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1086 552 Q- i0 A- 0- 15 2O 25 thirty-eight thousand, five hundred and forty-five dollars and sixty-two cents ($35,338,545.62), correct? Yes. And its -- that's relatively close to the number for the year nineteen eighty-seven (1987) as reflected in the Exhibit RJR-3 that you've previously filed? Yes. Correct. Now, when you turn the page in the document I'm showing you, you see sponsorships, an entire page is reflective of sponsorships for the years nineteen seventy-six (1976) through nineteen eighty-seven (1987), correct? Yes. And it goes so on and so forth. So for the year nineteen eighty-seven (1987), your company spent one million, three hundred and forty-five thousand dollars ($1,345,000) in sponsorships. We turn the page, we get to point of sale, it's one million, seven hundred and thirty-five thousand dollars ($1,735,000). Page for print advertising, page for signs of six million eight hundred and thirty-nine thousand dollars ($6,839,000). Production on media signs, two million and ninety-one thousand dollars ($2,091,000) and the last page is agency fees. Now, when you look at this document, Mr. Hoult, you see, for example, Export is always reflected AUDIOTRANSCRIPT, D~v~,~o~ de Pierre Viloire & Associgs Lt~e

1087 553 5 l0 15 2O 25 as a unique family. So, total spendings for nineteen eighty-seven (1987), I'm looking at the first (ist) page now, My Lord, nineteen million, seven hundred and seventy-three thousand, six hundred and nine dollars and thirty-one cents ($19,773,609.31). There is, of course, no way that one could, by looking at any of the pages in this document, determine what the breakdown is or was between the line extensions in the Export family? A- That's correct. Q- Right. I'd ask you, Mr. Hoult, to file -- we'll produce this document as AG-18 and ask you to obtain... THE COURT: This is Mr. Irving's copy. You'll file that. Me BAKER: We're going to file this document. THE COURT: We'll make a copy later on. Me BAKER: Can we hold it back and make a copy, and then we can file it. Would you undertake to provide for the Court the information that will allow us for the eleven (ii) year period, that is nineteen seventy-six (1976) through nineteen eighty-seven (1987), to get a breakdown of the expenses within the brand families and the areas of AUDIOTRANSCRIPT, Division de Pierre Vilalre & Associ¢s Ll~e

1088 554 5 i0 15 2O 25 Canada that you designated a few days ago, that is to say the five (5) areas, to the extent that it is possible. So, for example, I understand, Mr. Hoult, that when you're advertising in a national magazine, you can't distinguish between Ontario and Quebec, we understand that. But, for example, with billboards, you can distinguish with the point of sale costs from one province to another, to the extent that it is possible. That is the kind of information that we seek and, with the Court's permission, I now demand that that information be provided to us. Me IRVING: My Lord, it's all very well for my friend to demand, but surely that is exactly the kind of request that ought to have been made at the time of the discoveries; that's what discovery is for. The document which has just been handed in was a document which was prepared by the company at the request of Mr. Baker for the purposes of discovery. If the information now asked was considered essential, I don't know why it wasn't asked for then. Mr. Hoult's cross-examination is virtually finished. I have no idea how long it would take to obtain that kind of information and I have no idea if it is available and what kind of time and trouble would be required to put AUDIOTRANSCRIPT, Division de Pierre Vilalre ~ Associ~s Lt4e

1089 555 5 i0 15 20 25 it together. I have no objection, in principle, to any piece of information being given to my friend, I simply say that in the cross-examination of a witness, once the trial has begun and once the Plaintiff, wisely or unwisely, has decided as part of its case to put in general figures concerning advertising, this witness is not in a position to answer the questions my friend wants. Surely it's up to Mr. Baker as part of his own case then to obtain the information he wants. I haven't heard anything which shows why it's relevant and why, at this stage, after six (6) days of discovery and a great many undertakings fulfilled, filing' cabinets filled with documents filed, my friend asks where is stuff advertised and in what things. He has documents, in that huge mass, that show every newspaper and every magazine in Canada in which these ads are carried, and he has had them in his hands for months and months and months. He knows all this information. It is all in the documents. Now, I don't say that the breakdown between the brand family is, because I don't believe it is. But my friend wants to know where do you advertise, it's all there. I was just looking at one of the documents a moment ago, it goes right across the country, it shows AUDIOTRANSCRIPT, D~vi,~oo de Pierre Viloire & Associ~s Lt4e

