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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.

problems ~otentlal tricks in the question and how it should be handled from your counsel's objection. [28) N@v~r express anger or argue with the examiner. It will only hel~_,/~because you will lose the cautious and thoughtful attitude ~o~ need to avoid mistakes. If you find yourself getting angry, ask for a break, (29) Do not_exact to testify withou~ the o~her side scoriDg ~9_~. If the other side appears to you to be asking questions that call for answers that do not help your case, Just realize that it is his Job and accept the fact that every lawsuit has two sides. {30) A~oid~nv attempts at levity. The cold transcript that will result form your deposition simply does not reflect that you answered in a joking manner. ~f you make a Joke, you may find it v~ry unfunny when you later try to explain it to a Jury or a ~udge. (31) There is not su~ thin~ as ?off-the-recg~d'. If you have an audible conversation with anybody in the deposition room at any time, be prepared for questions o, that conversazlon. (32) If tb~ examiner appears ~otally confused ~bout your b~sine~s an~ its technical ~speqts, do not attempt to @ducat@ -8- 29300Zt)56 293002056 Subject to Claims of Privilege and Confidentiality: Produced Pursuant to Court Orders in State of Minnesota, et al. v. Philip Morris, et al.

Ill. LIKE~f AREAS OF INQUIRY IN ~HE DEPOSITION OF A A. The Rep~sentative's Personal Backuround The initial stages of the deposition of B&W's representative will be~'~prehensive inquiry into the representative's personal background. Topics which will be covered include~ i. The RePresentative's Academic ~d Professiona~ Back~rou,~ Plalntlf~s have attempted through interrogatories and depositions of employees of other tobacco companies to determine whether the personnel who developed and implemented the tobacco companies" policies and practicea on the smoklnq and health issue were qualified to make such decisions. To this end, plaintiffs will question the 8&w representative about his academic background {both undergraduate and graduate) and his prior employment history (both professional and academic) to determine if he has the scientific or medical background which plaintiffs allege is necessary to make informed decisions about the manufacture and marketing of a product with alleged health hazards. Plaintiffs may request the representative to bring a copy of his curriculum vitae to the deposition to expedite and facilitate discovery in this area. Possible Ouestions 1. What is your academic background7 2. What Jobs did you hold before coming to B&W? 3. What were your duties a~ the jobs you held before you came to B&W? 4. How" hasyour academic and professional background qualified you to make~t,he decision to market a dangerous product? -9- Z :*~ 0 0~ O5 7 293002057 Subject to Claims of Privilege and Confidentiality: Produced Pursuant to Court Orders in State of Minnesota, et al. v. Philip Morris, et al.

~estedResponses Wh~n'-c6nfronted with a question concern£ng one's q~alificatlons to decide wh~ther to market a dangerous product, be sure to disclaim that part of the question that assumes that cigarettes are dangeroug. -Ig you were not in a position of deciding whether marketed cigarettes, simply say so. If you did participate in the decision, emphasize the legality of the sale of cigarettes in general and Brown & Williamson's compliance with laws concerning the sale of cigarettes specifically. 2. The Representative's Opinion on the Smoking and Health Issue After exploring the representative's academic end professional background, plaintiffs may question the representative about his personal opinion on the smoking and health issue. Plaintiffs are interested in whether any B&W employee believes that smoking causes disease for several reasons. First, an employee's admission that he believes smoking causes disease may be legally attributable to B&W in certain circumstances. Second, plaintiffs will use an employee's personal admission that smoking causes disease as an indication that B&W's position is unreasonable because it contradicts or ignores the opinions of respected employees. Finally, plaintiffs will attempt to use the employee's admission that smoking causes disease against the employee during his deposition by exploiting the tension between the personal recognition of the alleged risks of smoking cigarettes and the ethics of pa~tlclpating in the production or marketing of such a product. -I0- 293002058 Subject to Claims of Privilege and Confidentiality: Produced Pursuant to Court Orders in State of Minnesota, et al. v. Philip Morris, et al.

~h!aintiffs are particularly interested in whether the represen£6ti~e's personal opinion on the smoking and health issue has changed ifi any way over the years in light of the alleged increasing ev~'denoe of an association between smoking and human illness~ -Thus, plaintiffs wall question the representative about the effect the Surgeon General's reports and studies showing an association between smoking and disease have had on his personal opi, lon on the smoking and health issue. Another method which plaintiffs may use to determine if a representative's personal opinion on the smoking and health issue has changed over the years is to ask the representative if he has authored any writings or publications on the smoking and health issue and then to compare those writings with present opinions. Plaintiffs will attempt to portray any representative whose personal opinion on the smoking and health issue has remained unchanged over the years as either unreasonable or ill informed. Plaintiffs will explore the background of such a representative to determine whether respected persons in the representative's life (e.g., parents, teachers, coaches, etc.) warned him about the alleged risks of smoking. Plaintiffs will want to know the basis for the representative's difference in opinion with these people. Plaintiffs will also test the validity of such representative's opinion on the smoking and health issue by questioning the representative about his knowledge of slang terms for cigarettes g9300 059 293002059 Subject to Claims of Privilege and Confidentiality: Produced Pursuant to Court Orders in State of Minnesota, et al. v. Philip Morris, et al.

such as -'c~:ffln nails" and "cancer sticks." Here, plaintiffs will attempt: to-determine the reasons why the representative's opinion on the smoking a~d health issue differs from the co~m~o, perception of smoking. Possible Ouestions I. Oo you believe that cigarette smoking causes disease? 2. What is the basis of your opinion? 3. Have you ever believed that smoking causes disease? 4. Do you think it is ethical to produce or market a product that causes disease? Have you ever written any articles in the smoking and health field? Are you aware that many people claim that smoking causes. disease? How long have you been aware of such claims? Are you aware that many studies conclude that smoking causes disease? How long have you been aware of such studies? Why hasn't the increasing evidence that smoking causes disease affected your personal opinion? Didn't your parents/teachers/coaches warn you not to smoke? Why would they warn you not to smoke? 10 Have you ever heard cigarettes called "coffin nails" or "cancer sticks"? When? What do these phrases mean? Do you agree with these meanings? Why? ~u~aested Responses Simply tell the truth when answering questions about your personal opinions on the smoking and health issue. Answers which indicate that the smoking and health question is an open controversy should emphasize that several studies have associated smoking with various dlse&s~s; that these associations have been well publicized and have bee~ accepted by some people; that these associations -12- 293002060 293002060 Subject to Claims of Privilege and Confidentiality: Produced Pursuant to Court Orders in State of Minnesota, et al. v. Philip Morris, et al.

