein (as adjusted for relat!ve Nad:csid Pcpula:?cr.l, the Settling States shall have the right with A ~n!•0298
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N
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Oct-2H-88 18:39 Fram-JONES DAY N 212-755-73D5 7-Ddd P 35J9B F-D44 ® Arent Fox Clteate Atusnd, Esquire Qctob:r 8, 1998 Page 2 'Ihitd, tqc scope of the subpoena is not lirnited to documents rclating to Arent Fos's representation of panies ca the above-refeteneed civi] action an4 as suslt may iqva4e thc attomey- cltent privtlege, or other piivtleges, of other clients of Atent Foz. For example, and u+ithout ltrrtttaticn, Reqtust No. I seeks a2L doctunetits scnt to or trcetved from Liggett & MYers. Inc , I-iggen: Group jne., or 8rooke GrflNp Ltd., relaung disectly or india>rctly, to issues involving smokang and health since 1954. Thus, the scope of this request wouid include any w'itten corr}munication to LtBgett & Myers on behalf of anotlur client of the firrn at any tim: withan the last forty-four years on an issue uudisectly rel4ted to smoking and health. Therefare. the subpoena wouid require a review of vtnually every docuanent geaer8tedL sent or received by Atvnt Fox Cand aIl of ets attorneys and staffl, for any clunt, siace January 4, 1954, watra lirtle itkelthood of idess,fysng asy responsrve docurstents. ldot otily does this invado filea, srFd pateaqal pravilcges, of evety other client of Ascrn Fox since 1954, it creetes an uoaeeessary an8 undue btuuen aa Arent Fox caatt3iy to tbo requitements of Fed. R. Civ. P 45(c)(1). Accardiogly, Arent Fox objects to this aspect of the subpoetu. 2 j~' .~o p~y;f, ~g, ~te tssues tstsed above w'sth regaad to the attornry-citent privnleged4oint defenso privilegc also apply to ntatnial protected fsoat diseovery wtder the Work product 4oetriue. Aecozdingly, Arene Fox objects to tbe pmdqctiAn of at;ottacy work product 3 a+a &s+*c 1nn pma*V an; 'Indu• ®cL+A±! gna Relevara. As explained abovo, the subpoeaa oa its feae would cotapel a leatue search of vit'tw1ly cvery docunaat aa every file opened or actave at aray tiuae from atul after Baauaay 4, 1954. with little likelihood of producinY responsive documeats from sottrces other cltart those ideastiftable as pouatislly caqtaiqing I-iggtnt Group materisl- Such a drrmand is inconsisteaat with yaw obligations under Fed.R.Civ. 45(c)(1) and therefore Arent Fox objects to the scope afthe subpoetea. Arertt FQx also objects t0 ttle subpoC7t6 to tlie extcnt that it compels production of docurarnts not wathut Arent Fox's posscsslqa For rxamplca atui wtthaut ltmuantm, Arent Fox is defuted in tlts subpoetlp to iaclude '-ali psosent ana$ fatsnes attomeys .- agetsu ... inautaacco caraiers ... consult8nss, ez perts, investigatots .. and [persoasl putpotting ta act on behalf of Arent Fox ...." Aatnt Fox objecta to thts de$nition aad respotats to the subpoena an its own behalf only. lu isglu of tqe scope of tt•quosted docuntents, the potential privilege3 irtvoived and titae period covered by the subpoeitg (i.e.,1954-199g), Asot Fox objects so p:nducing ieapansave documeas,s on Ocwbac 15, 1996 as eet fortlt in the subpoeoaL Amtt Fox wiil produce rasponsavc doeuatatts, subject to eesoluuoa of objertions. an a date of tnqtusl eonvesaettce. 4. COA64z=glityn dn addataon to tbe foregoing oi~ecawrss, ttsany of the doc,uaeasts within ttt® soape of the subpoena raay tefer to intestsal Accnt Fox praaiccs. such as billing, GEN 182082 ~
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1a.7. eny judgmer.t by a ccus: that Any pxov.isLon of thie Agreement, as applied to any party or to ar.y circumetance, is lavalid or unen9orceebla sba_t i:: no way a;aeet any other pxovSsion o4 this Ag:eement or the appl_caticn theraot in any other ci:cumscance, and such psov'_s'_cr. sc edjudged invalid or uneniorceable ehal] be enforced to the maximum extent pevmitted by law, 1a,s. This Agreement shall b® bSnding upon and inure to the benefit of the Settling States, the Settling De±endanta, and thelr representatives, heirs, succeasors, and assigns. 1a.g. Nothing in th=s Agreement ehal] be ecnstrued to subjectt any Settling De!er.danc'a parext or a:filiated company to the oblipatior.s or liabilities o! thsz Settling oefenda-At. ~ 1a.1o. The headings o! the Sectione of this Agreement as® Included far coaven:er.ce only and sa.a:1.noc be deemed to constitute part of th;s Igreement or xo a!:ect its eocstruction. 28.11. 'A.ny natice, rar,weax, ilstsuct:on, or appllcation Lor Court orders souc_ht 1n connec.iorn weth this Agreement oz ocher document to be g5ven by aay Parey to any other Party shall be in writing and delivered pexsonally or sent by registered or certified mall. postage prepaid, if to the Settling Defendants to the attention of each Sectling Da=entant's respective representative and tc P3aincL:fs' Courmel on behalf of the Settling States. ' z A A •58- T °a P, 1.6~L98
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Sattlement is less than the 3encamark ?igure, the :attli::e De:e.^.flauit shall :eceive a credit in like amount, up to the amouAt o: the preser.t value of the initSa: paymer.t made to the Settling 5tate hexeur.der, agaiast all luture payment obligations to the Sectling State be:ecnder. 16.1.4. 2n the case ot a Siagle Other Settlement which Sncludes only a 1ung sum or periodSc payments, and w:th respect to the periodio payments included in a Single State OtSes Settlemer.c wY:l-h also includes an iaitial paymenc, the Benchmark Figure shall be that ancunt which cocstitutes three times the P:amer.c Value of aa ameunca pald cr payable by the Settling De:erdant to the SetclSng State hereunder (excluding. SS the S_ngle Sta_e other Settlement cor.ta!ne an Saa:ial payment, the ,~ lnitial Payment hereunder), assumiag, Sn the case of future . payhents, no ÂŁnc:ease or decrease in Ma:ket Share but assuming Ir.:latSon 7n revenues, all adjusted tor Ma;ket Shave, computed as set forth in Secticn 16.1.7. To the extent that the P-ese-t Va_ue n! the lump sum o: periodic payments to be made under a Sang'_e State Other Settlement is less than the Senchmaak FÂŁgu:e, the Settling DeLendant shall receive a credit in like amount, up to the amount of any remaining payment obligataons to the , Settling State hezeundez. 16.1.5. Solely for the purposes of SectÂŁonc ]6.1, the paysrents due to each of the Settlir.g States in a yeaz abal3 be deemed to be equÂŁveler.t to the product of ie! 20% of the Settling 0 N m .--1 N ao m a Z W 0 0 3 9 0i. 0Ccg8
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® • A2fii:ate t:nc:uE:ng the Parent) of t'se Ntuxe Af!:1'_ace, other than against the A'!ilia.e engaged in Dcmeat'_c Tcbacco O;eSacions, such seC61:n9 State saall not aeek to endor.^e sueh vesdic: or jud5ment against any ouch Af_?.1_ate other t:a:•n the Affiliate engaged in IIamestic Tobacco Cperat:ona. 17.2. In the event a Set:lir.g State cbta:as a verdict or judgmert against a Non-eettlin-e Tobacco Company In an Attorney 6eneral Action, and a Setrlir.g Defendant comme:ees a proxy contest or e!mila_ ac:lon a®ekl:.g ccntrol of such Non- setti:.^.g Tobacco Crmpany cr an A::i1'nte tiereof, then such Ron- setc._ng Tobacco Ccmpa^.y or an A:_°±liate tF.ereof wal not be requSred to pca; a bcad i:: order to etey enforceaent of such verd!ct or judgmer.t, and such Settli.^.g State will net seek to ~ en:orce such verd:ct or judgment againet such Non•aettling Tobacoo Ccmqaay cr avch A_`iliate, fox a period of the earlier of ei) oaeyea: from c5e aommencement of such proxy eontest tr accdcn, and 1111 ecm;.letiorn or resolution of the proxy or merger vote. 37.6. 1n the event that auaequent to a Future Afliliate Transaction, and In conformity with S37.](b) hereof, a 8e:c:.ing State obtains a verdict or judc_:nent aga'_nst a Future A;aliate in an Attorney General Action, such _Tuture Affiliate wSll aot be required to post a bond In order to stay enforceaunt of such verdict or judgment, and such Settling Btate will not seek to enfcsce euch judgment against such Future A`[iliate or an -5q- 7 < 0 A A 69 i: 029f3