1090 556 i0 15 2O 25 every newspaper, every magazine. We have provided so much information now that I'm most reluctant at the conclusion of a cross-examination to make undertakings which are properly discovery undertakings, and that said, let me just check, My Lord, and see what we might... My Lord, perhaps we can hold it and come back to it -- my understanding, and Mr. Thibaudeau is reminding me, Mr. Baker may recall too, I'm not sure, I think that Mr. Baker was told at the time of the discoveries that we were not able to get that kind of breakdown and what we were able to get is what is was given in the document now just filed. And if I could just take notice of the request and at the adjournment we will see what further material could be made available and if there is any, then -- and if it doesn't take weeks of effort, because I would object if the company was going to have to be put to, you know, to recreating a whole lot of records at great time and expense. But if it would be available, I have no objection to them getting it. But I think we're to have to take a few minutes to find out whether in fact there is any such information available. THE COURT: Anyways it's not available today for sure. AUDIOTRANSCRIPT, Division de Pierre

1091 557 i0 15 20 25 Me IRVING: No, it certainly isn't. And my recollection is that it's simply not available at all because we weren't able to find it. THE COURT: So you'll reserve your objection, if any? Me IRVING: Well, I'll reserve, may I just reserve my objection for the moment until I see what we can do and... Me BAKER: I understand my friend's reservation in respect of the objection, in respect of the request, My Lord. I merely would like to tell you that when he points to the filing cabinets and says it's all there, my observation is that the documents that my friends provided us with last Christmas, yes, there were a lot of them, and yes, they weighed a lot, and yes, they came in eight (8) very large boxes. I would defy my friend with a team of accountants and a team of lawyers to go through those boxes and those documents that they have provided us with -- and I'd give him six (6) months to do it in -- and I don't think he'd be able to give you the kind of information or give us the kind of information that he has just suggested that we should have available now from those documents. That is... AUDIOTRANSCRIPT, Division de Pierre Viloire & Associ4s [,4e

1092 558 10 15 2O 25 Me IRVING: I'm not saying that. THE COURT: I think what he's suggesting is that you should have asked that information before. Me BAKER: My Lord... THE COURT: But I do realize there are a number of documents... Me BAKER: Let us understand something, My Lord. There were objections put in the course of a hearing before you last fall by Mr. Potter of Imperial Tobacco. I made requests for certain kinds of financial data; that those requests were denied on the basis of relevance. I took that to be a cue that there were certain things that I could only ask for in the course of a trial after the relevance was set up. There was no point in asking questions and trying to get information in the course of discoveries and going to you and then going to the Court of Appeal. I was content to wait until the trial for certain kinds of information, taking my cue from Your Lordship's decision of last December, nineteen eighty-eight (1988). So I think it's improper and unfair for my friend AUDIOTRANSCRIPT, Divislon de Pierre Vilalre & Asso¢i~s Ltge

1093 559 i0 15 20 25 to say the time to get this stuff was at discovery. We've had a lot of informal telephone conversations in the course of the last six (6) or seven (7) or eight (8) or nine (9) months. I knew what they were prepared to make available and what they were not prepared to make available. Now he's opened up the door to the questions, because it is he who has filed the document, not I. I have no further questions for Mr. Hoult at this time, subject to the information being forthcoming. THE COURT: So, Mr. Irving, your objection is reserved. Me IRVING: Yes, for the moment, My Lord. I will re-examine Mr. Hoult and... But may I point out in response to Mr. Baker that, from our side, as far as RJR was concerned, we provided all the documents that Mr. Baker requested and that all the documents which are there are ones which he did, in fact, request. And I'm looking, just for example, I mean he has the nineteen eighty-seven (1987) Media Plan. THE COURT: But what's the point of arguing all this? Me IRVING: Well, it's just simply that this request is very AUDIOTRANSCRIPT, Division de Pierre Vilalre & Associ4s Lt~e