emphaslze__~t~-~.need for continued research; that Brown & Williamson and the other ~obacco companies Support this research; and that premature acceptance of the opinion that smoking causes diseases can only res_~-~curtailing necessary research in the smoking and health field~ 3. The ReD~eseDtative and His Family's Smokinq Habits Plaintiffs will question the representative about his smoking habits to determine whether there is a contradiction between his life-style and his opinion on the smoking and health issue. Plaintiffs will attempt to portray a nonsmoklng representative's decision n~t to smoke as an acknowledgment that smoking causes disease. Accordingly, the representative will be asked if he has ever smoked, the reason why he does or does not smoke, and if he ever quit smoking. Plaintiffs will also question the representative about the smoking habits of his family to determine whether he has tried to influence the smoking habits of any member of his family. Plaintiffs may also question the representative about any smoking- related illnesses suffered by him or any member of his family who smokes. PQssible Ouestions I. 2. 3. 4. Do you smoke? Why? Have you ever smoked? HaVe yo~-_ever quit smoking? why did you quit smoking? Isn't i~ true that you don't smoke because of the health risks ~assoc~a~d wi~h smoking? -13- 293002061 293002061 Subject to Claims of Privilege and Confidentiality: Produced Pursuant to Court Orders in State of Minnesota, et al. v. Philip Morris, et al.

5. Do~s.@~[one in your family smoke? 6. Have you ~ver spoken with a member of your family about not smoking?. 7. Axe you pdeased or displeased that members of your family smo_k~ Have-y~u or anyone in your family ever suffered from a smoking related illness? Suqqeste~ Responses Answers concerning one decision to smoke should emphasize that the decision to smoke is a personal choice made by each individual as the result of many factors. Do not allow the questions to imply that the only reason one does not smoke is health concerns if that is not the case. Similarly, do not allow the questions to imply that the reason a parent discourages smoking by a minor child is necessarily because of the alleged health hazards of .~ smoking. Simply explain that the decision to smoke, like many other decisions, is an adult decisio, that should be made only by informed adults. B. The Representative's Employment and Duties ~t Br~wn ~ Williamson I. The Representative's Orientation and Employment History at Br~wn & Williamso~ ...... Plaintiffs will continue their inquiry into the representative's background by questioning the representative about circumstances concerning the beginning of his employment at B&W. Plaintiffs will also ask the representative about why he came to -14- 293002062 Subject to Claims of Privilege and Confidentiality: Produced Pursuant to Court Orders in State of Minnesota, et al. v. Philip Morris, et al.

B&W, about ~ach position the representative has held at B~W, his duties in those positions, and his role in those ~ositlons r~latin9 to the _smokin6 and health issue. _=_~s interesting to note that plaintiffs in the depositions Of other tobacco company representatives have show. a special interest in the orientation of a new employee at a tobacco company. Plaintiffs will attempt to discover if there is some sort of indoctrination process of a new B&W employee during the employee's orientation in which B&W attempted to influence the employee's personal opinion on the smoking and health issue. Here, plaintiffs will attempt to discover whether new S&W employees atte,ded presentations or received employee handbooks during their orientation which include information on the s~)king and health ~ issue. Plaintiffs have also shown interest in determining whether the B&W legal department plays a role in the oriemtation of new employees by imposing constraints on the new employee's performance of his duties (i.e., use of certain language in memoranda, review of work by legal department before circulation, etc.). ~ossible Questions I. When did you begin working at B&W? 2. Why did you begin working at B&W? 3. What positions have you held at B&W in the past? What were your duties in these positions? 4. Did your orientation process at B&W include a presentation on the smoking and health issue? 5. Who mad~ this presentation? What was said at this presentation about smoking and health? -15- 29300Z063 293002063 Subject to Claims of Privilege and Confidentiality: Produced Pursuant to Court Orders in State of Minnesota, et al. v. Philip Morris, et al.

Do ne~[employees receive an employee handbook when they begin 6. worMi~£~B&W? Does this handbook contain information on smoking and health? 7. Do~s B&W'~ legal department participate in the orientat~n of a new employee? 8. Doe~ B&W's legal department provide any instructions or guidelines for the performance of a new employee's Job? Suggested Responses Answers concerning presentations on the smoking and health issue should mention the Tobacco College, the Tobacco Forum, and other meetings in which B&W employees were encouraged to share their views on the smoking and health issue. A~swers concerning employee handbooks should include reference to "Tobaccoz Issues/Answers/ Actions." An effort should be made in any response in this area to dispel the notions that Brow~ & Williamson "brainwashes" its employees or coerces them to accept the company's petltlom on smoking and health. 2. Th@ Representative's Present Duties at Brow~.& Williamso~ Not surprisingly, plaintiffs will spend the majority of the deposition questioning the representative about his present or most recent duties at B&W. Areas of inquiry likely to be covered by plaintiffs concerning certain aspects of B&W's operations (e.g., research, advertising, etc.) are discussed more fully in the sections of the memorandum specifically dealing with those subjects. However~ plai@_tiffs wall question all B&W representatives abou~ certain subjects. For insta~ce, plaintiffs will attempt to determine th~extent of each representative's knowledge concerning -16- 293002.064 Subject to Claims of Privilege and Confidentiality: Produced Pursuant to Court Orders in State of Minnesota, et al. v. Philip Morris, et al.