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® at:cr~eys General ar.d theie tespecsive ccunsel, each agree to exercice bost efoorts to negotiate in good iaith a payment achedu:e to replace that set fos:h in Sect:cr. 6.3.]. Nothiny in th•_a Secticn 17.7 a!!ecte .in any way Liggeta'e payment dcl!gations under Section 6.3.] hereoe. 37.8. -PSOmptly after a Future Af_iliate T:aneaction, a Future A!Eiliate aliall abide by Sections 4.4 - 4,7 hersok. 17.9. Promptly ettas a Futn.•°a A:liliete Traasacricn, SectlinS De:endants and the Attorneys General and the:r res,ective couasel, each acree to exercise best eE!or=® to ne;otisme in good faith a settlement of all Attorney General Ac;ior.s against a Future A!liliate-s Dcmestic Tokaccu Do®ratioaa. 37.9. Aa p.omytly as reasonably practicable after a Future A:a '_late Tzansaction, a Future A_!iliste shall agree to elimina:e cartoor. c:1asecte=s such as ^Joe Came1,.1 from all o: its advert!sir,g aad premctional msterials and activities with respect to totaccc produccs. . _ 3B. M•eral2Apph1!C, 1B.1. All terms of this ASreement and/or obligations created thereby shall be deemed to Snclude a tove:.ent of good faith and fait dealing on behalf of .7l parciee. 18.2. Brooke Group sha?1 provide to the Settling . States at the tima of execution of this Agreement, an opinionin fo:m aatis:actoxy to the Settlirng States from legal counsel for •58• IVe i,6V2-98 0 m .~ IJ
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--~. - ®ATE ~ •~. - ~ a~ -0 SERVEp SgRYEA ON tPRroT NAMEt SERVER Sv iPAlfV7 NAME) a' `O Y1TGE r} ~Tatl+/•~~ Q9CtABATIQ~t OF SARVt~b I a.aN. wiar P.nnsr of p•9~y sa~6ot als k.s of vw uNie~ Si~q@qt anrlc4Ni vs Px.pPa161ngorps.wco sianwnq 1n 1s+. Pwar o1 S.ni34a qvp ana earrsc W7Radis6 on ~ 212-755-7309 PROOF OF S~RV1CF T-044 A.21/9B F-044 Puce C~ k~ ~ 6cv~ - -f}siQ i~rrlcea c°1 J~-d-.g pATE FiFLp A~ aDpRESB PF 6ERVEA VA =% Faa K'+. P.®ral6ia.. ef Q<e Pmamsa 6 m c i 0 Iq P9IGTECTIDN OF PEt6S9Mi SsBlFLT TO SY6P0Fk&5. tla.prnm.,s,a~o.~e.w.lwv+.t..rnoe.~a a.ma .t .®oran4 tlHa w. ni.aAaP riy'M V.voe Ynwwa efl0+e 9sCM or yyWke an a pA741 iKd.4 W tMt wIFWw 'Rs ®rt5 .n OKW el MWe 9r ,opwra !Ri iouw >n.G arrtatm IIY. ai7 Yq piVoM %Pen Wo paRti R 6m4MY in p7,Q1 af Wo aMh i11 .pprvpnRS ..uswn W,qs m4 a1dW.. As Y1 wS ls.kpii miB arnnQa aa a Ma»w o®ei~V's 1... salw A p.mR ®am .+1 11 " Proa" .M p.nqs YUp.a W e.rC capyseQ si arWptiya IwWb RaFw+ aoomrp ot i+nPL1. v,rq.I o.wWas v9 pnmNu nsd roc aPpw bn puaa+ ®e me ~ ~~p W ~ smn wM.me wcam,no.6 ®,pp.v tt IAfn Lil.CS 1a pwroSrYN 1®K7 aP It" Mq o puom wwm.p.G w s~ sa Fwra YaP•oun arid ®Plm® ni7, w4m 71 qc'e .flU .w.w .B v® "pwer v a.9vs Wo wns aPqlb6 19f ®aMpiWw n W ORM N 6iMd YW{! It 9J}a !4b- . i1RWr. NY! ypM YM MPN WMUMM! qlOW1RM r91dIB NWPwM s.Rire olt.arm m 6rp+mon W wFmQ N bp W W a9 m® plypy{s0 nNiMli9 V®4 WB /RaIMfm if ot{iWl>fl 6 IIfaO.. CIO p.RT rrvin ps wopowr nW oia f+s r®Cwi ID p.P,a id snP@ 9M R+iPiM4 P hpe6 Wo par4ala owp6 ps,eWt tia m aMal oI Wo wr1 y,am or woP..r a.. A..a. e/ kSaporc n+s bwa M.qe ar Pvry wArp vs rWarr Aa7. upaP eeda ID SA. Pawaa RKnnn,Rd.a B0 pwwAm woos a6.n/ OK 7W Mt wOn c;rn/M C~e F°°malm- 3uR9 " Yfw m®fad PS" - iqi pYPla N/ PfFll y/{q ttl q1E a yaiS( W MI Mtli d a pm }IOB Ay1o0t'C fspsre nMa" 4tMM iIS MPoamn MOi ciqMSq cnweMW4 QI{y OM Pl1ry 91p4/14 SR m104 D'. P1NiT i®ublimm01D nw 1.Mq /i1a FrYI W enirr FIP sHpPePi 0 19 01 r.9tw.1o.l.esrwNSfn++1PLo~Cnw: a7 n Wne a N~ edp r r~at, p~IS9 W ip aipav.9 a PaV W vwd m a ptaPO wf.>aqn tOtl e*i irae Yw M" a.pw. 9W PwoT nwir. tS rnqm.t W wNlsb e#aqo oMyra a, ps.m. .rwPe aw. nq®a w o. f,wstwr A uw Sp17119lpq of Wo nb$ w+ s y.nae me In .nr w acsrn Nr M amoaawC ti Vivd 1em aM 1aO 64m ywin msa+whmWt CqiMIMP.10.pe 0 uts.. a1Mni.m af MIA.pi W sort pm.a.d m,67N Fp 110 YaP1/fO W wM.N aR-*Y. W Rel wy.cza a 1M,4'1 Sa or,ls D+lGn. AS®t tt a.cpo.!es fD tio+Vas arqpwen ot amae t,aa W aq+ue mrikeNaw rowarv. aNwwnwc c/ mnflrusl Yplwmmon W 04 Lqaflo 9MiPNh sR M a13niNflaR NfpKff® omYn p 61tsTlda10 Ai{ qMpfAYy aP.OU .~r1{B W ®connw.e b&P+aa vm nb" Pm qr aqK6® ..av mAe 1e6 ib9to zqwsf A se/ p". ®e pp n~Maa {14swm ifs tf PR e pMf7 W!B e~tt ®f a BlB, W!rv RA"op® 1iqw+.e io ve.q 4mIf Ywt 700 mMS W attep trllO& 9w whi{ Oay w irueMC s Ms.aee 04061 a m aRUa.® mr ar sf+PwW r" srmitA W .r6pit./1+ .c r pw N.~p LR.4.. ora~N x..ap.al. te iaN.d eom+. ® woMra+E aws /r Vs 1.WnR W.r.tir ws.sms PO. WWWaMS M eMiWA WM PpMdep aIR ..am® 7W LW p..m M wtae af ripwosll. .IY.w.a M o. Meanah a"paA.aa. 17m cwFt 1YS taiF spwMaM oe P'~ •e+r +wm 4+qb.e 64 favfaa [a Iaaaaspna'fo fieRaomA d9f A praas nqM." g++atf~Porr w Fnolk" qw,.a+l`W aSW ami,am 9sP N PIry an WRY Ye Ne pawi csmS f6 YtW..c W otw wlmiie .ne mm prn so son.POnd saqo Te i.nocw in ti+ {lWilf. Il9 {7) MA.n nhrmrtwoe *AJOIS n I wPVPwn 7..AetWN.n s iiih qlac It 7c imwVw ®P1aq.q< W paeafdan W Ni /mw,f1# sesWMd Wi C+pe aYl 4v a•I4i i1WUMh' are iltl M"i/WliM fai •iwtW,o rY9r nW! W[YS Wo/eM4 Ga1w%+iuHaw.vf 471YW 114i ploHWd W tN 1tlSItti.11<Sa 91400 ®R WRfrIGM PaW W Gomm 7ob f{apn• C1o CYN uv ~ c GEN 182064 CD
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Sti:bsecticrs 16.1.3 and 16.1.4 he:ec€, ar.d detezsl.^,ed on a stacc- byatae® baais. 16.1.]. In the case of a G_oup Ot:et Sattlement which ir.c!udes at '-r,!tia: payment such as that prtvided ;or in Sect!ct•. 6.3.1 herecP, tho eenchmatk Figure shall be that figure wh!ch representa t`-zee times the Present Value of the initial payment made hezeunde=, adjusted Soz Metket Share at the time o: sush payment. Thus, i: at the time of the initia] payment heSlt•nder, the Settling De`endar.t had a market share of 2 perceat, a^d mede a payment tha Frese.^.t Value of whic`+ is S15 m'_!1icr., a:d the Sectl'_ng S.a:rs.snbae;uest_y e.^.te: into a GrocF Gther Sett'_eaent wlth a Ncr.-Se:clEag Tcbacc0 Company which has a matket share of 30 percent, the 3e:cMna:k F!gure for the initial~ paymer.t shall be $225 mill:on. To the extent that the initial pa•~nen: ac:ually p°ov!ded for i.^. auch Crcu;. Ocaer 5ettleoent is less thaRthe Benchmark F.gure, the See:lbag Defendant syall rece!ve a cred!t ia like amount, up to the amount of the present value o: the initial pa/meent made hereunde:, against all future iarae:t otl!gac.ior.s hezeunder. 16.1.a. 'in the caae of a(ilO:roup Ochet Settlement which included only a lamp sum or perlodie payments, and lii) with respect to the periodic payments included in a Group OtherSettlement wh!ch also includes a.n i.^.Stial payment, the 8er.c~maek Figure shall be that axwur.t which so0stitutea three tines the Present Value of all amcunts pa!d or payable by the II7.9 (.6~298 ., i
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Y+1E IGRSH?H6iun 4-uv" , 36.32, Kase--easc7 :o or use ot o e::guSa-- aa= or prane~c s~ x.%:s dug:i.e®ee: aiel: -lu0e `e pltstd. a3.ee s:e ceawa Savsee ar.SaMee. ® h, Z•Y e1:VEE6 W8^'CP,~.^'C P, CP, ts @«.Ses ~"e eRar.:ad ss. i.ta:e~ec: au e: s'.e dey WA ls;e .Srec vax:aa uj-ave, _ AKOCKa W.CL'P LW. w aa:e~ A73ASf7TE. 8L`+SON, :Oki3i 4 iK:LL'%l31 ys s . avixz A°'oi'LMyS !Er saa:xYcuw „ . ..a 3.:.N..- aa.b,,^vC. ex :rnn aceei ae:ereY Oaaee.+: Gars f:A.i OP C.=:-°Cj: .~Y A:CS~,fY Cer.err: DPei r 9l1vbt1M
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-Oct-26-99 18:54 Frcm-JONES DAY N Y~ . ~1 212-755-7308 '10 T-044 P.99/99 F-044 WOR &BACON LLP C March 21, 1996 Page 3 ror youz conveaieace, z have provided an extra cogy of this :etter aad, if you agree with the terms, pl®as® aiga as zhe b®ctosa aad rasuz=s the sigaes copy to tee. Rxt/ij Ezziosure Vesy truly yours, &Lzikirl ~or- ~'chi~p i 1Ea0oa6T GEN 182150
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Oct-26-88 1A:33 From-JONES DAY N~, ti2-T55-TdQ6 ` i-P44 P.r6/B8 f-Q44 PROOF OF SERViCE A C E ~= R ACE a-T16r.J t '~g Pt sERVEi2 s€RV ON iPReNT N ! v IewQ.rt A-~ r SERVICE Sr RVEt~ BY I~PR.(NT NAME~ '~M~Y TfTCE ~ry ~ S ~ . 'dftl n ~i,..~9d i 4.grs +.nw p."ry of p+rprp Wex vp 4w. ®r To uNwa U?ka .o - 9reat et 6.nla it mie sri torteei• 6z.waa vn J i BiA'i'E <4 wIr - ~-fo.e-0 tU. ss. {4¢.r.r ii°aae of Cr® Proaa.ea Pw a E ta W iRGT€s970M OP PQiSGR$ iupdR7T0 sugPOF}IiS. 177 s i++m a.+.vetrNe (wWneDir fQrII+o Mswn®e m6 enwa ve ® copa.r+ eiw rau r.anv* Rop. w aam lmpodni wr,w e.rawe er spsna cn ! rr.a+ wW WS m iniC wtpory. Thr WsS en irwtl vf WeM Cr eaYPM®.ye i.w.4 .ni .d.r.. ais 9~ ra hrqw+ w'w vi. pmtr aa wmrirr h iniai .i ttu eaT st sPiropnx® usKmn wwa> mM t44` iq ic mt WdW st keS twetiABa !na e wwMOw .vaaf+R'f iw- - lal W. pr.on wme.W.a m poasa am p.irte arwop wn eia wPtrG+G of 4Canaw Aos4, prpqm la..mrY a S.elpOfs v.np. ar teep.Wws of pneiwe rMi ias .ppur m p.i+en ss me P4w sr qp94Wyn a irt>•..>a viwa ®an.w.0 ve i6P.e ia' ibYH 16RL4 W ps .iM+i 10ii1 Pt WrY Mk e paKn saeMpC.a w 8/.wao .n® i.rMR ftin90n WW mypkiq YMg. w/PlR 1f 4i7i rMr sn94 .i Vu Mipr+ir .r ..fae IIs q0 rF.ails he mmpMlop 11 erqt Ymo 4 WMS firn 10 Nio .fW .erw..r®. qsn e+e e.rry a aiCN..r..a'wa be wr .ppost. .aRiMt .tpRbO {c Uap.AY9 a+O"riy .B f9/ a f® ®t Cr qeeyn.c.e n.frwe .f N vu Pr..n.r& iP vip.own 8e W4s. Aie r.rr .ewr sw wxommi et.l na an rdei.