1094 560 5 i0 15 2O 25 untimely and unnecessary in my submission. Mr. Hoult... THE COURT: But I don't have an objection in front of me. You're reserving your objection. If you have something to say, you'll tell me as if and when you have something to say. RE-EXAMINATION BY Me COLIN IRVING on behalf of Petitioner RJR-Macdonald Inc. Q- Mr. Hoult, would you look at Exhibit AG-2, please. Could I have AG-2? THE COURT: What was it? Me IRVING: AG-2 -- it was the big cardboard. I think it's on the left of your... Me TREMBLAY: It's the canoeist. Me IRVING: Q- Now, Mr. Hoult, Mr. Baker asked you about one side of that document. And that is a point of sale advertisement, is it? A- Yes, it is. Q- And how would it be displayed? A- This particular display would either be hung from the ceiling or it would be free-standing or it would be held AUDIOTRANSCRIPT, Division de Pierre Vilolre & Associ~s Lt~e

1095 561 I0 15 20 25 in a frame in a retail store. Q- Would both sides always be visible? A- Yes, they would. Q- Yes. Now, would you look at the side that Mr. Baker didn't refer you to. Is that a brand family ad, Mr. Hoult? A- Yes, it is. Q- In the sense that it shows virtually the whole of the Export line? A- It does show the whole of the Export line. There are five (5) -- five (5) individual brands. Q- All right. So that anybody who saw one side would be in a position to see the other side as well, would they not? A- They would be in a position in terms of their normal shopping behaviour in a store, yes. Q- Thank you. Me BAKER: You mean if he walked around and looked at them? A- If he walked around the store. Me IRVING: Mr. Baker, I'm re-examining right at the moment. I think you can take it that one could only look at one side at a time. AUDIOTRANSCRIPT, olvisioo de Pierre Vilaire & Associ6s Lt4e

1096 562 i0 15 2O 25 Me BAKER: That's the way I take it. Me IRVING: Yes. Q- Now, may I have the Exhibit AG-10 and the AG-II, please. Now, first of all, Mr. Hoult, would you look at AG-II, which is the bulky document. A- Yes, I have it in front of me. Q- You do? All right. Now, in looking at that document, Mr. Hoult, are you able to say who wrote AG-II? A- This is an original research report produced by the independent research agency. And in this case I see from page seven (7) at the bottom that the research agency was the Creative Research Group Ltd. Q- So is there anything in AG-II which was written by anyone within RJR-Macdonald? A- No, this is an original research report produced by that agency independently. Q- Now, both AG-10 and AG-II relate to the cigarette called Vantage, Mr. Hoult. When was Vantage brought on the market? A- It was introduced into Canada in nineteen seventy-five (1975), nineteen seventy-six (1976). Q- All right. Could you just explain briefly the AUDIOTRANSCRIPT, Divi,ion de Pierre Vilaire & Assoclgs

1097 563 i0 15 20 25 circumstances in which it was brought into the Canadian market? A- Briefly, our company, RJR-Macdonald, at that time was experiencing severe share loss, particularly to our competitor, Imperial Tobacco, and particularly because Imperial Tobacco especially, but also our other competitors, were introducing successfully cigarettes lower in tar and nicotine and cigarettes that were described as light. We had been very tardy, very late in our recognition of this trend, and in order to stem our loss, Vantage was introduced very quickly as an existing brand from the United States. Q- Now, there is a reference in AG-II, and in AG-10 as well, to a series of advertisements which were known as the candid series. And... THE COURT: As the what? Me IRVING: They were called the Candid, C-A-N-D-I-D series. Q- And two (2) or three (3) of those advertisements, in their French version are, in fact, part of AG-II. Where did those advertisements come from, Mr. Hoult? A- The advertisements were, of course, produced in Canada, but the advertisements themselves originated from the campaign in the United States. As I said, the brand was AUDIOTRANSCRIPT, Division de Pierre Vilaire & Associ~s Ltge

