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CONFIDENTIAL-ATTORNEY WORK PRODUCT SUBJECT TO ATTORNEY-CLIENT PRIVILEGE WORKING DRAFT COPY ~@3 APRIL 25, 1988 FOR USE OF COUNSEL ONLY PREPARATION MATERIALS FOR THE DEPOSITIONS OF BROWN & WILLIAMSON EMPLOYEES IN THE TEXAS SMOKING AND HEALTM LITIGATION KING & SPALDING 2500 Trust Company Tower Atlanta, Georgia 30303 (404) 572-4600 29S00~04£~ 293002046 Subject to Claims of Privilege and Confidentiality: Produced Pursuant to Court Orders in State of Minnesota, et al. v. Philip Morris, et al.

III. LIKELY AREAS OF INQUIRY IN THE DEPOSITION OF A ..... B~OWM & WILLIAMSON REPRESENTATIVE ...... ~ ................ 9 Ao Co %he Representative'S Personal Backqroun~ ........... 9 1. Representative's Academic and Professional Background .................................... 9 2. The Representative's OpiNion on the Smoking and Health Issue ...................... 3. The Representative and His Family's Smoking Habits ................................ 13 Th~ Representative's Employment and Duties at Brown & W~ll£a~son .............................. 14~ i. The Representative's Orientation and Early ° Employment at Brow~ & Williamson .............. 14 2. The Representative's PreseRt Duties at Brown & Williamson ............................ 16 Backuround Information on Brown & Williamson ....... 18 I. Brown & Willlamson's Internal an~ External Corporate Str~cture .................. ~8 2. Brow~ & Williamson's Position on the Smoking and Health Issue .............................. 21 D° Plaintiffs" Attack on Brown & W£111amson's Position on the Smoking and Health Issue ...... 24 4° Brown & Williamson's Position on Youth Smoking ....................................... 27 Brown & Williamson's Awareness of the Alleued Risks of Smoklnu ........................... 30 Background Information on the Brown & Willlamson Research and Development "Department .................................... 31 Z93002047 293002047 Subject to Claims of Privilege and Confidentiality: Produced Pursuant to Court Orders in State of Minnesota, et al. v. Philip Morris, et al.

The Nature of Smoking and Health Research Conducted by Brown & Williamson ............... 33 a. Animal Testing ........................... 34 b. Fractionalization Studies ................ 35~ c. Filtration Studies ....................... 36 d. Additive Testing ......................... 38 Smoking and Health Research Conducted for Brown & Willlsmson by Others .................. 40 Brown & Williamson's Efforts to Stay Abreast of Smoking and Health Research ........ 41 Warnings Issued by Brown & W£111amson ~bout the Alleged Risks of Smoking ............ 42 Brown & Williamson's Marketing, Advertising, and P~gmotional Activiti@s ............................. 43 I. The Structure of Brown & Willlamson's Advertising and Marketing Department .......... 44 2. The Advertising and Marketing Department's Interaction with Other Brown & Williamson Departments ................................... 45 The Goals of Brow~ & Willlamson's Advertising ................................... 46 4. Outside Advertising Agencies .................. 48 Voluntary and M~ndatory Restrictions on Brown & Williamson's Advertising and Promotion Practices ....................... 49 Council Fo; Tobacco Research ................... 5! Background Information on the Tobacco Industry Research Council ..................... 52 Background Information on The Council for Tobacco Research .............................. 53 Brow~ & Wllllamson°s Dependence on The Council for Tobacco Research .......................... 55 Brown & Williamson's Dissatisfaction with The Council for Tobacco Research .................. 56 T~ Tob@cco Institute .............................. 56 ~e Federal Trade Commission ....................... 58 T~ True and NatiOnal Enquirer Articles ............ 59 -2- 9300Z04 293002048 Subject to Claims of Privilege and Confidentiality: Produced Pursuant to Court Orders in State of Minnesota, et al. v. Philip Morris, et al.

Plaintiffs in the Texas s~oklng and health 1£t£gation have sued Brown &'Williamson ("B&W"), the five other major cigarette manufacturers, the Tobacco Institute, the Council for Tobacco Research~ end local cigarette distributors seeking damages for injuries allegedly caused by smoking cigarettes. Plaintiffs contend that the defendants are liable to the smokers and their families because they participated in the manufacture, design, and marketing of a product with k,own disease-causing properties. Additionally, plaintiffs have alleged that B&W and the other defendants actively engaged in a conspiracy to conceal, misrepresent, and suppress information on the health risks of smoking to maintain the demand for their products. Depositio, of B&W employees in these lawsuits will soon follow their identification in B&W's responses to plaintiffs" interrogatories. This memorandum will attempt to serve as an aid to both B&W's representatives and their attorneys in the preparation for these depositions by identifying areas of inquiry which plaintiffs have covered in the depositions of representatives of other tobacco companies in cases in Texas and elsewhere. For each area of inquiry, the memorandum provides a list of possible questions which the B&W representative may be asked. These questions are based upon actual questions which plaintiffs have asked in depositions of management, marketing, and research employees of other tobacco companies. An effort has also 9300 049 293002049 Subject to Claims of Privilege and Confidentiality: Produced Pursuant to Court Orders in State of Minnesota, et al. v. Philip Morris, et al.