the smokin~and health issue. Questions in this area would include whether the representative's duties included staying abreast of the literature on ~he smoking and health issue. If the representative was not pp~sonally responsible for monitoring the smoking and health literat~r4, plaintiffs will inquire how the representative was kept informed on this issue (e.g., briefings, abstracts, newsletters, etc.). Representatives from various B&W departments will also be questioned about their role in the formulation, adoption, or review of B&W's position on the smoking and health issue. If the representative did play a role in the formulation and adoption of B&W's position, the representative will be asked to identify those sources of information which contributed to and formed the basisf0r S&W's position on smoking and health. Here again, plaintiffs will question the representative about how his educational background and employment experience qualify him to participate in the formulation of a corporate policy on the health consequences of cigarette smoking. Plaintiffs may also ask each representative about his salary, benefits, and his ownership of B&W stock. Plaintiffs will attempt ~o use this infor~ation to imply that the representative has a vested interest in the welfare of B&W and the outcome of this litigation which would cause the representative to be less than candid in his testimony. p@ssible Oues~ions I. What at6 your present duties at 2. -What is'~our current salary? -17- 293002065 k o 293002065 Subject to Claims of Privilege and Confidentiality: Produced Pursuant to Court Orders in State of Minnesota, et al. v. Philip Morris, et al.

3. DO yosr~ceive an annual bonus? How is this bonus determined? 4. Are you ~volved in a profit sharing plan? 5. How much-B&W stock do you own? 6. Di~--yo~play a.y role in the formulation of S&W's policy on smoking and health? 7. What are your qualifications to formulate such a policy? 8. what materials were used to formulate such a policy? 9. Did your duties include staying abreast of literature on smoking and health? 10. Have you read each Surgeon General's report? ll. How did you keep up with developments in the smoking and health field? Suqqested ReSDO~es Answers concerning an employee's efforts to stay abreast of the literature should identify those sources of information on the smoking and health issue available to the employee, including scientific journals, medical Journals, abstract services such as Peters Technical Transfer Corp., information from the Clearinghouse on Smoking and Health, the BAT newsletter on smoking and health, CTR summaries, and the llke. The employee should avoid answering questions concerning what role these publication played in the formulation of B&W's policy on smoking and health unless he actually played a role An this process. C. Backorgund Information on. ~rown & Willlamson I. B~W~ ~tern~l and External Cgroorate ~t~ucture Anyrepresentative with a background in management will be q~es~ioned at length about B~W's internal and external corporate -18- 293002066 Subject to Claims of Privilege and Confidentiality: Produced Pursuant to Court Orders in State of Minnesota, et al. v. Philip Morris, et al.

structure. ~Questions concerning B&W's internal structure will focus on the n~t~r@ o~ and the relationship between the various departments w~hin B&W. Plaintiffs wlll specifically inquire about the existence'~f a medical department within B&W which is staffed by M.D.'s d~ing_resesrch and giving advice to management on the smoking and health issue. Questions concerning B&W's exter,al corporate structure will focus on the existence and relationship between and among any domestic and foreign parent companies or subsidiaries. It is likely that plaintiffs will explore the relatlo.ship au~ong BAT, BATUS, Inc., and B&W in depth at this time. Where foreign parent companies or subsidiaries have been. revealed in depositions involving employees from other tobacco companies, plaintiffs have attempted to focus on two areas of Inquiry~ l) whether these related foreign entities manufacture or market cigarettes; and 2) if these foreign entities do ~anufacture or market cigarettes, how research facilities, projects, and results are shared between the related companies. B&W's reliance on BAT's research department for portions of its s~king and health and additive research will probably be explored at this time. It is also likely that the existence of "INTERBAT" network between the B&W and BAT research departments will be revealed if plaintiffs aggressively pursue this llne of questioning. One interesting lane of q~estioning which plaintiffs have pursued in other depositions concerns the existence of insurance companies.as subsidiaries of tobacco compani.s. Plaintiffs will attempt to poz~ay an insurance company subsidiary's requirement of higher life i6surance premiums for smokers as an acknowledgment by -19- 29300;2067 293002067 Subject to Claims of Privilege and Confidentiality: Produced Pursuant to Court Orders in State of Minnesota, et al. v. Philip Morris, et al.

the tobacco, company that smoking cigarettes poses health risks. This are~ ~f inquiry may be pursued as a result of BAT's proposed acquisition OT Farmers' Insurance. P0ssibl~O~ions i. When was B&W formed? 2. Does B&W have a parent company? 2. What is the internal corporate structure of B&W? 3. Does B&W have a medical department? 4. Who is B&W's medical director? Does the medical director report to management on the s~king and health issue? 5. How do the various departments at B&W interact? 6. Does B&W's parent company manufacture or market cigarettes? 7. What control does B&W's parent company exercise over B&W's ~ operations? 8. D~es this parent company conduct smoking and health research for B&W or does B&W conduct research for the parent company? 9. Does B&W's parent company exercise any control over the types of research that are conducted by the B&W research department? i0. Does B&W have input into the selection of research projects by its parent company's research department? II. Do B&W's parent company and B&W share /esearch? How? 12. Does B&W have any subsidiaries? 13. Do any of these subsidiaries manufacture or market c~garettes? 14. Are any of these subsidiaries insurance companies? 15. Don't these insurance companies recognize that smokers are more of a risk than nonsmokers? -20- 2~930()~0G~ 293002068 Subject to Claims of Privilege and Confidentiality: Produced Pursuant to Court Orders in State of Minnesota, et al. v. Philip Morris, et al.