1098 564 5 i0 15 2O 25 introduced very hurriedly, and we took both packaging design and name and advertising campaign from the United States for the introduction of the brand. Q- I'm showing you from Exhibit AG-II an advertisement which is headed, "Etes-vous vraiment d~cid~ ~ arr~ter de fumer? Is that the French version of one of the Candid series? A- Yes, it is. THE COURT: At what page is it? Me IRVING: It's the very last page of... THE COURT: It doesn't have a... Me IRVING: The report is about three hundred and fifty (350) pages long. This one is marked four one one three (4113). Me BAKER: From which document, Mr. Irving? Me IRVING: AG-II. It's the last page. May I just hand that up to the Court so you can see what we're... Me IRVING: Q- Now, Mr. Hoult, I know that you were not here in nineteen seventy-five (1975). When you came back to the AUDIOTRANSCRIPT, Division de Pierre Viloire & AssociCs Lt~e

1099 565 A- 15 2O 25 company and came to Canada, were those ads still being run? Yes, they were. And then what happened? We changed the campaign for -- for Vantage to a more visual campaign and we, in fact, at testing did not pursue this candid campaign any longer and indeed it hasn't been -- been run since that time. Now, did you have a view about the candid campaign, Mr. Hoult? Yes, I did. Which was? My view of this campaign was that it was not a campaign that was appropriate to a growing brand. I didn't think it was particularly good advertising. I didn't think it was particularly good advertising in the United States and I was very uncomfortable with --with the fact that it was lifted from the United States and put into Canada without the proper evaluation. The brand, at that time, had clearly developed the profile which I have described and I felt we could develop better advertising, which indeed we did. And the suggestion is made, Mr. Hoult, that that ad and -- was intended to persuade people not to quit. Can you comment on that? AUDIOTRANSCRIPT, Division de Pierre Viloire & Associ4s Lt4e

ii00 566 i0 15 2O 25 A- It's very difficult to comment on -- on something that occured a) when I wasn't there and b) twelve (12), thirteen (13) years ago. But I -- I would say that that could be an interpretation. Certainly I would not run the advertisement today for that reason and -- and I think it was an error to run it at that time. Q- And you say it has not been run since? A- Since nineteen eighty-eight (1988). Me IRVING: And those are all... Those are my questions in re-examination, My Lord. May I take one moment to show something to my friend, Mr. Baker? Me BAKER: May I, My Lord? THE COURT: In re-cross? Me BAKER: Yes. Me IRVING: I have no -- I beg your pardon? THE COURT: Are you finished? Me IRVING: Yes, I'm finished. Thank you, My Lord. AUDIOTRANSCRIPT, Division de Pierre Viloire & Associ~s Lt@~

ii01 567 i0 15 2O 25 THE COURT: YOU have questions arising out of Mr. Irving's questions? Me BAKER: Yes, I do. Me IRVING: My Lord... THE COURT: We'll see what questions. question you had asked... Me IRVING: Yes. It seems to me that that was proper re-examination. I didn't take in any new areas and I don't see why my friend has any basis to begin again. THE COURT: I'll see -- I'll see the question. If it's directed to certain CROSS-EXAMINATION BY Me BAKER: Me BAKER: Q- You were asked by your counsel, Mr. Hoult, in connection with Exhibit AG-II, who the author of the document was. Do you remember? A- Yes, I do. Q- And you were referred to page seven (7)... A- Yes. AUDIOTRANSCRIPT, Division de Pierre Viloire & Associ6, Lt~e

1102 568 5 i0 15 2O 25 Q- ...of the document ... A- Yes. Q- ...and I think you said that this document was authored by the Creative Research Group Limited? A- Yes. Q- Now, is the Creative Research Group Limited a company that's done a lot of work for your company over the years? Me IRVING: My Lord, the case will never end if we don't follow the standard rule which is, there is an examination, a cross-examination and a re-examination. These are all questions Mr. Baker could have put before and it's his own document, which speaks for itself anyway. I object to the resumption of cross-examination when the re-examination is over, because every time it's simply going to lead to an endless toing-and-froing and that's why the rule is that -- that there is the three (3) stages. Now, we've passed the three (3) stages. I object to that. THE COURT: I viewed the question as a clarification of one (i) of the questions asked in re-examination. Although this has been said about three (3) or four (4) times... AUDIOTRANSCRIPT, D~v~,io. d. e~erre Wloi~e & A,,o~i~, U#e