@ ts fmv.se +r+® aapv 9ae WsrM1elW ar YwR,® mfs paoMl aae.pt AiWR W aA M'W ®f mw on p! wqlm a; acParr .e. U..a. M imajossiam nw !.n IIIK` pM }KSa !M~'N/ Y. sA/CiY AiT. KI(jj Ia9M tAr.o1 m.awwa ® Psmw maee s sy %ot ior.n vnrr w.anpe W pa.wow. F.m .. ss ia aW-Poi Mqk ~+ MW RuiW R6 er.Yn MID k vK i piM11 of iq ~ d.(/M5' iIPIR aiwi{W64 eey.rr. m+ate+6 fess ir 6.priRO aq W@/Iw wsseflpaq. ~'A Ms~ iAd 4+.Mi M R+uei ~ ~ ~A ® wiYO.rM 9 0 0 id. t+.ewv wewvya4 iun. ta ZMwNswr. 30 Rvww e p~sa+.ta M nR. Reiti w rI NMrs eP o essB f. Var wn rNr. tlaM timc 10D pAre Wra We 0" -MwR SNC PR.w MM.L M.Ryqpl}ii of rey/i/d/ O'eff6iKf erYrn in pWW6 +iotPe Prt 0400 w vr pw"if+ns W swe. WfiIiBiI@ of CUB Mr. W1 e p.fae FI/ N aYrt W .RaA 1y9t3 D1 tartYHRqIq SD Vetlr Role of /H41 *i>IATIII abei+i.r"go I+•9N1YheS4w ii n1" .IKl.qii .i N~ .r vqib FtWreW mea.r Ni[ rN aytawt ws.V.r.peanf ct pV) e4).R/ 0 aM0 TG MW}4 WKM Yufis4(r4yon9~ 02! IDPiiESS OF (9FIfilFR 011B) A 0 9ripOMi . iQ 1e9u6.a a31e1csre ®f 0 7lJs abK W omV m~lkandw n.nrcri u.ncpmvs of svrm.+u.i tetmmsmn or 4p rw.®w o{ba.qs of an mvfqmpi9 edy.R'. ®p*te !r ®Iffql.qDR 701 d"oCba .qeAAG wM0i! a ®Wil\rKM 11 rYa.e tlY TIFA'; IMF SiM fipM'r iWSi +nst9 roa w®e.+M.sc ci .ov po4t. of 6oD nqa.e m y..a..ao k ers. w~s ar.ee.eqer ~6 • psq i. 1111649 ollorg"" ewemle 4o Sn.vi w®w axls iib ont+i ca.ono viaa ar wes srwg m w.i.a e Wow.t.KB ta a NiFf W lr® ti6 .rL'yOMIL qAlti4 a R/ilfy irM l/OPoorlO M. S WI!'ISj R YI@10® 0M11W Ve etFWerli t. Mr" wiw s.rascmos iw b 9r pvnm9 cr ws.Mi nrc w.vc De eC.r.M® Mi Mifiaii V.it. iMwo .e1 seeus faf f8M ®.eirlls ww+ v. "Pw.n i. W..M¢ se M ir.wwiv mapYya.0. Cs 9otec m.® a3.P bpparxw f4 ®rOCYivosc m..e ww.oo".. awsmonw PVfit3 iM NtSrQrdCNid Ti1 Ft~'iiRK _ (4 .M1 tprov w9rmr s~a60liti8siw4a ~t+0*.e9ta fi11l.ryYlCA au0 Wad slowp 9c awrewaro wtAt fns nwpomwe bOll s.wana iit ISiWi~brMwaoenac(oam.i~Y.sbr+~®ni9.n. ssr® ft+.i ii a piMi.yn w eepip ia p/aroadYn a rtii pawa+oswiw4N. Cs Oin Mn! H mule esphWy an6 eB1i Oi.qpfH! W ®lwqqopnafSNewWO.iAK.tw.wwMP6 ComFU+.aWU.a "s iot pi."ae vss A o.7tkiNS w w.aw as a.mawa pmr ea OW4welr.d0~ co
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+I Sett:i;g Defendant he:et:.:der lexc?udi:.g, .:! the Group Ocher Becx_ement ccotai^,s an iaitial payment, the .nit±a? payment hereunde:I, aseuming, in the case of :uture payments, no increase or decrease 9a Plarket Share but aaumir.c Inflation ir. revenues, ®il adjusted for Market Share. 2,yus, if the Present Value of a Sett2in9 Defendant's payments made or to be made hereur,de: Sa gSo hullion and such Settling Defendant enjoys a Market 8ha:e of 3vi, the Senchmark Figure for a non-sett]ing defendant which at the time of a Group Other Sottlemer.t enjoys a Market Share of 25% wcu!d te $1,35D ma'.icn. SamSlaxly, tne 8ezchmash Figure for a Ncn-Settllny Ueier.danc which at the tiaie of a Group Othe: Set_Semert er.;"cys a Market Sttare c: 51 would be $450 m_1]ion. To the extent taat the Present Va?ue of.the.lump aum or pesiodic p9ymenta to be made under a Group othex Settlement is less than the 3eachmark FSgwoe, the.Settling De:endar.t shall receive a e!eca In like amount, up to the amour.c of any rema:ning payment cblira;Cens he:eunde:. 10.1.3. Sn the case o"_ a S'.ngle Statt' Other Set=ler..ent wY.ach includes an initial peyment such as that provided for In Section 6.3.2 hereof, the Benchmark Figure shall be that figure which represents three times the Present Value oi the initial payment made heteundor to such Settling State, adjusted for Mazket Share at the time of euch payment, computed In accordance with Section 16..1.1. To the extent that the initial payment actually provided for in such Single State Ocher- -So- S9 L0298
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i O
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Dct-26-98 18:55 Fram-JDNES DAY N~ ZIZ-755-7306 i-044 P.98/8S f-044 $'..3oW8?Z, $EIeBCN, To88ES & Wil1Lam T. Plqaee, E®q. January 15, 1®97 Page 2 FxzanM.< 66P _he Jailuary 9, °_997 letter froR youF #irm threatened latigation, tn '_ight of thia tr,reat, I a:n is.formin? you that Liggett will cake every actiota necessary to defena itself asain8t, and seek sanct;one for, any such frivoloue licigation. If you have any questions. pleaae 1et Te know. 9iaacerely, " 1 / \wmw s® /nr Marc E. icaaowzta cc: 8ennett S. LeEow..ESq. Marc N. Bell. Eaq. navid M. Bernic;c, E®q. aavsd K. :3ardy, Ecq. Peter C. Hein, Eeq. . 'David R. Kentoff, Essq. aordcn 0. Smith, Eeq. Robert C. Weber, Esq. GEN 182152 E'd dTf a$16>/ Wd3E:2® G6. SS NdI
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0 I e.12. Rs_sr=oau so a: yae q$ X s;S:~ler nvnr. rsq pso:~ssa SA s.hin Ageasmnnt 6SS:2 L.ia:ude aho y1 u.wi, unLeee yQ i i m M u N ~ wa:.a! 1zplier vth.awf,®s. . .-~ z w ER S7.CPN'..8t s~.9SCa, ths D.rttan heva axecatad thle 0 ~ ~ ~ $ agv.~t > of s4s day aad deta flasr vm4r.ten erove. ~ 0 ® LACC76 CA4C4 L79. sy 3s:~:..LL &. La sv 8?A:'P oF Ai6!a®bA 7y Sran: WOC e At :o:-ey Oettera? Dete: L_CCL:T CHCC7, ZNc. ay, AcTaaC:-c. 7..aew STATS QF CONPIG:iBR.'^. ®y :e~ard glw^an: . AttoZay centraS Jataa KlSOw;?2. DCNSas, 7r,A8&S i Fa:~~Y µr Sy as e®a a A:ts::wyo foc DRGOIIY DRCCP Z?9. an3 LIGGSTT GpCC'P. INC. S, 1..0298 e` il L6.tL Jrq S'A:.S Qi i1Ai4:SY: Yy lurga,ry :ene:®r AtteSSey Gl.1lril Date : S:A:9 CT fLLINOTS 9y dn A~ Attcrlley Cane:al -69- Dat.: r'/35 Y < Z v m h 0 A
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'M ® the 3rooke Group as ta the due executlon of the Settlemer.t Agraement by the Hrocka G:oup and Lt.gget: and its enlosceabi!i;y againKt the axooke Group and L!cgett and such otheS matters contemnlated by Seet'_or. 14.1 (othes than the •agreemer.ta'- - ze!erer,ced an clacse (iv)). 10.3. Yn the event thst a te:-a:nation eccurs pursuant to ar.y ®ections cf chis Ag:eement, no Settling State shall be rena;ed to xetuxn any paymer:c. _ 18.4. Subject to the provis?or,s of Section 18 herain, this Acr®eme.^.t, i^G_udi:ig all AYper.d:ces at.ached hemeto, i, any, sh.all cor.sti:ute tse ent:re Agreerne^.: amcr.g the pax:ies with regard to the s~b7ecc of thia Agreement acd shall supe:eede any previous agreemer.ta and ur.de:aca.^.2ings between the Pa:tiea wah' Yespect to the sub7ec: matter ofthSs Agreement. This Agreement may not be chanced, moc'ioied, or amended except in writir.a s:c_r.ed by all Pasties. - 18.5. With respect to each 8ettling State, this Agreeme^t shall be cer.st:ued under and otve:ned by the laws ci sucS State applied witSout regard to ite laws applicable to choice of law. ]®.6. This Agreement may be executed by the Parties in one or more counteapasts, each ot which shell be deemed an original but all of whieh to5ether shall constitute one and the same instrument. . GG !,0L08
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I KBTiP LLP. '- rM nw ou:o:naai. r.ut Hat 70'97 f6:06 Vn.OV P,07 . .ya.a1. 7tk::ar.W'-e s CY W' t{as nr a aln6SLL°.^Jpag ar prcppua Zp t9:. Ju)r®aa.at a3u`r A:C:•x.°e tsa P:ural. =Lan Cha coc.ext ;.=,11®a E:7 N::IM69 1raRCCP. s".,® iarede. "ava encaM:.d k::. etixa®mm: u a_ ahe day - .E.det. StasG w1::.e abcva. a fR00Rt 01WOP L'f'9. LSOGE^: GRCIIP. ::IC. 1 IUiASI.^.`Z. DEYS037, :OKPSf a fd'.T]a.'l..'7 . ay -c 5. awovsst a•:osAys av i7lCp1{3 GIEOCe r:D. a.^.i L:Cf7I:: C{ROL7. 3NC.' lTa7z or Aa:;offiA ' sY maaa nues Ac:o_^..ey O.rA.°a.' DeseI Hy N::o:...y Oeu1:a: Dc9.i C_A:E OP mWiv,i ay 'Try aroasa.r . A:Ca..sy Oe.u:a1 Dase; S°A^.E or L'.LSNC:7 DY'T_R.Yoz At,e rz.y DeqeYr. Das.~ ,,,. T J>
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Oct-26-96 16:5T From-JONES DAY N0 212-755-7306 10 T-044 P.99/99 F-044 exchanging materials prepared in anticipation of litigation; and iden[ifying and preparing potential expert wirnesses. 16. B&W, the other major American cigarette manufacturers, 'iT, and CTR share and have long shared common legal inreres[s. For example, B&W, the other m~jor American cigaretre manufacrurers,l7, and CTR share a eommon legal interest in defending against pending and anticipated smoking and health product liability actions. In addition, B&W, the other major American cigarette maa,ufacmrers, and Ti share and have long shared common legal interests relating to legislative and regulatory matters that affect them as manufacturers, as members of dae robacco industry, and/or as cigarette manufactures. FURTHER, THE A.FFlANT SAYM NAUGIiT, Dated: June 19, 1996 Sworn and l}scribed to in my presence on thic < day of June, 1996. hfiy Couunission Expires: rary Pu6dic .~, Susan B. Saunders Na18rYPublic.Sbsai4~, ~ Myt3omaakslantsspcsNaw 2,1997 5 GEN 182162