been made~o discuss how plaintiffs will use this information to support their case against B&w and the other tobacco companies. Final~y, suggested responses and sources of information concerning likely ~usstions are provided for certain questions. If. BASIC P~EPAR~T~ON OF THE B&W R~PRESENTAT~VE The successful presentation of B&W's factual and legal theories in the deposition of its designated representative may depend in part upon the representative's understanding of~ |i) the nature and purpose of a deposition; and (2) a deponent's obligations in answering deposition questions. Below is very basic information on depositions in general and some r~les for answering depositions questions which ~ay aid in the preparation of B&W representatives for their depositions. A. The DeflnitiQn and Purposes of a Deposition A deposition is nothing more than a procedure by which one par~y to a lawsuit orally examines under oath any person who may have any knowledge of the subject matter of the lawsuln. The purposes of such a deposition are several. First, a deposition provides a party an opportunity to elicit information from others to support the factual or legal theories in his case. Second, a deposition provides an opportunity for a party to discover the factual and legal theories of the opposing party. Third, a deposition may perpetuate the testimony of a witness who, for a -2- Z9S00~050 293002050 Subject to Claims of Privilege and Confidentiality: Produced Pursuant to Court Orders in State of Minnesota, et al. v. Philip Morris, et al.

varietyT0~.[~easons, may be unavailable for trial. Finally, a de~ositlon ca~ be used during t~e trial of the came to impeach a witness whose trial testimony varies from his deposition tes~im~ B. Some R~es for ~nswerina Deposition Ouestions It should be noted that, under certain circumstances, deposition testimony can be introduced as evidence at trial. Therefore, deposition testimony should be considered as important as trial testimony. Preparation is important. How a question is answered during a deposition can be as important as the answer itself. Accordingly, the following rules should be observed in answering questions during a deposition (1) Tell the truth. (2) Tbir~k befor@ you speak. Allow at least two full seconds to elapse before you begin to answer each question. This allows counsel to formulate objections and, more importantly, it allows you to think through your answer before you start answering. (3) Answer the question. The examiner is e,titled to an answer to the specific question he asked, but only to that question. (4) Do nO~ volunteer information. You are not there to educate the examiner. (5) D~ not answer a Question vou do not understand. It is up to the examiner to frame intelligible questions. If he cannot, do not~-help him. Do not explain to the examiner that the question is incompreh~.~sible because he has misunderstood terms of art you~ busine~, trade, or science. DO not help the examiner by -3- 293002051 293002051 Subject to Claims of Privilege and Confidentiality: Produced Pursuant to Court Orders in State of Minnesota, et al. v. Philip Morris, et al.

asking, .'/Do you mean x or do you mean ¥" If you do, you will then be ~eked both of these questions, and probably a lot more that flow from them. (?~= yalk in full, complete sentences. Unless it is a simple questi0~, it should not be answered yes or no. ~eware of ques%ions with double negatives in them. (7) You only kno~ what you have seen or heard. Questions are often phrased, "Do you know...?'. There is a difference between a question which asks what you know, and a question which asks you whether you have any information bearing on a particular subject. You may answer the former only if you have seen or hear'd something, that enables you to make a positive statement, not Just an opinion or a belief. (8) Do not aues~. If you do not know or cannot recall something, say so. This rule becomes more difficult, but even more important, when the examiner is scoring poinns or making it appear to you that only an idiot does not know the answer ~o the question. Do..not quess. {9) ~e ~s specific ~E ~ vauue as your memory allows, but stick to your true reco~ectlon. If you are asked when something occurred and you remember that it occurred on January 15, state, "On January 15." If you cannot recall the exact date, state the approximate date. If you cannot recall an even approximate date without.guesslng, say "I don't recall." [I0) Oo no~ explain your thouqht processes. If your answer to a queeriSh.depends on your recollect~ons of facts not called for by the question, do not refer in your answer to those other -4- ~9300~05~ 293002052 Subject to Claims of Privilege and Confidentiality: Produced Pursuant to Court Orders in State of Minnesota, et al. v. Philip Morris, et al.