1103 569 i0 15 20 25 Me IRVING: Yes. THE COURT: ...in his previous testimony. Yes, Creative Research Group Limited has done a lot of work for RJR. It's been said before a number of times. Me BAKER: May I continue, My Lord? THE COURT: Well, unless you want to bring something to clarify, you are in re-cross. There is no re-cross. Do you want to clarif~y a point which might have been misleading or improper or -- or left out? Me BAKER: No, I'm not suggesting that there was anything improper or misleading at all. The issue of Creative Research has not yet been highlighted in this case. My friend chose to do it, for some reason, to indicate who the author of this document was and I'm simply exploring what the witness, whether Creative Research has done a lot of work for that company over a period of time. And my last question would be does Creative Research Group continue to do this kind of work for your company? A- I, having left the company in September, I can't say whether it... AUDIOTRANSCRIPT, Divi,ion de Pierre Viloire & A$so¢~4s Lf4e

1104 570 5 l0 15 2O 25 Up until the time you left the company? It continued to be a major supplier of our company, yes. A major supplier? Yes, market research supplier. Me BAKER: No further questions. Me IRVING: My Lord, I would like to ask that Mr. Hoult should now be excused, his examination being over and we have the difficulty of this -- this request for additional information and, at this moment, I'm not in a position to tell the Court whether it is available. We did look for it once before. I am looking at the discovery transcript, which I know the Court doesn't have, and advised Mr. Baker we didn't have it. We will look again and I'll do that at the morning adjournment rather than -- rather than have difficulties that the documents are there. But, I would like to have it clearly understood that Mr. Hoult will be excused now and is not going to have to wait and come back to this Court. If my friend wants to call him as his own witness, that's fine. And we will try to provide him with the information he wants if we have it. I doubt very much we do. THE COURT: Well, Mr. Irving, there is a question that was put to AUDIOTRANSCRIPT, Division de Pierre Viloire & Assoc~s Lt~e

1105 571 5 i0 15 2O 25 the witness whether or not he could provide the breakdown of the brand families in various areas, expecially the line extension marketing expenses. Either you have an objection to provide that or you don't, or the thing exists or it doesn't exist. Me IRVING: My Lord, I'm saying that Mr. Hoult was asked that on the discovery, and said we don't have the information. Me BAKER: My Lord, would you please be good enough to ask Mr. Irving to desist referring to discovery. Number one (I) it has not been filed. Number two (2) he. is referring to a very small part of the request I may or may not have made in the discovery and it is improper for him to suggest to you that everything I've asked for this morning was requested in the discovery. In any event, the discovery is not filed. You have already admonished the witness not to refer to it, more so Mr. Irving should not. He should know better. THE COURT: ' Be that as it may, either it exists or it doesn't exist and for that it is for the witness to say if it -- if it exists or if it doesn't exist. And if he needs time to verify, we'll give him time, whatever time he needs. AUDIOTRANSCRIPT, Divi,ion de Pierre Vilaire & As,od4s tt4e

1106 572 5 I0 15 20 25 Me IRVING: May I suggest, My Lord... THE COURT: Because obviously these are information that are not readily available. Me IRVING: Let me make this suggestion, My Lord. It's almost eleven (11:00). Mr. Potter will be following with the witness from Imperial Tobacco and we'll have to change tables anyway. That will take a little additional time. I will double check the -- the information, and at the resumption I will recall Mr. Hoult and I will ask him whether that information is available or not. And Mr. Baker can ask him if it's available or not and then we will have our answer. So if we could perhaps break a little early now and we'll change the tables around in the meantime because this won't take very long, I will have somebody talk to the company in Toronto and we will verify the -- the question entirely and at the resumption we'll just take a few more minutes with Mr. Hoult and then we'll be done. THE COURT: Could I have the Exhibit, the latest one. Me BAKER: The little one that we're photocopying? AUDIOTRANSCRIPT, Division de Pierre Vilalre ~, Asso~:i6, Ll4e