Suaaes~e~..~Donses B&W'~ relationship with BAT in the area of research is evidenqed by a series of research sharing and cost pooling agreemen. ~m 1958 to the present. These agreements have been collected-a~d should be reviewed before answering questions in this 2. Brown & Williamson's Position on the Smoking & H~alth Issue Upper level management representatives will be questioned at length whether B&W ever formulated an official corporate position on the smoking and health issue. Plaintiffs are particularly interested in whether B&W ever memorialized its corporate position on the smoking and health issue. The review of B&W documents for the Corporate Conduct Project indicates that B&W considered drafting a document containing B&W's official position on the smoking and health issue as early as 1967. A review of B&W's corporate minutes and the Corporate Conduct Project documents does not, however, indicate that such a position paper was ever actually adopted by B&W. B&W has prepared several publications containing its views in this area. B&W issued employee booklets entitled, "Tobaccoa Issues/Answers/Actions" which outlined B&W's position on smoking and health. B&W also prepared a booklet entitled, "The Smoking/Health Controversy: A View From the Other Side" in 1971 which apparently was circulated to local newspapers in Louisville. B&W also issued a pamphlet entitled, "Tobacco Issuesa Stating Your Case" to its salesmen to a~rd them in dealing with the -21- 293002069 293002069 Subject to Claims of Privilege and Confidentiality: Produced Pursuant to Court Orders in State of Minnesota, et al. v. Philip Morris, et al.

smoking an~[health issue while in the field. The documents reviewed for The Corporate Conduct Project also reveal that BAT periodically issued9ositi~n papers which included positions on the smoking and health i_ ~_~s~ Should any of these documents be produced to plainti~f~ b~fore the deposition of the B&W representative, plaintiffs wall inquire about positions takenin these publications. After plaintiffs have established B&W's position on smoking and health, plaintiffs will inquire about who for~ulated 8&W's position on smoking and health, what informatlom formed the basis for this position, and about the amount and intensity of the debate by B&W personnel over the adoption of this position. One difficult questio, which may be posed to the representative concerns whether B&W considers smokers contributorily negligent for their alleged injuries. The questions concerning this contributory negligence may precede questions about B&W's views on m~deration in the use of cigarettes. In this area, plaintiffs may inquire if the B&W representative thinks that cigarettes are dangerous only if smoked in excessive amounts and, if so, to identify a "safe" level of smoking. Possible Questions What is B&W's position on the s~king and health issue? 2. Has B&W's position on the smoking and health issue ever been memorialized in a document? 3. Who formulated B&W's position on the smoking and health issue? was this position voted on by the Board of Directors? 4. what are qualifications of the persons who adopted such a positign? 5. Did any ~hysicians or scientists play a role in the adoption of this policy? -22- 29300~070 293002070 Subject to Claims of Privilege and Confidentiality: Produced Pursuant to Court Orders in State of Minnesota, et al. v. Philip Morris, et al.

6. What.i~ the medical or scientific basis for B&W's position on the-~_-~ing and health issue? 7. Does S&w~onsider its smokers contributorily negligent for any disease which they may develop as the result of smoking? 8. Are ~i~ettes dangerous only if smoked in excessive amounts? 9. What-i~ a "safe" level of cigarette smoking? Suoaeste~ Response It is Brown & Williams's position that it has not been proven that smoking causes disease. Various studies have associated smoking with disease but these associations cannot establish cause and effect. These associations emphasize the need for continued research. B&W, individually and as a member of the tobacco industry, has contributed millions of dollars over the last three decades to find research on the smoki,g and health issue. Only this continued research can establish whether smoking causes disease. It is important to be aware of "traps" in questions concerning a smoker's contributory negligence and "safe" levels of smoking. If B&W were to accepn the position that smokers are contributorily negligent in choosing to smoke, then B&W may also be found negligent for the manufacture and sale of cigarettes. Similarly, if B&W were tO accept the position that these are "safe" levels of smoking, by implication Brown & Willlamson would be conceding that other levels of smoking are "unsafe" or "less safe." Answers to questions in this area should emphasize that whale the various studies associating smoking -23- Z9300Z071 293002071 Subject to Claims of Privilege and Confidentiality: Produced Pursuant to Court Orders in State of Minnesota, et al. v. Philip Morris, et al.

with disee~ have made the alleged hazards of smoking well known, it has not be~n scientifically established that smokinq causes disease. Individuals who choose to smoke with the knowledge of these alleged risks should be responsible for their own infoz~ned actions. 3. Plaintiffs" Attack on Brown & Williamson's Position on the SmQ. kinq and. Health Issu~ Plaintiffs will attempt to attack B&W's position denying a causal link between smoking and disease through a number of methods. First, plaintiffs will ask a series of questions attempting to elicit a concession that smoking is in so~e way associated with disease. This series of questions will begin with the question, "Does B&W contend' that smoking~ causesdisease?" The questlon, will then be rephrased with a slightly different degree of certainty in causation. For instance, the next question may be, "Does B&W contend that smoking may cause disease?" Then plaintiffs will ask, "Does B&W contend that smoking has been associated with disease at all?" After each question, plaintiffs will ask the representative if he is aware various specific studies which demonstrate that smoking causes, may cause, or is associated with disease. Studies which have been covered in depositions of representatives of other tobacco companies include studlss conducted by ~ Doll Haag Hammond and Horn Berkson Dorn and Bau~ Wynder FiSher Pearl Mc.~rthur Bing Dean Shimlan Tiswell Auerbauch Rigdon Framingham -24- 29300307~ 293002072 Subject to Claims of Privilege and Confidentiality: Produced Pursuant to Court Orders in State of Minnesota, et al. v. Philip Morris, et al.