facts. _i~@ther words, if you are asked when a conversation with Jones occurred, and you recall that it had to be in December because you met Smith after Jones and that was in January, do not explai~-thought process to the examiner. Just say that you believe ~h6 conversation occurred in December. (ii) In ~e~tifyinu on.conversations, make it clear whether you are paraphra~inq qr uuotino directly. (12) In answerino ouestiogs calli,q for ~ comolicated series of events or extensive conversatlonsm ~ummarize where Dosslble. The examiner, if he is doing his job properly, will ask for all the details. It is always possible, however, that the examiner will accept your summary. (13) Mere=. characterize you~ Qwn testimony or try to cO~vlnce the examiner that what you say is tr~@. "In all candor," "honestly," "to tell you the truth," "~'m doing the best I can," are neither necessary nor appropriate. (14) B~ 9areful with adjective~ ~,d superl~tives. "Never" and "always" have a way of coming back to haunt you. (15) Do not testif7 ,~ to what other people know unless you are ask~ about ~ s~ecifica11y. Even then remember that it is difficult Eo know wha~ other peopl~ know. (~6) ~ ~ot testify a~ to 7our state of mind unl~Ss you're specifically a~ked about it. If the question is "Did you read that document", the answer is, "Yes', not "Yes, and I believe every word in it." -5- 29300~053 293002053 Subject to Claims of Privilege and Confidentiality: Produced Pursuant to Court Orders in State of Minnesota, et al. v. Philip Morris, et al.

{17)~f you are asked about information in a document which is an exhibltj ask to see that. document. Read it carefully before (,or while) answering. (l~. If yoq at@ asked about information which is not am e_xhibit ~t the deDositioq, answer th@ question ~f you can recall the answer, but do not tip Qff the examiner as to the existence of documents he 49es not ~now about. If you canno~ answer without looking at a document which is not marked as an exhibit, you may simply answer the question by stating that you do not recall. If you can answer the question, do so, but don't say, "i don't know, but I could tell you if I had the document here." After a witness states he does not recall a fact which examiner believes he should have knowledge of, the examiner may ask if there is such a document which can refresh his recollection. If he does, then you can tell him about documents which contain the information. (19) Do not le~ the examiner put words i, 7our ~outh. Do not acceQt his characterizations of time, distances, personalities, or events. He means no good for you. Rephrase the question into a sentence of your own, using your own words and stating the facts neutrally. Example~ Question: "You were there for an extremely long time, weren't you?" Answer: "I believe I was there about two and a half hours." (20) Do not answer ~ compousd uuestion unless you .[e c@rtain you, bare all %~ per%~of it in mind. Ask the examiner to break the compound question into separate questions. (21) ~a9 ~ar~icular attention to the i~troductory clauses ~rece~inu th~bo~7 9f the quesZio~. Leading questions are often 39300~:054 293002054 Subject to Claims of Privilege and Confidentiality: Produced Pursuant to Court Orders in State of Minnesota, et al. v. Philip Morris, et al.

preceded .~ statements which are either half true or contain facts which you ~o ~ot know to be true. Do not have the examiner put yOU i~ a pos~tion ofadopting half truths or unknown facts on which he~_~i_base further questions, Instead, disclaim the introducqion and give your answer. (22) Ask for a break whenever yoq nq~d it within reason. A deposition is not an endurance test, and you can and will make mistakes if you get too tired or comfortable or uncomfortable. You should also ask for a break if you are seriously confused or concerned about an area of questioning. Use all recesses to follow counsel to a place where you can confer in private. (23) If you ar@ interruD~, le~ ~he l@wver finish his ~nterruDtion and then firmly bu~ courteQuslv $~aEe ~ha~ you had not finished your answer to the p~evious, uuest~o~, (24) Qo not adopt a, examiner's summaz-w of your Drlor tes%imonM. He almost certainly wall shade his recitation to help his cause. (25) If you are finished with an answer a~ the a,sw~r is c~molete and t~uthful, remain qui~. Do not expand upon it. Do not add to your answer just because the examiner looks at you expectantly. (26) Do not ~re% to SUDDIv asv infor~tio~ Or documents requested by.the examiner. If he asks you to get documents or information, consider that request as made to counsel. (27) If there is an Qb~.e(;t~on to the ~uestlon, listen to the obiection ve~-q~efullv. You may learn something about the -7- 9300 055 293002055 Subject to Claims of Privilege and Confidentiality: Produced Pursuant to Court Orders in State of Minnesota, et al. v. Philip Morris, et al.