1107 573 i0 15 20 25 THE COURT: You want to make a copy... Me TREMBLAY: AG-18, My Lord? Me BAKER: Yes, that we... THE COURT: To make a copy of what you've... Me BAKER: Did you give it back to us? Me TREMBLAY: No. Here, here I have it. THE COURT: It's AG-18. Me BAKER: Do you want it during the break, My Lord? THE COURT: Yes, we'll make a copy. copy of AG-18? Me BAKER: I think... Me IRVING: Yes, we have a copy. THE COURT: I will resume for fifteen (15) minutes. Do you need -- do you have a Might as well AUDIOTRANSCRIPT, Division de Pierre Vilaire & Associ4,

1108 574 5 i0 15 2O 25 break now. Me IRVING: Yes, perhaps My Lord, we could signal to you as soon as we've got everything arranged. It might take a little longer than fifteen (15) minutes, My Lord. THE COURT: Okay, well, tell Mr. -- the greffiero Me BAKER: Comme ga, vous avez la copie officielle maintenant? THE COURT: Oui, j'ai l'original. Me BAKER: Et c'est quoi, ga? C'est AG... THE COURT: AG-18. Me BAKER: 18, hein? Merci, Votre Seigneurie. Me IRVING: My Lord, with the leave of the Court, I would put just two (2) or three (3) additional questions to Mr. Hoult. RE-EXAMINED BY Me COLIN K. IRVING, for RJR-Macdonald Inc.: Q- Mr. Hoult, did you double check at the interval with the officials at RJR-Macdonald to see whether advertising AUDIOTRANSCRIPT, Division de Pierre Viloire & Associ~s Lt~e

1109 575 i0 A- Q- A- 15 2O Q- A- 25 expenses are recorded in such a way as to give a breakdown by individual members of the brand family or on a province-by-province basis? I did. I spoke to the marketing vice-president and the financial vice-president, and the answer was no in both cases. All right. Did you ask whether information, that kind of information on a brand-by-brand basis could be obtained? I did. And what was the answer? The answer was that in order to obtain it, it would require taking a large number of disparate and different documents, records of what was done, making estimates from these records of the weight of advertising for each of these line extensions, and then converting those estimates into dollar costs applicable at that time. So, such data as we could obtain would be in large part estimates and could not be verified in a conventional financial fashion. Now, for what period of time would it be possible to do that? Do you know? It would be possible to do that going back to nineteen eighty-six (1986), because such disparate documents, as I say, not financial documents, I repeat, exist back to AUDIOTRANSCRIPT, Division de Pierre Viloire & Associ~s L,4e

Iii0 576 10 15 2O 25 nineteen eighty-six (1986) but these documents do not exist prior to that date. Q- Do you know how long it would take to make these estimates? A- I was advised that in order to carry out this exercise -- and it could not be done for all these elements, I should add -- but for those elements that it could be done, the estimate is two (2) man-weeks. Me IRVING: If my friend has questions, otherwise I would make a submission on the request. My Lord, on that basis, I object to any requirements that the company should create documents that do not exist, even for purposes of discovery. Even for purposes of discovery, as is well-known, companies are not required to create that which does not exist -- and a request given at this stage during the trial, at the late stages of a cross-examination, in my respectful submission, is not one which should lead to any order from this Court. So I object to the company being required to carry out the kind of work which Mr. Hoult has referred to, particulary bearing in mind that it would be nothing but an estimate in any event. I would ask that Mr. Hoult be excused. AUDIOTRANSCRIPT, Di','i,lon cJe P~erre V~loire 8. Assoc;~s Lt~e

iiii 577 i0 15 2O 25 Me BAKER: May I respond, My Lord? I'd like first to address the issue that my friend raised, of the time that it would take to assemble the information. I think he said two (2) man-weeks. That's going back to nineteen eighty-six (1986) only. I have to assume that since this case was brought in nineteen eighty-eight (1988), that literally thousands upon thousands upon thousands of hours, of man- and woman-years have been expanded in time both by employees of the company, the company's counsel, all sorts of people. So it falls on relatively unsympathetic ears, My Lord, that somebody has to do some work to get some information which may be or may not be valuable for this Court, I don't know. And I won't know until I've seen it. Now, I don't require and I've not asked that Mr. Irving's client create a document. If they would wish to, that would make it easy. I don't know that you can order them to create a document, but what you can order them to do is to provide the raw data. And if he doesn't want to create the document, we'll create a document out of the raw data and we will scrutinize it, and we will suggest to the Court and qualify if there is any qualifying to be done or any estimating to be done off the raw data that we're given. But I think it is AUDIOTRANSCRIPT, Division de Pierre Vilaire & Associ4, Lt~e