Plalnti[f~ll_question the representative concerning B&W's acceptance of ~hese resaarch results, B&W's response to each of these 6tudies./particularly the Auerbacb studies), B&W's attempt to replicat~--_t-'~-studies, as well as the specific basis for B&W'S criticism of the studies. After questioning the representative at length about specific studies, plaintiffs will attempt to depic~ B&W's position rejecting the studies and denying an association or casual link between smoking and disease as unreasonable because these studies have been accepted by many reputable health organizations including: The American Medical Association The Canadian Medical Association The Royal College of Physicians in England The World Health Organization The International Agency for Research on Cancer The American College of Physicians The American College of Chest Physicians The American Heart Association The National Tuberculosis Association The American Lung Association The United States Surgeon General One of the more difficult questions which plaintiffs will ask concerns the amount and type of evidence which would compel B&W to accep~ that cigarettes cause disease. Plaintiffs will attempt to portray the representative's answer to this question as unreasonable because plaintiffs will attempt to show that B&W believes that it is not possible to produce conclusive evidence that cigarettes cause disease with present technology. Possi~,!e Ouestions I. WAll B&W admit that cigarettes are hazardous to the health of smokers~ . 2. Will B&W admit that cigarettes may be hazardous to the health - of smokes? -25- Z.~300~O, 3 293002073 Subject to Claims of Privilege and Confidentiality: Produced Pursuant to Court Orders in State of Minnesota, et al. v. Philip Morris, et al.

9 I0. 11. 12. 14. 15. 16. 17. 18. 19. 20. 21. Will=~W~Zadmit that smoking causes cancer? Cardiovascular disease? COPD? Will B&W ~dmit that smoking may cause cancer? Cardiovascular " disease? ..COPD? WiI~-B&W admit that smoking contributes to the cause of cance~? - Cardiovascular disease? COPD? Will B&W admit that smoking has been associated with cancer? Cardiovascular disease? COPD? Will B&W admit that a smoker who quits may improve his health? will B&W admit that smoking can cause problems with pregnancy? Have any of the above statements been proven? What does proven mean? Has B&W's posi6~on on smoking and health ever changed in any way? Who is responsible for changing or maintaining B&W's policy on smoking and health? How often is B&W's position on smoking and health reviewed? By whom? How have the various studies showing a link between smoking and human illness affected B&W's position on smoking and health? Has B&W analyzed each of these studies? Who analyzed these studies for B&W? What is wrong with these studies? Did B&W attempt to replicate these studies? Axen't the allegations against smoking more substantiated now than ever before? Are you aware that a large number of reputable health organizations have accepted these studies as valid? Name any-~ealth organization that does not believe that smoking causes disease. -26- 293002074 Subject to Claims of Privilege and Confidentiality: Produced Pursuant to Court Orders in State of Minnesota, et al. v. Philip Morris, et al.

22. Are y0~_ aware of the number of deaths the Surgeon General att~i~_d~es_to smoking? 23. Are you ~ware of the percentage of heart disease the Surgeon General ~ttributes to smoking? The percentage of lung c6ncer? ._COPD? 24. Ho~----~d~B&W respond to these charges? 25. What evidence would be sufficient to demonstrate a causal relationship between smoking and health? 26. Is it possible to generate such evidence with present technology? S~ooes%@d Response The employee should be wary of attempts by the examiner to rephrase and slightly alter the meaning of a question. Brown & Willlamson's position in response to any form of these questions is that smoking has not been proven to cause any disease. Because research has associated smoking with certain diseases, smoking m_~ be a risk factor in the development of a particular disease along with occupation, gender, geographic location, and urbanization. But association of a risk factor with a disease does not mean that smoking or any other risk factor cause% the disease. In response to questions that so many scientific and medical organizations have taken positions against smoking, the employee should point out that the controversy over smoking and health is a scientific issue which should be settled by scientific evidence, not by resolution. The fact that governmental bodies and scientific societies have passed such resolutions indicates that the controversy over smoking and health has become a political controversy.z Moreover, such resolutions may be counterproductive -27- Z9300~075 293002075 Subject to Claims of Privilege and Confidentiality: Produced Pursuant to Court Orders in State of Minnesota, et al. v. Philip Morris, et al.

thj~, may discourage research and funding in the smoking in that and health-field by fostering the misperception that ~he causes of these disease~ are known. Res~ns~.eto the questions concerning the sufficiency of evidence fiec~ssary to prove causation should focus on a number of different criteria. First, the evidence relating to causation should include epidemiologlcal evidence and biological evidence. The biological evidence should be the result of experiments investigating a well defined substance (i.e. whole smoke rather than condensate) with an appropriate, animal model (i.e. free of diseases which may mimic the subject disease.) The method of administration of the substance and the dose of the substance should be as close to the human experience as possible. The experiment should be a long term experiment to simulate the development of a chronic diseases. These should also be adequate control animals. Finally, results of the experiments should be verified by a pathologist, duplicated in another laboratory, and confirmed in another species. 4. Bro.w~ & Willlamson's Position On Youth Smokinq In a related area, plaintiffs will question the representative about B&W's position on youth smoking. Documents reviewed during the Corporate Conduct Project indicate that B&W's maintained a strict policy against selling cigarettes to persons under the-age of 21. Plaintiffs will try to show vlolations of this policy for several reasons. First, the age an individual begins smoking has legal imp1icatlons in the area of -28- ZgSOOZ076 293002076 Subject to Claims of Privilege and Confidentiality: Produced Pursuant to Court Orders in State of Minnesota, et al. v. Philip Morris, et al.

contribu~Qry negligence. If an individual begins smoking at an early ~g~&-he-may be presumed to be incapable of making an informed decision on ~ssuming the alleged risks of smoking. Second, advertising'~Irected at youth smoking may undercut the industry's positiS-~ that advertising was directed at brand preference rather than initiation of new smokers. Finally, B&W's marketing to minors in violation of B&W's own corporate policies will provide evidence to support plaintiffs" allegations of negligent marketing. Possible Questions I. What is B&W's position on youth smoking? 2. Why does B&W think that smoking Is an adult custom? 3. Why can't children make the decision to smoke or not? 4. Have you ever advertised cigarettes to minors? 5. Have you ever advertised cigarettes to college students? 6. Have you ever market tested youth smokers? Why? 7. what is the lowest age reported on market reports segmented for age? 8. Have you ever attempted to persuade youths not to smoke? Suqqested Response B&W maintains a strict policy against promoting cigarettes to persons under 21 years of age. The purpose of Brown & Williamson's advertislng is to establish brand loyalty, no~ to attract new smokers, whatever their ages. B&W b~lieves smoking is an adult custom. The decision to smoke should be a choice for the individual and that choice should be made only by infcr~ed adults. As-_a result, B&W's advertisements display no~odels under the age of ~5 years of age and use no celebrities or sports figures. -29- 293002077 293002077 Subject to Claims of Privilege and Confidentiality: Produced Pursuant to Court Orders in State of Minnesota, et al. v. Philip Morris, et al.