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P
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Oct-Z6-98 18:54 Fram-JONES DAY N Y 1 ® ZIZ-755-7306 ~ T-044 P.88/88 F-d44 1 SHOf?KHAFtDY&$AcOh' LL.P March 21, 1996 Page 2 par many year3, Philip Morris; RJR, The P,Snericaa 2obacco Company, B6eF7, Lorillaxd, and others and cheir counsel have been involved in ajoint detenss oE tobacco-related litlgation with I,iggect/Broake and its counsel, and have ellared inforsatioa, doeua(ents, arid sstrategics with counsel for Liggett/9rooke. Tltese meetings and iacoractiens resulted in the creatioa of joint saor[c produet related eo the detense of smoki-g and health litigatton. Philip Morris, R.7R. 6i:id (on its own behalf and as successor to The American Tobacco Coalpany), aad Lorillard and others (a.nd their counsel) have a protected and priviieged interest iu maintainiz7J; all applicabie legal privileges chat apply to all such informatioa, doou:nents, and strategies t-az have been a.hared as part o£' thss joint derense effcrt (Snclcc:as, w=thouc Simitatimn the atLOrzsy- client Friviiese aa:3 the, a.:oxaaey work product dectrine; . F7e continue to assert these g::v.ltces irn a13 resaects. A,ccardiaSly, Ch15 _5 tc advise yoa that ycu are aot to dissemiIIBte or discuss irn ar-y respect any izfor:nat:.on or =ccuxents subject to any of the a£ore-r.eaiono$ privileges. Ftarth®-_More, we request that you: 1. Con:i_ra in srriting that no ssc:: disse-nzaat:on ar dir6c3os•.i e has been made; 2. Coc.firn in w-_iting thac, pr8er to any dissesinat.on or disclosure, Philip :Sozris, RJR, 5cW. a:.c Lori7.?ard w:'_1 be provided wi=h not_ce a» su€ficient tsae Por cheR to seek ~hazever =elieP they deam aprranriate; ' S. Allow s;s to review at ch-es sis.e a_1 dxutner.ts sub3ect to the a`•aremeattcnea privileges in the possession ot L3ggetc/arooke or its counsel (or, in che alternative, provide us with an index of all sscb ir.tortsation) ; and 4. Advise any =ther law firms that reprQsenv or have repsesented Brcoka Group Ltd. 3.:d/cr Liggett Group, inc. and who snay have access to some of the descrihed izfozmaticn that they are to comply with .. the t8=R99 of thls letter. i-11cnaV GEN 182149
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Oct-26-99 19:54 From-JONES DAY N sIm"m°° wnsww PaUXM asq.o...ms0s.lo. 212-T55-73U6 I* T-044 A.99/99 F-044 LAW oFiIC66 SHOOK. &R-AiC%Olei LLP GNSKIPM e:NPLXZ ial wW etFlW R.vAW osv, aaafauR 50106,4118 TWr1L14 ®1QiJ4-0ESC a FKS.bLLEISy1).299is9 ~.g.. r+am March 21. 2996 YM -,~PEnE81Y, ffiI+105S Mr. Hezta2etL S. LtboW (As An Iadividua1 And Ia Sosiah S. Murray III, ?sq. LLgcJett Grotdp, Inc. Ais Capacicy As An Cgt:.cer a3nd/or nireczor of 300 Hdorth Buke Street nushin. North Ca_olir.a 27702 d A d/O . : r 8rooke C=oup Lt LiSgett Grcep, Inc.) c/o Marc S. Itasawitz. Esq. Marc E. Itasowitz, Csq. Micaael L. E£irschselz, `a(;. Milhan3c, '_taeed, hadley & McCloy 1 C33ase ManiSatta.'i P1aza Haniel R. Bsnson, Esq. New York, New York 10005-1413 iCiSawitz, SenSor:, Torres ~ Fr1sdtnan 875 Tk>ird Avanue New Yor;c, Aisw York 10022 Re: ar~e!e GZi9 =lemen : Jarses V. Kea=^ey, Esq. l.atham & Wackin8 ®95 Third Avar.ue New York. New York 10022 d LiccPsr__arQUO,_Ir.c 1 am °a:°ltir_g cn behalf o! Ph1iip Mcrris 3ncorqoratea ("Ptulip Morris"!, R.J. Reynolds ?ob;ccc Company ("RJA^), 8rosan & 'illiamsen Tohaceo C=rporation ("B&it1•), and Lcri:lard Tobacco Ccmpany f•I;orillard"l. Eased upon our raview of =apiea ot wl:at are capt;onad 'set_lemer.- agreeRents^ involving Brooke Group Lcd. (r8rooka") and Liggect Group,.2nc_ (^Ligg®tt^), v$rious state actorneys general, and the CaRta=-o Flaintiffs, along with pu:p2ic sta_eeaencs asade by varicus represer-tatives oF tte plaintit`s in such litigation. i: appears that Brocke, Liggett or their eounsel incend to ^ccoperate•° with parties csrently ia licrgatio n agaiast the tobacco =ompans.es. In 1.ahe oF at.at, we raquest your sa_itten represesstatior_s and assuranees zhaC Z_g5ett/'nrocke and/cr its aziiaa;.ed entities and ceursel tave not an3 •rial not g_ve to cr Frevade to any other person a..Zy pr=v_lec,ed inPc=acicn in v3olat-a:. cf varicus joint dnfer.se and common interest privileges. 1/2Q®ab'r GEN 182148 ~
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Oct-26-99 18:56 From-JONES DAY N Yo . 212-755-7306 0 T-044 p.99/99 F-044 filed against B&W prior to January 1, 1995, including the date of fding and the date of futal disposirion, is attached hereto as Exhibit A. 9. Currently, approximately 175 smoking and health product liability actions are pending against B&W, including 10 actions that were filed as purported class actions and 11 actions filed by state attorneys general or other political subdivisions seeking to recover under a variety of legal theories. (On or about December 22, 1994, BAT Industries, P_L.C. acquired The American Tobacco Company, which was merged iata B&W on or about February 28, 1995. These numbers include lawsuits fried after the merger against American or against B&W as successor to American.) 10. In connection with its defense of pending and anticipated smoking and health product liability actions, B&W engages and has engaged outside counsel. Generally, B&W has engaged both national counsel and counsel in jurisdictions in which actions against it are pending. B&W's national counsel have included law firms now known as King & Spalding; Kirkland & Ellis; Shook, Hardy & Bacon; Chadbourne & Parke; Jacob, Medinger & Finnegan; Paul Weiss, Rifking Wharmn & Garrison; and Latham & Watkins. 11. B&W's in-house and outside counsel have sought and received assistance from B&W employees with specialized knowledge, typically relating to scientific issues, in order to assist them in providing legal advice to B&W, as well as to assist them in defending B&W in pending and anticipated smoking and health product liability actions. B&W employees who performed this function and who are authors or recipients of privileged and/or protected documents that have been submitted to the Special Master for j_n c review in This action to date include 7. G_ Fsterle, I. W. Hughes, M. L. Reynolds, R. A. Sanford, and G. E. Smngis. jpint Delaense Eftorts 12. Plaintiffs in smoking and health product liability actions generally name and, based upon a review of B&W's records, have long named as defendants all manufacturers of cigarettes -3- GEN 182160
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Oct-26-98 t8:56 From-JONES DAY N\( 212-755-73D5 v~_r 7-044 p.g8/99 F-044 V. LL .IV ,.w Va-,. ... ..... v.,..«.wm ..• ..... vv .. s. sherr be any svidcnse, that doeed= sver did ct8wwi6e ®r conc=glstd doiul cftcvrzse. tbe rs® W&s imu,rovidoAg,y sra=d u+a supuia bt vawed. i0. If ehe Coat does not va= the'dRQ, it shouid coaficai 4bae the'4'RO drxs aot purpoit. and could aot ptiupo+t, to LcsTSict of psevern jn CRMM docuroeut rcview by ucAa starc or Pedcral cotuts in ponding sccim in ttoso tosatas. L&M ffiz8:,Xaroh 20, 1997 Otder in Ma, aunexed beteto). C.0 ~ -q- rrv -~. ~ GEN 382156 r
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212-755-P396 It r-944 P.99/99 F-044 Dct-26-98 18:56 From-JONES DAY N Y0 business documents and informatioa, directing employees with access to such documents and iaformation to keep it confidential, requiring employees to sign confidentiality agreements, maintaining security at B&W's facilities through, among other things, rhe use of electronically coded identification badges, and limiting access to documents to those persons who need such access to perform their duties. hsr n7 Authora and Aterricas 5. d am familiar with the procedures used to identify the individuals who authored and/or received documents withheld from production in this lawsuit based upon claims of privilege andtor protection. 6. The List of Authors and Recipients ("List") provided m the Special Master in this lawsuit sets forth [he affiliations of persons who authored or received the privileged anddor protected documents submitted for in camera review. The List represents a reasonable, good faith effort to identify those individuals, and, subject to that qualifica,Fa -^;„ the affiliations of the persons listed therein are accurate to the best of my knowledge. . LdRpreun A@sin9t S8C{7V 7. The first action filed against B&W seeking to recover for personal injuries allegedly caused by smoking cigarettes ("smoking and healih product liability act°ions") was Lowe v. R_J. Reynolds Tobacso Co, et al., No. 9673 (B.D. Mo.). L&)n was filed on March 10, 1954, and the plaintiff named as defendants each manufacturer of cigarettes allegedly smoked by the decedent which included B&W,'1he American Tobacco Company, Lorillard Tobacco Company, and R.1. Reynolds Tobacco Company. 8. At all times since the jou case was f11ed in March 1954, B&W either has bad one or co G\ more smoking and health product liability actions pending against it, has anticipated that additional c>.. ~ such actions might be filed against it, or both_ A listing of smoking and healsh product liability actions ~ -Z- GEAS 182]59