1112 578 i0 15 20 25 unfair for him to say that they should not be subjected to any order simply because it would take somebody two (2) weeks to assemble it and that there's no special document already created. That is no response to a request for information which may or may not be relevant. It would seem to me that there has been a partial ruling already that that information may well be relevant. The fact that it is difficult for them to obtain is regrettable but that, I say and I say not arrogantly, is that's not something I can deal with. It's their problem. We've had to come up with documents. It's been difficult for the Crown in the course of this case to find a lot of documentation, but you do it. That's partly what this litigation is all about. It's a bit of a paper war. So my recommendation and my request to you, My Lord, is to issue an order that the raw data be provided from whatever kind of documentation it comes from and we'll all have our people look at it. And if we need Mr. Hoult again, we'll let Mr. Irving know. If we need another witness from RJR in the course of our defense, then we'll subpoena somebody else if we can't get that person voluntarily. This is not an attempt by us to keep Mr. Peter Hoult cooling his heels in a Montreal courtroom. As far as I'm concerned, given that this AUDIOTRANSCRIPT, Division de Pierre Viloire & Associ~s Lt~e

1113 579 i0 15 2O 25 evidence, if you order that it be given up, is going to take several days or weeks to assemble, as far as I'm concerned, for the present time, he can be released. That's not the issue. The issue is: do we have the right to the information, and I submit to you that we do. Me IRVING: My Lord, just one other point, if I may? This is the subpoena which, of course, Your Lordship has seen before, which goes back to December nineteen eighty-eight (1988). This is my friend's subpoena. And you'll see that all this information brand-by-brand was requested then. My friend doesn't wish to discuss what was said in the discovery, so I won't, but that's December nineteen eighty-eight (1988) and it is not news today that we do not have these breakdowns. This is just far too late. It's almost a year ago that the first request was made for this material on a brand-by-brand basis. And this, after all, is the plaintiff's case. My friend can do what he likes in his own case but, in my respectful submission, nothing he has said goes to the issue, which is whether, in the final stages of a cross-examination, the company can be asked to go back and create -- go through records and so on to create AUDIOTRANSCRIPT, Division de Pierre V/loire & Associ~s L,4e

1114 580 5 I0 15 2O 25 that which does not now exist and the relevance of which has not been demonstrated at the time. And if it is relevant, no doubt it will be part of my friend's case. THE COURT: Now, Mr. Baker... Me IRVING: I would ask... THE COURT: Mr. Baker, would you restate for my purpose exactly what you want the witness to bring or to look for, what you want the witness to do? Me BAKER: Data for the years nineteen seventy-seven (1977) through nineteen eighty-seven (1987) in respect of advertising expenses, advertising and promotional spending by RJR-Macdonald, broken down by brand and brand extension. As well as, for that same period, to the extent that it is possible, a breakdown for the five (5) areas of Canada that Mr. Hoult gave the Court two (2) or three (3) days ago, which is to say the Eastern Provinces, Quebec, Ontario, Manitoba, Saskatchewan is the fourth territory, and Alberta and British Columbia. THE COURT: That's it? Q- Now, Mr. Hoult, you've heard the request. Does that AUDIOTRANSCRIPT, Di~i,~oo de Pierre Vila~re & Associ~s

1115 581 i0 15 data exist? A - The data does not exist, My Lord. THE COURT: The objection is sustained. Me IRVING: May I ask, My Lord, that Mr. Hoult now be excused? THE COURT: Yes. AND FURTHER DEPONENT SAITH NOT. Me POTTER: My Lord, I'd like to introduce to you Mr. Donald Brown.