B&W has V0~9_.ntarily complied with the provisions of the Cigarette Advertisin~ ~od~ which prohibits advertising in college publications." 8&W has als0 taken steps to avoid promoting its products in f~-rums where children may be exposed to the advertisements, such as theatres. D. Brown & Will£amsoo's Aw~eness o~ the Allege~ Risks of Smokino Under Texas law, a manufacturer has a legal obligation to test its products and to be aware of any risks associated with their use in order to warn its consumers of those risks. A manufacturer is also deemed to be aware of (and obligated to warn its consumers about) any risks which an expert with "state of the art" knowledge in the smoking and health field would have discowered in his research and testing of cigarettes. Discovery concerning 8&W's awareness of the alleged risks of smoking is essential to plaintiffs' claims that B&W failed to adequately warn its smokers about those risks. Is determ£niRg whether B&W adequately warned its consumers of the alleged risks of smoking, plaintiffs will question the representative about research conducted or funded by B&W in the smoking and health field and about B~W's efforts to acquire "state of the art" knowledge by gathering, maintaining, and reviewing the scientific and medical literature on the smoking and health issue. various reference materials have beer complied to assist in the answering of questions concerning B&W's research efforts. Included in ~hese reference documents are chronologies on evidence -30- Z9300Z07S 293002078 Subject to Claims of Privilege and Confidentiality: Produced Pursuant to Court Orders in State of Minnesota, et al. v. Philip Morris, et al.

in the lite~rature associating smoking with disease; chronologies of B&W's sm6kin~ a,d health research; chronologies of smoking and health researCh funded by B&W and BAT; and chronologies of B&W's efforts to st~ abreast of the literature on smoking and health. These reference materials should be reviewed as necessary in preparation for responding to questions in this area. I. Background Information on the Brown & Williamson Research and ~veloDment Department Plaintiffs' inquiry about S&W's smoking and health research will initially concer, the history, size, and structure of B&W's research and development department. Plaintiffs will seek background information abo~t the qualifications of the research and development department's director and staff and about the director0s duties and powers as department head. Plaintiffs are particularly interested in the relationship of the research and development department with management, with the legal department, and with the advertising and marketing department. Specifically, plaintiffs will inquire whether management and the legal department placed any direct or indirect constraints on the selection of research projects or the publication of the department's research results. As a result, B&W's policy on the publication of research results will be explored in depth. Also, plaintiffs are interested in whether there was a free flow of information between the research and development department and the marketimg.and advertising department. These questions are designed to determine Whether B&W had the adequate intracompany communication -31- 293002079 Subject to Claims of Privilege and Confidentiality: Produced Pursuant to Court Orders in State of Minnesota, et al. v. Philip Morris, et al.

necessary.re enable its employees to fulfill B&W's legal obligation to keep £h~ ~ubiic adequately informed about research findings concerning th6 alleged risks of smoking. Plaintiffs have also shown an interest in learning about presentations made by members of the B&W research department at various industry research conferences. Plaintiffs may also ask about conferences conducted solely among B&W and/or BAT research and development personnel. Is this area, plaintiffs will attempt to discover if there was any debate at such conferences by tobacco company research personnel concerning the industry's denial of causal relationship between smoking and disease. A chronology of BAT Group conferences has been compiled and should be reviewed if necessary. Plaintiffs will also attempt to discover B&W's annual expenditures for research in the smoking and health area. When discovered, plaintiffs will compare the annual research expenditure to the annual advertising expenditure in an attempt to show that B&W was more interested in profits than product safety. Possible Ouestions I. How is B&W fulfilling its research commitment on the smoking and health issue? 2. When was B&W's research and development department established? 3. where is 8&W's research and development department located? 4. whem did 8&W begin research on the smoking and health issue? 5. How large is B&W's research and development department? Mow is the depart~e,t broken down (i.e., product development, smoking a~4 health research, etc.)? 7. Who is the director of research? -32- 293002080 Subject to Claims of Privilege and Confidentiality: Produced Pursuant to Court Orders in State of Minnesota, et al. v. Philip Morris, et al.

8. WhatnOts the director's qualifications? 9. Mow-a~eresearch projects selected? What rol~ did management play in the selection of research projects? II. 12. 13. 14. 15. 16. 17. Wha~T~ did the legal department play in the selection of research projects? How was management kept informed of research developments? Were research results routinely or formally presented to management? How often did these presentations occur? What was management's response? How was the legal department kept informed of research developments in the smoking and health field? How was the advertising department kept informed of research developments in the smoking and health field? How were other employees kept informed of developments in the smoking and health field? Were conferences held among scientists of the various tobacco companies to share research findings on the smoking and health issue? 18. Were forums held to allow B&W employees to voice their opinions on the smoking and health issue? 19. What is B&W's policy on publication of research on smoking and health? 20. what role did the legal department play in the distribution and publication of research findings? 21. 22. Name specific articles on the smoking and health issue authored by B&W employees which have been published. What is B&W'S annual expenditure on smoking and health research? 23. How does this compare with B&W's annual expenditure on advertising? The Nature o£ Smoking and Health Research .Conducted by Brown & williamso~ Plai~n~iffe have alleged that B&W and the other cigarette manufacturers failed to conduct the proper research in the smoking -33- 29300Z0Sl 293002081 Subject to Claims of Privilege and Confidentiality: Produced Pursuant to Court Orders in State of Minnesota, et al. v. Philip Morris, et al.