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Oct-26=95 16:54 Fram-JONE6 DAY NY----, 212-755-7308 ~ 7-044 P.89J88 F-044 ~. MApG E KAB~M:T2 111-i0E.i7.0 Rasowzrz. BExsox. ToRags & FsIEDMAN 1301 AvgNU C OP TMCAM[RIOAS Nry YORK, uEw YORK =fe•8O'd2 a a.soanac FACi;roi LE: 2l2•sor~iaoo LLP 7eo 6awaw,a.RCCr nOYiT0~ ?r.LAB 72OC{ 7. s-aaae®oo Ganuary 15, 1997 BY rAC8JM3LP william T. Plesec, Esq. .;ones, Day, Reavis & Pogue 901 Lakeeide Averit2e Cleveland, Ohio 44114 Pear -Mr. 8lesec; I write on behalf of Liggett Group Inc., 8rooke c3roup Ltd. and the :ndividuals addressed in your firm's letters of Sannuary 9 and 13, 199? (collectively, °Liggett^). In responrte to those lat:ers, Liggett states once again that with respect to issues regardixag joint defe:a9e/cosamon :ntereet privileged materials in its possession. custcdy or control, Liggett is and intends to remai: in full compliance with its legal obligations and with the March 21, 1996 'etter to which ou refer. Liggect understands thaz, as a legal matter, joint ~efen6e/cofimon interfi9t privileged infarmatson car. inolude materials evidencing or relating to (a) the rendition of legal advice; and/or (b) attorney work product. That being said, your Sanuary 13 letter makes "demands" based on a definition of ~'privileged informmtion^ ttaat is vague and inco>t:plnte. Liggett -- without the aseiatanca of any joint defense (although such assistance was requestecl and refused) -- ha® recently engaged in the enormous task of producing bens of tr.ousands of documents in Minnesota. in so doing, Liggets engaged in a good faith effort to determine the privileged nature of each document. Whether Liggett, as to any cne document, varied from your vague and ambiguous definition of "privileg®d ir.format3or.^ is imposaible to tell. Indeed, the parsiep. on whose behalf you wrote your letter have previouely admitted that Lnanimity in the aa®ertion of privi.legee by the Minnesoca defendants was unlikely.a S in a necember 1996 Geleconference in the Minnesota Attorney General action, attoraaeys from your firm (along with at_ornays for other tobacco comp ar_ies) spscifically acknowled9ad that the varaous tobacco companies would, most likely, be takiAg different positions as to the privileged nature of at least some oemSnonly held documents. GEN 182151 Z'd . dl7 .iBJ.®I Lda5E:20 L6. SL Nbr
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Oct-26-98 18:55 Fram-JONES DAY N i :° -- - ' -~----•- 212-755 7306 ~ T-044 P.89/99 F-044 IeTOB.'CIi C/dROLII•TA ) IN T43& GENEtAL COiTBT OF 3USTlCE ) ' S[1P8&IOR COURT 2PIVIStON FOImYrK COUN'FY ) 97 CVS 2173 R.3.1tEYNOLDS TOBACCO COMPANY, ) HROWN & WILI3AM5ON TOBACCO } CORYORATIflN, LORILLARD . ) TOaACCO COMPANY, and ) F'HIi.IP MORRIS iNCORPOItATED, ) AFFIDAVIT OF ) MARC F- KASQ®vYI'Z PiaiAtiffs. ) ) y. ) } uCa4F.TT GROUP. INC., etDd ) BRflOKE GitOi)P, LTD., INC., ) ) I]efendaffis. ) S'lATE OF Nb'w YORiC } ) ss.• COUNTY OF NEW YORK ) MARC E. ICA8owM, being daly swom, aeposes and says: 1. I am a membec of Kasawi¢, Besason, Tanes & ¢ricdmaa ItF, aoutascl ioz dafizdants Li.ggea Group, Inc= and Srooke Gcoap Y.rd. I am tamil9at wiqs 1ho fam of this case. I submit c3sis af)idaVaa in suppoat of defeadaacs' modon io eaC3te abe saffiporary acseraWmg oader CTRO') issued by this Court againss dm dafandanes oa 17mssday. Match 20, 1947. 2. The TRO, putgoning to enjoita defepdaars from "mia" oi diap3osLtg- aldegedIy psivilaged joint dr€ease irfiorrnaii®n, was impaovYdotuly grantW • It was basEd cxdusivdy on imaecuaau apd 'aaeoaapetone pearsay, iacAtdiag newspapet aC¢ieies dawd aa early as Janyacy 1997, wh}ah supposedly aho>Ft that deFendaffis, in oomteetfon 9+i$ setUemunt agceegncats of peodalg E4IIOCdty 0eneaYl dub oelecr auiflas entesed imo by defessdansa, bav,; GEN 182153
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Dct-28-99 18:57 From-JONES DAY N` 212-755-7308 ® T-044 P.99/98 F-044 IN THE CIRCUIT COURT FOR TAE SECOND JUDICIAL DISTRICT OF JONES COUNTY, MISSISSIPPI ESTATE OF BURL BUTLE& by and through AVA DEAN BU1T..BR, F.xecamix of the ESTATE OF BURL BUTLER and on behalYof all wrongful death beaeficiazies ofBurl Butler PLr9JidTIF& V. Civtl ActionNo.: 94-5-53 PBILIP MORRIS, INC., ET AL DEFENDANTS AFQAVIT OF JAIVPUW. DOBBINS COUNTY OF DURHAM § § STATE OF NORTH CAROLINA § JAMES W. DOBBINS, being duly sworn, deposes and states as follows: 1. Since 1991, I have been employed by Liggett Group, Inc. (refettvd to hereaftes, including its prederzssors and successors, as "Liggett") as corporate counsel, Assissant Geural Counsel, and most recently, as Vice President and General Counsel. 2. I make this affidavit based upon personal knowledge with respecx to the paiod of my eruployinent at Liggeat, and based upon infoaanat9on that has been provided to me during my ~ entployment with respect to all other time pes9ods. ~ -~ ~ v c) 0 zM' GEN 182163
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Oct-26-98 18:56 Fram-JCNES DAY N Y 212-755-7306 ~ T-044 P.99/99 F-044 5 IN TEiB CIRCUIT COURT FOR THE SECOND JUDICIAL DISTRICT OF JONES COUNTY, MISSISSIPPI ESTATE OF BURL BUTLER, by and through AVA DEAN BUTLER, Executrix of the Estate of BURL BUTLER, and on behalf of all wrongful death beneficiaries of BURL BUTLER, PLAINTTFF vs. CIVIL ACTION NO. 94-5-53 PHILIP MORRIS INCORPORATED, ET AL. DEFENDANTS COUNTY OF JEFFERSON STATE OF KENTUCKY ) ss: Susan B. Saunders, being duly sworn, deposes and states as follows: 1. My name is Susan B. Saunders. Since July 1988, I have been employed by the B&W Tobacco Corporation ("B&W') as Legal Assistant in B&W's Law Deparsment and subsequently as Assistant Corporate Secretary. 2. I make this affidavit based upon personal knowledge with respect to the period of my employment at B&W, and based upon information made available t® me as Legal Assistant and Assistant Corporate Secretary for B&W with respect to earlier periods of time. S®eurftg Mea.sure.s i2prding Nvj]end and Confidenliai Docvmen_gr, 3. During the course of my employment with BdtW, I have become familiar with B&W's past and present internal practices and policies with respect to the gen°.ration, maintenance, storage, disposition, and outside disclosure of privileged and confidential documents generated or received by B&W. 4. As a matter of genera! policy, B&W has taken many precautions to protect ai[ of its privileged, proprietary and confidential documents and informazion against public disclosure. These precautions include without limitation informing employees about the confidential nature of B&W's GEN 182158
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Oct-26-98 18:57 From-JONES DAY * 212-755-7306 10 T-044 P.99/99 F-044 allegedly smoked by the person claiming to have been injured. Apart from 8&W, the major American cigarette manufacmrers have included The American Tobacco Company, R. J. Reynolds Tobacco Company, Liggeu & Myers, Ir.e. (and its predecessors and successors), Lorillard Tobacco Company, and Philip Morris Incorporated. In addition, plaintiffs in such actions often have named as defendants The Tobacco Institute, Inc. ("TI") and/or The Council for Tobacco Research - USA, Inc. ("CTR"). Accordingly, smoking and health product liability actions often have involved several cigarette mattufactnring defendants, TI and/or CTR. As discovery proceeds, cigarette manufacturers, TI, and CTR often are added or dropped as defendants. 13. TI and CIR first were named as defendants in a smoking and health product liability action in gjne v_ Philip Morris Inc.. er al., No. 8740-64 (N.Y. Sup. Ct.), which was filed on May 15, 1964. The cigarette manufactnrers that also were named as defendants in EMe_ were The American Tobacco Company, l.iggetr & Myers, Inc., Lorillard Tobacco Company, Philip Morris Incorporated, and R_ J. Reynolds Tobacco Company. Since 1964, TI and CTR have been named as defendants in other smoking and health product liability actions in which !3&W and/ot the other ntqjor American cigarette manufacturers also were defendants. 14. Even though B&W was not named as a defendant in every smoking and health product liability action, $&W has anticipated that it would be named as a co-defendant with other cigarette manufacturers, TI, andlor CTR in pending or anticipated litigation. In addition, 8&W perceived tlrat even where it was not a defendant in a particular smoking and health lawsuit, a plaintifPs verdict in such a case likely would result in the filing of additional lawsuits against B&W. 15. In general, B&W and other cigarette manufacturers, TI and CTR have participated in a joint defense effort to defend pending and anticipated smoking and health product liability actions. This joint defense effort has included, among other things, meetings among in-house and outside counsel representing B&W and the other major American cigarette manttfacturers, TI, and CTR; GEN 182161
