Thursday, 2 May 2013

Day 140: Justice Riordan preserves the "Destroyed Documents"

The third and last day of the mid-trial defence motions was relaxed compared with the first days' intense discussion about whether or not the plaintiffs had failed to produce enough proof  to allow the trial to continue.

The three items on the agenda were clearly important to the case -- but didn't have quite the existential threat as the 'motions to dismiss' which had been debated earlier.

"It's premature to impose time limits"

The first item up were representations by the companies as to why Justice Riordan should not impose time limits on the defence trial. (On April 11, after seeing their list of witnesses grow, he had threatened to hold the companies to (only!) 175 days to present their case.)

Each of the companies maintained that any such limits would be unfair, and that there were no indications yet that they were required.

Suzanne Coté, for BAT/Imperial Tobacco, led off and laid the groundwork of precedents and legal authorities for the combined defence.

She pointed out that the defendants' intention to take a long time to set their case had been acknowledged by Justice Riordan in an 2009 decision where he had cited the length of the trial as a reason to not postpone issues while Quebec's Bill 43 was under legal challenge. (This law sets the rules for a government lawsuit, but also affects the limitation periods on class actions. Three years after the passage of the law, the industry challenge has not yet got to trial).

She cited legal texts on the role of the judge and other 'authorities'.  "It is premature to make a decision – if you see in the course of the case that we are abusing time, you will have the power then to intervene and to decide how to manage the trial. To decide in advance that we are restricted would not respect our right to a full and fair defence."

Moreover, she said, he had an obligation to manage the trial in a way that did not prejudice their case, and he was not yet in a position to evaluate whether or not a time restriction would have that effect.

She pointed out that the plaintiffs had not been restricted.  "They were the master of their own evidence, and we have the right to also be master of our evidence."

Simon Potter, for PMI/Rothmans, Benson and Hedges made essentially the same pitch, but based his reasoning by pointing his finger at the "barrage" of documents "filed without witnesses" that would "take some time" for the companies to respond to.

He reminded the judge that to date the defendants had not used an excessive amount of court time. "It is not possible to say that the defendants have dragged out the plaintiffs case – we have been efficient with cross examination."  He urged the judge to agree that the "reasonable thing is not to impose limits on the defence but to wait to see if there is some kind of excess or exaggeration on our side which needs policing." 

Guy Pratte, for JTI-Macdonald, pointed out that the plaintiffs case had grown from its originally scheduled 87 days to more than 130, and that 10 new witnesses had been added to the schedule after their formal notification of their case structure. "That's the way the world works," he conceded. "We are all experienced advocates. Trying the patience of the court is not to our advantage, but sometimes it is necessary."

And as for the class members?

Justice Riordan focused on the question of the 60 days of trial that had been identified to interrogate members of the two classes (i.e. addicted smokers or those with lung cancer, etc). He asked whether more than 1 day per class member was really necessary. Maybe not, Suzanne Coté conceded - "we estimate 60 days, but it might take 40 or 45 or even less."

But it was not only the length of time for these witnesses that concerned the judge. He also raised the likelihood that his rulings during this phase might trigger appeals to a higher court - and that putting these contentious issues at the end of the trial might stall the trial reaching the finishing line. He suggested that he had contemplated addressing this in any order he might make about the trial schedule.

Suzanne Coté sounded willing to accommodate this. "We can consider it," she said. "We have always acted reasonably - even though our opponents think the opposite."

Simon Potter, however, quickly intervened. "I object to taking so big a chunk that was left as a maybe or a possible and bringing it up. I am registering an objection."  (Imperial Tobacco is the only company that has indicated that it wants to examine class members at length).

There may have been a telling bit of body language when Mr. Potter hinted that the ruling on the motions to dismiss all or some of the case could affect the length of trial. The judge was looking at him intently as Simon Potter suggested "It may be that the judgement you rule will shorten the list." At that point Justice Riordan dropped his eyes to his desk and looked away.

The biggest concern expressed by the plaintiffs was the skinny schedule for the months of May and June. They estimate that there is room for up to 10 witnesses before the summer break, but the companies have only indicated they will call 4.

Destroyed Documents - still in

The reason why the trial schedule had been discussed ahead of the other motions was soon made clear. Simon Potter made more noise than usual about having to leave the court -- thus putting on the transcript that he would be absent from the court during discussion of the policy of Imperial Tobacco to systematically ship out its incriminating scientific files which he helped implement.

The reason this issue was under discussion was because Imperial Tobacco wanted Justice Riordan to knock this issue out of the trial.