and health=field. They contend that research conducted at B&W and other to~c~ ~ompanies was heavily focused on product development {and profits)~rather than on the health consequences of smoking (and product safety-). In order to support these allegations, plaintiffs will attempt to identify specific areas of smoking and health research conducted by the B&W research and development department. Reference to the chronology of 8town & Williamson smoking and health research will aid £n preparation of this testimony. a. Animal Testing Plaintiffs will rely on various toxicity tests performed on animals to demonstrate the alleged causal relationship between smoking and disease. The tobacco industry has attacked these studies claiming that the results of tests performed on animals are not translatable to humans. Plaintiffs will attempt to attack this position by attempting to show that the industry conducted anima| testing itself and modified its products as the result of th~se tests. ~n a related area, plaintiffs may inquire about the Delaney/~nendment. The Delaney/~endment prohibits the marketing of any new product which has been shown to produce any cancer in toxicity studies conducted on animals. Some of the tobacco companies unsuccessfully opposed the enactment of the Pelaney Amendment through testimony in Congressional hearings. Possible Questions I. Has B&W ever conducted or funded animal testing in the smoking and--health field? When? 2, What type 6f animal testing did B&W conduct or fund? Inhalation studies? Mouse skin painting? -34- 29300~082 293002082 Subject to Claims of Privilege and Confidentiality: Produced Pursuant to Court Orders in State of Minnesota, et al. v. Philip Morris, et al.

3. Have ~sults from these animal tests ever shown that smo~'.1~g~c~uses or may cause chronic disease in animals? were theme results published? 5. Has B&W ever tried to replicate animal testing which has show,'that smoking causes or is associated with ch_.r~isease in animals? 6. Did B&W attempt to replicate the Auerbach "smoking beagles" studies? Why? 7. How did B&W respond to the "smoking beagles" studies? 8. Has B&W discontinued its animal testing? When? why? 9. Isn't animal testing an accepted method of experimentation on foods, drugs, pesticides, and additives? I0. what should a reasonable scientist do if he discovers that a product causes disease in animal testing? If. Would any animal model be acceptable for smoking ~nd health research? 12. Did B&W oppose the Delaney Amendment? Why? b. Fractlonel~zatlon Fractional£zation is the isolation and identification of the various components in cigarette smoke. Plaintiffs will attempt to determine whether B&W has conducted fractionalization to identify any established or suspected carcinogen, tumor initiator, or tumor promoter in cigarette smoke. If these studies did identify such substances in ci~aEette smoke, plaintiffs will inquire about B&W's response to such studies. Specific substances which the representative may be questioned about include benzopyrene, arsenic, polonium, nitrosamlnes, nickel compounds, and carbon monoxide. Possible Questio~ 1. Has B&W ~nducted fractionalization studies? 2. When didthese fractionalization studies begin? -35- ~9300~0S3 293002083 Subject to Claims of Privilege and Confidentiality: Produced Pursuant to Court Orders in State of Minnesota, et al. v. Philip Morris, et al.

3. Did tLeSe studies identify the presence of any established or susp~C~d~carcinogens, cocarcinogens, tumor initiators, or tu~r promoters in cigarette smoke? Which substances? 4. How did ~&W respond to the identification of these substances i~ clgar.e~te smoke? 5. Ho~were the results of these studies used? Were they published? Circulated to management? Given to other departments at B&W? 6. Does B&W have specifications for particular components in cigarette smoke? 7. who established these specificatio,s? How weze the specification levels chosen? 8. Is it B&W's policy to keep the levels of allegedly hazardous substances as low as possible within acceptable flavor and taste ranges? c. Filtrat£o~ studies Plaintiffs will attempt to discover if B&W conducted studies to determine if filters could eliminate reported or suspected carcinogens, cocarcinogens, tumor initiators, or tumor promoters in c£gareute smoke which had been identified in fractionallzation studies. Plaintiffs will attempt to demonstrate that the development and marketing of low tar/low nicotine and filter cigarettes was a tacit admission by B&W that its cigarettes contain dangerous substances. Plaintiffs' discovery in this area may focus upon any attempts by B&W to produce a "safer" cigarette (such as the palladium filter project at Liggett) or upon attempts to produce a cigarette which would not be subject to criticisms made by anti-smoking groups. Sensitive subjects within this area would include Project Rio. -36- 93002084 29300~084 Subject to Claims of Privilege and Confidentiality: Produced Pursuant to Court Orders in State of Minnesota, et al. v. Philip Morris, et al.

~ossible .Q~estio~ Wh~n-~i~ B&W first market filter cigarettes? 2. Why were~_ filter cigarettes marketed? 3. Didn't ~ introduce filters because of health concerns? 4. ~o' B&w~s filters remove suspected dlsease-causing agents (including tar, carbon monoxide, and nicotine, and phenols) from cigarette smoke? 5. Why did R&W want to remove these substances? 6. Who makes the filters for B&W cigarettes? 7. Does B&W use different filters for different cigarettes? Why? 8. Does B&W market nonfilter cigarettes? Why? 9. Does B&W advertise nonfilter cigarettes? Why? I0. When was the last time B&W introduced a successful nonfilter cigarette? II. Are nonfilter cigarettes just as safe as filter cigarettes? 12. Aren't health concerns the reason filter cigarettes are more successful than nonfilters? 13. Has B&W ever attempted to manufacture a "safer" cigarette? 14. When did B&W learn of the "palladium" filter? 15. Did B&W ever attempt to construct and test a palladium filter? 16. What was B&W's response to the "palladium" filter? 17. Did B&W ever modify its cigarettes in response to allegations by anti-smoking groups? When? Sua~ested Response B&W and the other cigarette maRufacturers have produced filtered~ low tar, and low nicotine cigarettes only in response to consumer demand for those products. Sales of these cigarettes have rapidly become a significant portion of the total cigarette market. -37- 9300 d0S5 293002085 Subject to Claims of Privilege and Confidentiality: Produced Pursuant to Court Orders in State of Minnesota, et al. v. Philip Morris, et al.