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a.Te a22r'-sp.4- SERVEp 5anp jG on IPR'hT lu.E• J-Si lMaRSEA.ED D, IPAhT h.r6t _, h,2,i ., PROqP OF SERvICE r..ct 3100 71p..rfR ,3n„eC- Sre e.aao Pw•~IBS.ry. ~*°Ie ~.+2NArnrwG 0I ..enEX qr SEsncf P ~ TITa{ PEPWRA79Pk Af SERHER t pDetare frnaa[ pcnalry of pcq..ro .,na6r ine laws oi tna uniteq $t4teID ei Americs t61oc {qe 6DrsQoln® ntormapon canta,nefl In ino Qroof of SorYics: Is Cra6 ana correct. ~seeateP Gn 9/~4,7~ o.~E Alda o6 teoaai Aw., af [..;r PrDaea.ri. Prrp c& 0 --- Ica pflPTC~TInrq ®F P'6ASpnS Sv4~FCT TC SvqPOENqS, tl l A panf ai aa ananCy rqspotslate tar flq ~nn.encc arta acr.d• of a 9.apcana aNn faia +aaaPPapa 411" 5q aaa.a .mpw.np vna.a a.raan of •.pama an. per6on 6.P16cf te fnat a.ipoem- TM eu.n m, p.nae or encP ine a.IIpoaM ..ic Sasq anm anfarca flMa Ptol. ena -mpaSa +Pqn tna partf Pr •noma, ai piaarn or rfM a.r! An ipPIOPSifa iiPPtpn...PoCn nlar,rlC4>4o. P.f .6 ilot 01114.4 lq, 10111160006 a110 1 rai{qniPa 41Sornaf'® laa ' 121 IN a ppri0n cOmmwwF IP pvPa+Fa •n0 )wm•f 'n/picf•an ana capf.np af aaa.pnal•a Oqol•i. PDpiri. qOMNnIC a IaneA10 1IDhnpa., of HKpRfn ae asatr.faa n.M not appear rit (Nraan af rna p1a00 ai Praq.C{qn a 'Mp.LSAn.rMCaQ Eqmmanaaa 1q appear n1r qaPoafuan, nvirrtrq or thal fS1 StGr•CI fa p.ripripin 1010 of IAE rrli, f p/fipn Pemmanqia lp Paama arm Parppe dwpaat.fln in0 caprma+n.t.•dflM H 0ars erfa i.r.+ca of ina s17pW na a POlara Ina kne apFMa Iq KnpYanci r1 1v4n pma .a 101 Ipfn H W/a apw aqrr4l. aw sa p4n mR part7 a 4110110, JnbQPalaJ +, Rri - ..ppaane nultin Ra,acl,nr ta ,nap•Cfian a cqpr'ny of .nv a•p 01 rnc Dai,pMtip mata~aR a at mi pr•Ihfai. It WtlsyWf rs maqp. lnp pint foron>3 Ini a.OpOini cnan not RO pahne0 to napttl an0 cOPr 1na Tilfna,f of .na0aa6 IM pwn,eai asnpt pwarini ro an qlaaF al ina cO.A p} wlFan rM a.epoine " e.ai ria.eq If oplieLOn n.s DMn m.qa. GM partT iN.mp ena a.apaaM mpb. .0an nafs. f. tna piraan aanrwinaaC Tq pfqsa. 1na.f af .ns a/na ra !n fMOw 14 Pampal 7na pfaa.tC9011. 5.Cn an a0r fa Colnpcl pracuCf,pn MI.M jaRlKt ana paraan wllo tp rlDf i Paqif Cn in q11df9 or a part. lrom st®r8f,rqni a+pcr6e fnrlfAQ kom tna ,rqpicFOn arla copi,n0 pqmmanqoq. 13, IA} Qn pIR111 rrlpti0n, fPp 6aW1 pr wn'an a a.apoina a7 •ai.oa lflaa q'ABnar mt/0rlT ina s.oppano d+t , 1,) .wla {p aMOw ra6iqaiPla frme far cornpbinCq. 1..1 rpq.sia a P.roOn r.np O npl i parvt of an 0ff,ter of a panv fa tre..l lq a pliC• ma• enwt IOG milai fraln ina p,ee. wna*• met pe/ion fa6Hp=s. 13 oRQljOfpa of IeQWeqf 83nactq OWmp.a In pnr4a6 ®.capl ~,~¢ g~ ~4 !5- ---, l~.1a cE~ ap0AE66 OFSrA.ER . ' tnaf, avptaq Iq.fn. Pro.6"na af cl.a. Icn311ai1'wt of q,N.vi. SdnpOnGn maD aroa tD ana/lq mW 0i cPmmanqpa fa traYw Iram anY e.c11 PnOa wrin.b iM atata.n 1.Itian tns Trsi a ne,q aN p./ raqurrai aSClas.re qf pr,.,f.gaa or afnm Prmaefae marfat an0 nPlaCpPADn ar wf.aat ipphoe. af 1..1 a-OfaCIF a pa'aan ta.na.c n.roan f®1 1I a afaPeena- . bf riq.qW a.aeme.fa if qVaai 1aGaf a vq,ot aon6qanPan tsaawcn. ao.Ctapmanc. a sammzrerot,niarmafAnt ar 114 fiqr,fia a,aClaa.ra ql an .nlafar/laa fapa15-a Pp-mPn qr infRlaHfiqn nPt o[iR.amB SpaPld a.ania P• aciatrarlCaa In BOprla !na ' 16acmng lram IriO a.pa0 f 1Faqf m.Of Pq1 cl q,a raqwic{ af ana paflf. ar Ini1 fiqr,ry a p.raan ..na ra nat a par{. ar an amt:M ql a iaRf .G.na.f b.iar.rtt,a, aapanag to ffa.af maro fn.n 100 m+ci to aitqna wa1. mo ca'.n rn.i. ta prmasa i pclaon..Jr,sai fo om aiicctw7 or Ina iwpacrwn q.@sn of mW.lr iha a•.Lpacn. dr I IIw 04,11 nf aPpsP p•nad lnv a.ppq.na.a nf•aa itn..a a a.aoalnNa, n•aq rat fna fawaman, of ma{at,al lnaf eifYlot 1/P afn4rt46 mat wRna.rf J1a•a nalailMP anB.NeF16 rnet !nc pe/ion 10 sllaln Inq a.ppaanf .9 aq9fWaa0 sill Oa raaSqna0lr sqmp.nairai. rlw Co.a( cnay araar cppowsnCa Pf araq.Ft•qn qfay ..Pon 9paid•aa carLonPnS- ta, owTiFS Iri RESpplsoRvG TG S'+SP46hw- fH A paf4an nsponan9 fs a a.owwa to proa.cp ®ee..manp anaa ifna {eoaEPfMm Ca COrfrailfa 0 w,fn inp aete.~jta~a a1 tn0 aemia a n9n irQanria 121 wnan rnr¢rmat.an a.Dlsef is . 3.opoana 4 ~drlnfiR an a nirlP tti)s n ri pn.dc6Ka q1 f..Pl•Cf rq pratoct-an oe a.al pnlparaFqn ,natanali, Ina C,a,m iMll 0i 01444 a.plaa8ly /nq i11.n aa a.ppanaq aY a qaaHlPLlan a lf,• nafv.a af fM aoc.dn•Mi. CqmmMFCiIAIi or mur9a a01 pfDOrCati trlir ri irll'4ren6 la anOP.01nq qanlnrlRln(I pant ta svnHa frw el<.m 3sas5s 1 - GEN 182068
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Oct-26-98 18:57 From-JONES DAY N® 212-755-7306 W T-044 P.99/99 F-044 Sectuity Measures Regarding ilegced and Confidential AoeumenU 3. During the course of my employment with Liggett, I have become farni6ar with Liggeti's internal practices and policies with respect to the genen;tion, maintenance, stotage, disposition, and outside disclosure of privileged and confidential documents generated or received by Liggett. 4. As a matter of general poGcy, Liggett takes precautions to protect its privt7eged, propde[ary and confidential documents and information against public disclosure. Those precautions include but are not limiced to informing employees abouc the confidential nature of Liggett's business documents and information, maintaining security at Liggett's facilities through, among other things, the use of identificazion badges, and limiting access to documents to those persons who need access to perform their duties. Names Index 5. I am famil"aar with the procedures used to prepare the "names index," which identifies the individuals who authored and/or received the privileged aaadPor protected documents withheld from production. 6. Tbe "names index" provided to the Special 1l+Yaster (and to plaintiff) in Ihis case repres= an extensive, and good faith effort to idemify those individuals who authored or received the privileged and/or protected, documents withheld from production. Based on that effort, which at times required substantial research, the "names index" is accurate to the besi of my knowledge. Litigation Atain9t Liegett 7. The firat action filed against Liggett seeldstg to recover for personal injuries allegedly caused by sanoiang cigarettes ("smoking and health product liability aaions") was Deuurh v. RJ. 2 GEN 182164
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Oct-26-98 18:58 From-JONES DAY 0 212-755-7306 0 T-044 P.99/99 F-044 Rejnpolds Tobacco Ca, et aZ, No. 33779 (N.p. Cal.). Deuuch was filed on 7une 26, 1954. The plaintiff named as defendants each manufsr.turer of cigarettes alleged/y smoked by the deaedene which, in addition to Liggett, included The American Tobacco Company, LoriUard Tobacco Company, Philip Morris lncorporazetl, and RJ. Reynolds Tobacco Company. 8. At aA times since June 26, 1954, Liggetr has had one or more saawldag and health product 9iability actions pending against it. A Gsting of smoking and health product liability actions filed against Liggetr as of dune 19,1996, including the date of filing and the dare of final disposition, if any, is attached herem as Arwhmeu A. 9. Currently, more than one hundred smoldng and health product liability actions are pending agait>,,~t Liggett. 10. &t connecrion with its defense of pending and anticipated smoking and health produa liability acaons, Liggea engages and has engaged outside counsel. Generaily, Liggeu has engaged both national soordinaring counsel and counsel in the jurisdictions in which actions against it are Pending- 11. Ligge[fs in-house and outside counsel have sought and received assistance &om $.iggest employees with specialized knowledge, typically relating to scientific and technital issles, in order to assist than in providing legel adviae to Liggm as well as to assia them in defending Liggeti in per>d'ing and anticipated smoking and health product 1isbility actions. LiggeR employees performed this finacnon at various tirnes and authored or received copies of privileged and/or work product documents that have been avbmitted to the Special Master for in cmnem review. asas.~ 3 GEN 182165