Ms. Glendinning offered Justice Riordan many reasons why this saga was irrelevant to the trial. It had not been included in the original claims, nor during the certification of the class action. There was no question of illegal behaviour, as Imperial Tobacco was not contemplating any litigation at the time. There are no legal requirements on companies to maintain records. The documents were all recovered and are all on the trial record, so there is no consequence to this trial. Etc. etc.

To expect Imperial to have kept these documents, or to infer wrongdoing from their destruction would change the law, she said. "The rules would morph into something that says that every single company which manufactures a product has an obligation to keep their records forever just in case someday there is a lawsuit."

She cited the testimony of Lyndon Barnes that the destruction had been done under the direction of the head scientist (the late Patrick Dunn)."That’s the evidence. They were destroyed because they were not needed."

Letting this story stay in the trial " leads us down a garden path," she said as "we have to call back a bunch of witnesses to reconfirm that there wasn’t litigation contemplated."  She threatened to put Justice Riordan in the position of allowing a lawyer in the case testify. "Are we going to [have to] call Mr. Potter?"

"There is no evidence. No legal authority. No purpose" to these documents, she concluded.

André Lespérance responded to the suggestion by pointing out the number of times that Justice Riordan had been asked to reject evidence related to document destruction and the number of time he had ruled they were relevant to "support claims for punitive damages."

He cited some of the more colourful documents that trace the desire of lawyers to get rid of the scientific files (Exhibit 1467.2), and the reluctance of scientists to comply (Exhibit 102).

Justice Riordan asked the plaintiffs to make perfectly clear that they were not arguing spoliation. André Lespérance confirmed - at least twice - that the purpose of this evidence was only to support claims for punitive damages, and that they were not claiming spoliation.

Deborah Glendinning may not have chosen to rebut this in the most effective way. "There is not a case that the plaintiffs can point you to in this country - let alone in this province -- that the court has said that document destruction is relevant to punitive damages."  

Justice Riordan did not let this pass. "I have said it several times," he reminded her.
Of all the questions raised this week, this was the only issue to which he gave an immediate ruling.

"I am dismissing this part of your motion. I am not going to rule that this is not part of the case. I have already said it four or five times."

Some lawyers might have sat down at that point, but not Ms. Glendenning. In an increasingly shrill tone, she continued to register her objections. "This [Exhibit 1437.2] is not an Imperial document!" "How can it be relevant to Imperial!? They weren't even a wholly-owned subsidiary!"

Justice Riordan pointedly turned his head.  "What's next?"

Please fence them in!

The last issue to be discussed this week was the proposal by Imperial Tobacco to have requirements put on the plaintiffs' use of evidence. These seek, among other things, to require the plaintiffs to identify documents and sections of documents they will be relying on in their final arguments, and to restrict them to these sections. It also asked to curtail the use of documents for which parliamentary privilege has been cited.

The lawyer presenting this request, Mr. George Hendy, has the most genial manner of the Imperial team. One of the older lawyers, and with lots of experience in Montreal courts, he takes a more relaxed approach with Justice Riordan. It seems to work for him.

He said that the trial would move much faster if the defendants knew which documents or sections of documents they needed to focus on. "It's something they have to do anyway – they can do it over the summer. ... They should do it before we get into our defense to any significant degree so we know what their case is going to be."

Mr. Pierre Boivin, in a similarly laid-back way, set out the reasons that the plaintiffs were unwilling to tie their hands in the way they were suggested. He provided a lengthy and detailed response to the requirements that were being sought. For the most part, his concern was that "They are asking for commitment we are not in a position to make," he said. "It goes too far."

Hansard's out?

One issue on which no one seemed to agree was the nature of parliamentary privilege.

The defendants have said that any document related to a parliamentary appearance should be privileged - including reports of internal meetings to plan such appearances. The plaintiffs have said that if a statement said in parliament is repeated outside, then it is not given privileged treatment.

Justice Riordan never ruled on the arguments on parliamentary privilege that were made earlier in the trial. Instead he circulated a letter to the lawyers explaining this decision. The letter, dated November 6, was referred to in court today, but has not been distributed publicly.

Today Justice Riordan offered his own take on the limits of parliamentary statements in litigation. He said that the repetition of a statement is admissible, but that the original Hansard cannot be evidence. I suspect this issue will continue to be refined!

Decisions, decisions ..

Justice Riordan earlier indicated that he would issue his rulings on the pre-defence motions next week. Stay tuned!

On May 13th, the second phase of this trial will begin when the companies present their first witness, historian Jacques Lacoursière.