This rapi~-_-shift shows B&W's response to their customer's changing preferenc~ for these produces. ~The demand for such products Is but another aspect of today's consumer's preference for ~lighter" product~e._~ "light" beer, wine cooler, "light" foods, etc.). d. Additive Testing Plaintiffs have shown special interest in the testing of additives used in the manufacture of cigarettes for several reasons. First, evidence that the cigarette companies added substances with unknown or suspected toxic properties withou~ prior testing would support plaintiffs' negligent testing and marketing and punitive damages claims. AlSo, the "adulteration" of "good tobacco" with additives during their manufacture may support plaintiffs' claim that the exemption from strict liability for "good tobacco" under Comment i of $ 402 A of the Restatement ($econd].O~ Torts should not apply to cigarettes with additives. The a11eged additives which plaintiffs are interested in to support such claims include coumarin, eugenol, cocoa, croton oil, glycerol, and asbestos. Documents reviewed during the Corporate Conduct Project suggested that B&W relied on BAT for the bulk of its additive testi~g. In recent years, the documents suggest that B&W may also have employed outside consultants or toxicologists to test its additives. Discovery concerning B&W's early efforts in additive testing may focus on this extracompany research. -B&W has had an Additive Guidance Panel made up of personnel which has approved the use of additives in its cigarettes since the early 1980"s. BAT has had an Additive Guidance Panel for -38- 293002086 Subject to Claims of Privilege and Confidentiality: Produced Pursuant to Court Orders in State of Minnesota, et al. v. Philip Morris, et al.

many years~<prior to that. The policy which B&W's Additive Guidance Pan@l em~fb)' £n approving additives for S&W's curre.t cigarettes is$ To be used as a casing or flavoring in a,y of B&W :TC~-garette products, an ingredient shall meet one of the -following criteria= I) 2) the ingredient a) has been used in cigarettes for many years; or b) is found in tobacco or tobacco smoke, and its additives to cigarettes is deemed reasonable by the Additives Guidance Panel; the ingredient in GRAS (generally regarded as safe) as defined by at least one of the following authorltiesz 3) a) Title 21 of the Code of Federal Regulations; o~ b) Flavor and E~tract Manufacturers AssOciation the ingredient has been reviewed by certified toxicologists or other appropriate professionals found its addition to cigarettes to be reasonable. Plaintiffs will attempt to discover any breaches of this company policy to support their claims of negligent ~esting and marketing. Possible O~estions i. How does B&W guarantee the safety of any additives used in its products? 2. Who tests the additives used in B&W cigarettes? 3. How long has this testing procedure been in effect? 4. Has the testing of additives ever shown that animals exposed to any additive develop chronic disease? 5. How is management kept informed of the safety of additives? 6. Who make the final approval of the use of an additive in B&W cigarettes? What are their qualifications to make such a decision~ 7. What role ~oes management play in approval of additives? -39- Z9300~087 293002087 Subject to Claims of Privilege and Confidentiality: Produced Pursuant to Court Orders in State of Minnesota, et al. v. Philip Morris, et al.

8. Have.~nM additives ever been removed from B&W cigarettes f0~a£ety reasons? When? 9. Do B&W c~garettes contain coumarin? Eugenol? Croton Oil? Glycerol7 Cocoa? Asbestos? I0. HaM~-&~eae materials been specifically tested to determine th~ ~afety for use in cigarettes? 3. Smoking and Health Research Conducted for Brown & Williamson by Others B&W and BAT entered into research contracts with several independent laboratories, including the Battelle Institute in Frankfurt (e._~, the JANUS and HILTON series) and A. D. Little Laboratories (~_=g~, the cilia transport test) for research projects in the smoking and health field. B&W also supported smoking and health research by providing grants to various research emtitieso A complete listing of these studies is found in the chronology of B&W funded projects. Plaintiffs are interested in whether any of these projects yielded results contrary to B&W's position on smoking and health, whether B&W ever published any of these results, or whether B&W responded in any way to such studies. Possible Ouestions Has B&W ever contracted for research in the smoking and health field with an independent research laboratory? 2. With whom? When? What was the subject of this research? 3. How was the laboratory selected? 4. Why did B&W contract for outside research? Because its own research facilities were inadequate? 5. Has this independent research ever shown that smoking causes or IS associated with disease? 6. Were the~e results published? Why? 7. Has B&W ever funded research in the smoking and health field -by an independent laboratory other than through CTR? -40- d9300 0SS 293002088 Subject to Claims of Privilege and Confidentiality: Produced Pursuant to Court Orders in State of Minnesota, et al. v. Philip Morris, et al.

8. Wit~~h~m?. when? what was the subject of this research? 9. How was .~he laboratory selected? i0. Has this__funded research ever shown that sn~oking causes or is associated with chronic disease? 11. Were-these results published? Why? 4. Brown & Williamson's Efforts to Stay Abreast of the Smokinq and Health Rgsearch Plaintiffs are particularly interested in how B&W monitored and responded to the scientific literature on smoking and health. Interviews with B&W personnel indicate that during certain periods of time, one employee was in charge of gathering, maintaining, reviewing, and summarizing the literature on the smoking and health issue and preparing a newsletter on this topic for distribution so that other B&W employees could stay abreast of the literature in this area. B&W also subscribed to at least one abstracting service which was responsible for keeping certain B&W employees informed of significant developments in this field. Plaintiffs will attempt to determine how B&W utilized this collected information to inform its employees of these developments. Possible Questions I. What B&W employee is in charge of gathering, maintalni,g, and reviewing smoking and health literature? 2. What sources of information does B&W monitor? How is management kept informed of developments in the scientific literature? 4. How are other personnel kept informed of developments in the scientific literature? 5. Is this material routed? To whom? -41- Z9300ZOSB 293002.089 Subject to Claims of Privilege and Confidentiality: Produced Pursuant to Court Orders in State of Minnesota, et al. v. Philip Morris, et al.

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