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J Oct-26-98 16:36 . From-JONES DAY N" 2i2-75i-73Q6 7-d44P.25/88 f-044 ® sERYeo 690.90 On afqlht rn.a.E. a $91,913 at JPIn7 nnru a.T€ aayp~ 19lalf I? ra,•~t 3,Pa 7?r-dz r3rvd. sr~. i~oa u..w. ~af.6ae qMM6qOp6fqnCE Pgs .S0l6 Sh/ie e .ktaw - F"r+` t~ fseear.xll tpe J...e F:&, . - ials A4ean.~ TITFE S~°b e o d~ ~ F.Pa.saer~><tr ~~£SsS ~.F~€ rs~ PECLARATIDAI OF SEAVER I O¢qer0 uf14lr Perlbity ®1 pOfJJ(y rfiQOP Tn@ IiT9S AT i+ls N[Yteq SfCiea Ot ATOpee ipic EnP FD)pgPing inla(tqepon conTplnoa In Eff6 Pc00T Ot SCrYIG6 i51fK® bnq GOfJlCC. - . Ealcineq /vg-- P•1Y a.~t R[ 05 lNE I !'$fiCPyiP/Ye~- . .qGPiS aF SER.En~•+ . . g1lflC/NI lVe- ~' 8.1! 44. FNSraI fl.ea or CpN ProceO.re. Pini C 5 0 : tcl PROTECTI®R 4F PEqSOAS Srb4ECT TQ SuqpQEh~6. 111 A pMfT 01 cn 4naaner fcapona.p0 f01 me raa..nt! Op0 zpapC! 9f a a.PpOEnA int0 iU0 rtle0n.plO e1Gpa l0 e•aP Imp03rty .m0., p.raCn Of WAnee an 9 poaion a.oyln t0lnqi:aOPoln6 Tno pOwn On pealrP Ot w(hcn iM a~pifOPe .ss w+a anis lnnu0q tma !sf anp ampoao xpon tiis partlm o, litilllT w 4@CC{1 of TRi fi.6y ar)lpprppniE 11al.SrpL wn"C11 IIIiT nIpIAlr P.6 4 not 6fmrt7 Tp. IORliHellos 000 ! W ipnaWO lttOlnsV a ho. iZl W A p.aapn COrnnyipl0 t0 prGqrlCq Enq plrm,i InipOC7.pn in! ceprJia 01 qq.9na1e0 OOe.l. pepsti. OOC.+mm6 ot 1lnpaWq mAn*f, or .aopeqsln of Pa.mOa! nao0 PPT Wo00er 81 POrion !t Tng pn0! of pt00.eCL0af pr rryTplCt~pt.ljtl55 Comnlaalpro lo lppetr /a qlpW.ilOn. nCwrt10 C/ inpl . S61 6spllR 19 Pi(ipCqn IqR21 0{ NK ha0. o0 pcaEon PPmannOlo to P'oc+! 1M peamd napectaal anq cppnn8lWPa w71Rn Ia aaya oftpa SN.60 p13N ldOpOEna p qlIm61M tlm! apFlhN 14 cqnpnlqc! d!.cll Orm! fs Naa 111an If Cayi elna aen,ro EMr•q.yaq•.aN pi+1o M 311W.wy r111SIhWn/.r .I 11.1f syupOpqq r.A1101 OYae:40•1 t0 o1.Y6Y.V of Copqrrq pr enC OP a!I of IM cls.tanaceq mmcrlma ar ot Tne prbntepa. it oLIKrArt w maqc. ine penr avrwnB Tau ~qp0lni anexrot been4tiC0 to napsCl ar1G typr SJIO nNlCnan of Iniplpf IIM Prmili !•Oapi P•aa.Om to an ofOw of clm e0.rr, Py M4ep Inp s.opBRlO ..asbi.e4t b pPlwIan n0a bbin InlOe. 11M ppnv sY..nq tno lr4+ppwli may, .pan nar.ee fe tns peaaon ePanmpn0e4 eo pru0ee0, m0ee !{ !fN tRR! PGa Bn o[q4 To cOmppl NO proOwsl.on S.Cn PI ponr So Compw prap.prpw aMa peTKt eny, pwaon .ne x net 0 panr or !n mbwr of a pany Pam a.BnP.cant - OapWUflaWUnq{rOmTPe,rt.plci1Oplnocpp..p0sommeaqqq , 131 1F1 On I.mm moy¢fl me 60on Pf ..aaCn i l.Ppola9S wi6 pa.a0 RHn qwa0 Of mo0d.1M a.OpPlM d U 41 /a1a t0 lBOw Uaa0n00a! PIpa 90r COTPiaatOC: lu1 rW.LBp p po(/Gn w~p n cAI e P?fF1 w!n 01UCN pT E Piltv to [qr0110 e PaN ma 011ren 100 m/Ni hom (tM plic! narb InOt.Porisn ,p Wmpfoac0 of r.{jNinr IqnAna O,ra.nea; •n AMiOn. occep< Inei. l.OaM TO 1110 pr?wr,qna of c4.a® fi113ttor1lul of RFi fMC. Supn Fa.aGn mip OnalC ]o e/lan0 an01 pW cOn.mpn0eo to ia0>sY irpm afir S~n DaCa q•In,n uw !un ,n rocn m! Oa.u m Mrq w tW rlq.arll6 OaoloE.,re of prr•dl9eq or oln6r Pam.evu malear in0 n® Wacppt.on of M..w epplwa. pr . i•ea irpalcii ! Pcra0f:10 rR10..o WrOOn• tYl q a a.+0pP1®na: 1r1 alqran qrWlOi.r! ®7 I SROw lsc/el of Olalef COnt.4lnYel - n!larCn. W.lrOpmB118. of COmmOfFil .ni0fmat.Onm of ' idl rq.arei 4lanoa.fe 9f in .nrOpdifO ®apeft•C pPnAn of Nliotmillon fqt qlKnpele apec.hc ectnta of OaG.a>el.clg /n l.Cp.{e anq IoyTaq Trpm Onq W.pm a 6URr nPoe not aT 6P -bqwil of iM1r panC. « . 1+0 faq..ra5 d pmion wno,! no4 e pErlr pe En Ofncea oi b pans lol..`e aawamm pywnsa to na.qt raae:a.un 10o m;wa la auww v:a. S1N PP/S mlr. %a pfOrpn e ppfa6n t^cCl to a 6al.Claq Ps tnc CvOPOCna. 9.,ain ar ne0.41) n:c p.rPl+nar.. '.. d tur aroPf m M1n... lAldll U~ s.OpOqPO A rb3ulO 6119.6 4 s.ualanuq nec'o a0a Illc iwaWnanT M ma.wdf inlt olrmWi bq emorwt4 rf10( w" na, .ma.o fur0alep ®nB 08a.Ccs fflct Tno PWwvn To wnOm tn! 61pp0wN 6®q0/aaaOP waP bc IEe0pn6PU CempUVOtaQ. Vr COyn mat or0ef OppucrelK.o or proO.cT•on Omv .pGn aprcbeq seoolFons leF PuTtES qy FESPK1wPiIYG 40 SvSP4fne. f11 A psrlOq roapPnO.n® ro I a.ppo0n0 TO preq,.ea ape.eqlmw enao (6o0aC0111CIR aa ts1lr'1ro RCpt d: V1c.n.ql CQ6SP qr n.,5,na55 PI tnen Oreaniae Nq IaPn fPid110 OoarOaPOnO w.ip 1n0 c91ly0+wa .n [M 4rmano. M qMfi r10•meT.Oh prO10G6 to a i.OpoMO r6 -lnnol0 On e Cla•m [neE 4.6 pP+cdp9W® of a.plcCt Tp protlC4qq la 111b ptepVet.m mbiiqan. Ina cn0•rn Enaq P! If11q! qcPrF7it( 1n0 anlN Pp a.pPOfqO pT 0 90pC6pM1on or tne o0l.ns 0f tIM 00iLmOnq. COmm.n4cObOns of inmqa not p100.i00 tnaS .f 8.1Apent Io onlPlq In0 OCTpnGrt6 P®41 io CanrCal InW nl.m co 01\ 1679551 GEN 182072 W -P. ~ _...a ~ d PROOF OF SERVICE
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, Oct-26-99 19:55 From-JONES DAY N y4f 212-755-7306 ~' ~ 7-044 P 99/99 F-044 pubricly disclosed or mtend to disolose such aliegedly pcivtleged iafatmatiotl. 7'm is aoe troe. The facrs am as follows. 3. befeDdaats have mot "mimsW oa "d'ISClosed" any alleaQadly pririkged joiaa defcnse informadon, shey do isot intetid to do so bnd ths seartemene 3gree%;lcnis do nos roqqite or coneemplate that they do so. Radur, rbwse sets7emenz aPes=ats annrarrmplare oaly ehai doweneors sesbject to s]ahns of joint privilege be depasited in eourt, upAer seah for in ca review by [he tespeezlv® caurts in whlelt ihe suGed eccisaas acc pcadia5- Sttch se~ Samau eeview by sister swra or faderal cowns in per&ng zaions cannM possibiy eensemee Wsusa" oe °diselosoae".' 4. Aecord.iagly, oa Thuesday. Mateh 20, 1951, atecs zma sectlle7ueac agceeaneozs were executed. defeadatus, m rompUam wtdi sucA =lement agreaments, deposvsd documenss, uadet sea1, for 48n qMm s®view, widt nodee to tht otber sobacw sompani®s, in a Mississippi Citcuti Coutt in rhe puftg aaeion entatled Elistre of Surl Bueler v. Philin adonis. _, ec zl_ (°Bouer^). This deposit of docnmsots was psade pnrsllam to the specific order of the Mssissippi eouzt. 5. 17rae tiepasieiag stteh doCOAtenss with iAe 2«tississ3ppi coucs sxMld not possebly consciaiee ',nisvse° or 'disciosure- is conclasively confirmed by the fact that on !he vesy same day ahe 7T3O uras issued. - affi ladcc3 nf%E the TRO wss issued - oae of tbm pJaiutiffs in ebis action, R.I. Reynolds Tobaccn Co., ImG. ('Et.J. 8eyoo]ds"), also depositcd allegedly pnvileged joint def®nse docameats for jts ap~@ scvicw by tbc very same Mississippi conn ia ibe veay same $til$s<i ease. In faee, defesdam9 daposittd ttsoir docvaaeata with t$so Mississipp"a oowrt only aRer reecivins, by fax, a leaec fronti ceunsel to SU_ iteyneids -t- GEri 182154
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Dct-26-98 18:58 From-JONES DAY 0 -212-755-7306 0 T-044 P.99/99 F-044 Joint Defense EfPorrs 12. Flainizffs in smoking and health product liability actions have generally named as defendants all manufacturers of cigarettes allegedly smoked by the person claiming to have been injured. Apan: from Liggett, che major American cigarette manufacntrers are and/or were The Ametican Tobacco Company, Brown & Williamson Tobacco Cotporation, Lorillard Tobacco Company, Philip Morris Incorporated, and R7. Reynolds Tobacco Company. In addition, The Tobacco Instintte, Inc. ('Tl") and/or The Council for Tobacco Research - U.S.A, Inc- ("CTR") have been named as defendants in some of these cases. In addition, as cases proceeded, agarette tnanufacauers, TY, and/or CTR often were added or dropped as defendants. Accordingly, smoking and health product hiability actions often involve several tigarette manufetuting defendants, TI and/or CTlL 13. TI and C'dR first were named as defendants in a smoldng and health product liability action in Ftne v. Philip Morri.r Ina, er a1, No. 8740-64 (N.Y. Sups Ct.), which was filed on May 15, 1964. The clgarecte manufacnarets that also were named as defeadants in Fuae were The American Tobacco Company, Liggett, Lorillard Tobacco Company, Ph0p Morcis Incorporated, and RJ. Reynolds Tobacco Company. Since 1964, TI and CTR have been named as defendants in numerous other srtoldng and health product liability actions in wlvch Liggett andlor other cagarette manu&durets also were defendanu. 14. Even though Liggen was not named as a defendant in every smoking and health product liabslity acsion, Liggett has anticipated that it would be named as a ca-defendant with other co 0~ ®garette matatFacturers, TI, and/or CTYt in pending or anticipated litigation. 235Ci.6 4 GEN 182166
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Oet-26-96 t9:55 From-dONES DAY N Y ++~. 212-?55-7306 7-Q44 P.BB/gS F-P44 ~' . _. confirnung that R.3. RzyAolds deposired similat snch d4cnmants ^and, tndeod, some adewdcat dxuu:ent5 (accnYdipg to a reView of the privi;epe Iog.s) -- with the sama wutt on llx samo day. fa svpy of sLat leuer an4 ft Ftivilege logs atratbld to it ate annesed llet>rto, 6. Thus, it would be obsntd to inletpret the'I$O In Asis caso as basaiag the vetyY same condnct - submftriug puspostady joint defense priviiegs do:umen4 for jn c icvisw -- tlsat R.J. Reynolds ize1f eugaged in only houxs afte.r obtainiatg ttm T6®. . 7. Noi•vititspndistg this absusdity, dutiug a es]opbout cotsvctsacion on Friday, March 21, 1997, Ms. Danfei VU. Aonalms, DepUty Geoeral Caunsal of R.J. Reynolds, stau.i to II16 t113t 1718intlf`!'3 T8kC ft poalPdoII t]]2t tbe 7RO would plecEllde 41te 61CfCit14A15 from submitting docualetus undes seal foa in on~m review by oilret coutts in other jutisdictions. S. But Mr. Donalnu's poaition'was eatanEicted by other lawyets fot R-I. Rs:yaolds. In a confeteace call on Ptiday eveniag, Match 21, 1997, wilA Fedaai 5)lsu'ict Coult 7udge F"olsom, who prcsides ovor tbe Aagoaney Goneral tobacco acsaoat in the State of TeFas, R•3. Aeynolds' counsd, Mr. H1avmka, who ir.itiated the call in whicb I paxticapatai. acknowl8dged tbat du-, TRUU cooild aot prepetty prevent defcpdants dsaoa dcposittslg due:umcnas for jA camcgr acaiew in Iudge Folsom's aoust. 9. Aefendaats aaa ux obligatr,l uada the swfteut agtseunts to do stnrtbing , with aIIegadly prdvi;eged jolnc defcuse docuasetus at6er tM deposii thaw into eoeuts in tvhSch tobaceo actiolzs ase peading, uMer seal for In Slu8•~8, inspaxion by sueh coutts - as svqaued in orders zlseady issned by various of sueh cmm t'end as the piaintiff t®bacCo compaasies in this aetion are aab Lade becn doiag. 8eeause thete is ao evWnee, nor oaula -3- GEN 182155
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Oct-26-98 18:58 From-JONES DAY N ® 212-755-7306 ® T-044 P.99/99 F-044 15. In general, Liggett and other cagareae manufacturers, TI, and CTR have participated in a joira defense effort to defend pending and anticipated smoking and heatth product liability actions. M joint defense effort has included, among other thing; tneetings among in-house and outside counsel representing L'aggett, other cgarette tnanufacnuets, TI, and C.TIt. exchanging mat.rials prepared in antiapation of litigation; and identifying and preparing potential expert witmessea. 16. Liggect, other cigarette manufacuarers, 71, and O'PR share and have long ahar®d comnton legal inteaests. For example, Liggett, other cigareete manufacnuers, I7, and CTR share a conviwn legal inteiest in defending agaanst pending and an[icipated smoking and heahh product liabiGty aaaons. 7n addition, Liggett, other cigarette tnanufacturers, and TI share and have long shared cammon legei interests relating to legislative and regulatory matters that affect them as manufaauters, as manbess ofthe tobacco industry, and/or as cfgarette marutikcrurm. FB7RTFIfiR,1M AFFIANT SAYETHIdAUGHT. Y)ated: June 20, 1996 3aW-s W.1sOBa Vice Ptesident and General Counsel Liggett Group, Inc. SWORN Atr'D SUSSCI3ISED to in tny presence an this 20th day of June, 1996.. .LT/, k4a, - _i.c'~ Notary Public in and for the State of North Carolina Btg coamsisaion expires: Sepre*ber 11, 2000. 5 GE1v 182167
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12.I,6~z93 I . In accordance with a court-approved settlement, Liggett will aet up a 8und to compensate equitably those who claim to have been injured by our products. 2. Liggett will add a prominent warning to ®ach of our packages of cigarettes and all of our cigarette advertising stating that "Smoking is Addictive". 3. Liggett supporte and will not challenge pood and Drug Administration reguletione concerning the sale and distribution of aicotine-containing cigarettes and smokeless tobacco products to children and adolescenta. Accordingly, Liggett has hgteed to comply with many oC these regulations even before they apply to the tobacco industry generally. 4. Liggett hasinstructed ita advexti®ing and marketing people to scrupulously avoid any and all advertising or snarketing whicb would appeal to children or adoleaeents. Liggatt acknowledges that the-tobacco industry markets to "youth," which means those under 26 years of age, and not iust those 18-24 years ot age. Liggett condemne this practice and will not market to children. Liggett agrees that ii 3r seas industry advertisements which in its view are aimed at children, it will bring this to the attention of the Attorneys General. 5. 1n accordance with our settlement ageeementa, Liggett agrees to fully cooperate with the Attorneys 6enaral and Settlement Claes counsel in.their lawsuits against the N W A A
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Nov-10-9B 17:57 From-HUNTON * IAMS 8235 li.i ItEYlVO$.DS T®$ACCA CtmMBANY lto6en F. McAenaoi[, Js- JsiM, DAY.IBFAVlS & F4GPJE My~~~sc~pali~t Sq~u~ar J'K p~ ~~p~~ ~i~Q9~S~I,-..ygS~.s~l.sw~ ~~'~.By iR naV1/4/.) WM~iY i~/.C. f~ Tsl: (202) 879-3939 Fax; (202) 737-z$32 I* T-042 P.17/20 F-640 ltas6esc cmay IIpy4y'i;c~Tapp e! e! pp S. C~~}~a~isy~y~g~ p~pyq~ d WM1F~FPi AA S y d~~l~~~ry~iJ ~. POA.4LIG 549 Lea~pgwn A-..1Y..- Yd6W York,'NY iflR02 1'r7: (212) 32b-3934 F= (z12) 755-73Q6 TIiE AMF8ICA1V TOBACCO COMPANY BAAWN 41; WUZIAMSAPITOBAmC+Li C+m 1I®RI =d S1.?'CS BQLMM YN8:. PewBoumso &F.[ 1 9S 153 F. SB1i Saeee 1dewYodc, NY 1QM2 Tal: (212) 446•482Q B= (212) 44&4900 •AMEFtiCAAN'T4JBACCO (6t®LM~iS) LTD 11314 3.46T. MTJS'3RM PLC Ezia A. Thl4 Madc Cs, cmha Rm.RI'PTfI&LA &AUdtaw T F:aaicel 50 B)uisqueys.5taaec Kadacm T.1wIaad Fiato Rcy, PR 00917 SiMb'SON&$A1iT= Tela (783) 753-0438 425 Av®aao Fax: (7$7) 76"409 Neao Yodc, Nl' 10017-3M Td. (212) 455 2000 F= (212) 455-25@2 L$GGTT & mi=, &1GGm G1ttETSF, YNC. =d TAIC mo®P EdgaaCwjg=a SanpgSo A~'u:bE+a x Fr8 AIVI®I+1=&C=OVA V. SrxAa=ce l.O. 8os 70364 8,.4Sf3W1'dZ, BIIdS®ld; Smsataa, PA4Q934 '1'OBRES & ,LLP Tal: (787) 7b9-8000 1301 AveaweoftheAnwdm F= (789) 767-9177 IJew Yod6N€ 10019-6022 Td: (212) 50&1700 Fax:(212)506-18Q0 6Le9L =FBli A16p,q, MT.C 4®6°qi 7!3° VQ®Z°i8p" S®l4i 5i-AQN-BQ
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NOV 05 1998 12:08 FR yUIMPSON COBURN 9 314 552 7000 T0#36705136-9133 P.36/39 ,yov-64-88 18:57 FrmrHIk4TD.4 WILLIAIRS 1426 P-498 P.18/28 F-783 support: °'The instant case does not involve any of tbese clearly delineated putposcs-" CommonwCalth's Opp. Br. at 13. Nctitber fedet-q7 nor Paerto Rico law prohibits the disclosure of recipient-idenntifying ia&trmation.x Tlte simple ttuth is thet Medicaid ttcipients, as a condition of .receiving benefits, agmd to pmvidc this informatian - and even testify in couR, if necessary - in the Commonwealth's third-party reimbursement suit. CITE. In fact, if the Commonwea&h bad brottgttt asing1® claim To recover ftutds paid to treat a single Medicaid patient, there would be no question tbqt Uefendaats would be ettiiiled to recipient-identifyiag infonnation. Witbout doubt, Defendants would be cntiiled to obtain the patieat's mCdioal records. cross-e::aamine ft trensing doctots, and depose ihe secipient. Tbe law governing access to such discovery does not depend on tbe number of claims tllat tbe Commonwealtb toulateealiy chooses to join in a sin(gle ° direct aetion.° Aefeodattis' sight to defend tl7emselves is not dintinished bscanse the Commonwealth sttes for mote motle9 and prefita not to allow Aefatdants to discover the details. The Commonwealth's suit is for the "reiaabtusement for all monies paid by the Cotrmo>awealrh of Puarto Ft9co for... health care 1'ecipienis who sufrer... from tobacco-relaud disease as a result of the aetio;ls of defeadants." SAC. 42. As stuh, aiae Commonwealth is suing tlltder thz very statutoty scbeme teqiaring coopemtion of Medieaid tecipizalts and, therefore, the diselosnto ofsecipienC fdentifYing infonqation. The Conwwnwealtb cannot have it both ways: the Commonwealth cannot sue to recover Mrdicaid eosts but then refuse to comply 4 Dcspue suggestinC othtrwiac, lhc CommonwsaliA eoes aot elk tc a siqple Paerto Rico case in support of ica position. .1-w Communwealth's Opp. &. at 16, fn.12 C"rcdacqoq of sred senxitivc rostorial ba, gsqt appcovett by co" m stte CopunoaweaRb of Puum Rieo"1. lhe CoromonwcaidPS lone clIe to Pueetn Rico lew atso docs nor suppoat 9ts pesidon. A at 14 (citiag to P.L. t1861. Publio Lsw 26 cretms mt adminisuatioa tbr healtn servicas awd 9teabL faeiGiica, Public Law 26 daKS not adrlcs" eonfideqdaGq:- 16 FAX 086443
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