• Background
• Basis for Relief
• Request for Relief

MAGISTRATE JUDGE: WENDELL C. RADFORD

THE STATE OF TEXAS’ MOTION TO COMPEL DISCLOSURE OF

INGREDIENT, FORMULA AND MANUFACTURING PROCESSES

Plaintiff, the State of Texas, respectfully requests this Court compel Defendants [ All Defendants except B.A.T. Industries, P.L.C.] to disclose the ingredients, formulas and manufacturing processes for their cigarettes and other tobacco products. The Eastern District Plan and at least two orders from this Court require disclosure of this information.

Background

The State of Texas filed its original complaint against Defendants on March 28, 1996. In its complaint, the State alleged, in part, that Defendants’ products were defective and unreasonably dangerous and that Defendants "have deliberately added numerous dangerous substances to their cigarettes . . .." (First Amended Complaint, Para. 256 at 111).

This Court thereafter ordered that Defendants disclose all documents and things that are likely to bear significantly on any claim or defense in this case by June 5, 1996. Given the State’s allegations concerning the ingredients and additives of Defendants’ products, one might reasonably expect that Defendants would produce information about the ingredients and additives for their products for the pertinent time period. They did not.

On December 18, 1996, counsel for the State sent a letter to Defendants’ Administrative Liaison Counsel advising him of Defendants failure in this regard. A copy of this letter is attached as Exhibit 1. Defendants’ Liaison Counsel replied, without substance, refusing disclosure (See attached Exhibit 2).

Undaunted, the State served Defendants [ All Defendants except B.A.T. Industries, P.L.C.] the following requests for production on December 24, 1996:

1. All documents sufficient for the State to identify all (1) specifications, (2) ingredients, (3) formulas, and (4) smoke constituents for each brand of cigarettes marketed in Texas by Defendants, and their corporate affiliates, for the time period January 1, 1954, to the present.

1. All documents to which Defendants have referred to as "the ingredients in and the formulas for manufacturing Defendants’ cigarettes" [ Defendants’ Memorandum in Support of Their Motion for Protective Order Governing Disclosure of Ingredient and Formula Trade Secret Information at 1-2.] for the time period January 1, 1954, to the present.

1. All documents sufficient for the State to identify all manufacturing processes for each of Defendants’ products, by brand, marketed in Texas by Defendants, and their corporate affiliates, for the time period January 1, 1954, to the present.

Defendants objected to each and every request and failed to produce even a single sheet of paper or one iota of information.

Basis for Relief

The State of Texas respectfully requests that this Honorable Court order Defendants to provide all responsive documents to the above cited requests, as well as order disclosure of all other documents and information which bears significantly on the State’s claims. Defendants cannot credibly argue that the requested documents do not bear significantly on the claims and defenses in this case.

Defendants had two choices with respect to the requested documents. First, Defendants could (and should) have produced the documents. Second, if Defendants claimed some privilege, they could (and should) have produced a privilege log identifying relevant documents and the basis for any claimed privilege. [ Judge Folsom ordered that "[p]rivileged documents or information shall be identified and the basis for the claimed privilege … disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection." (January 3, 1997, Order Modifying Magistrates Discovery Order).]

Preferring to stall legitimate disclosures in this case, Defendants chose neither of the only viable choices and have produced not one responsive document or a privilege log. Simply put, these documents should have been produced by June 5, 1996, the original disclosure date ordered by the Court.

Defendants’ failure to disclose the documents seriously handicaps the State’s position in this case. For example, Defendants presently seek dismissal of counts 4 through 14 partially on the basis that their products are "inherently dangerous" pursuant to Tex. Civ. Prac. & Rem. Code § 82.004. However, adulterated and impure products such as those produced by Defendants do not fall within the purview of § 82.004. [ Not surprisingly, Defendants claim otherwise. However, it is indisputable that the State of Texas’ jurisprudence has not adopted Defendants’ desired interpretation.] Thus, Defendants seek dismissal of the State’s claims while at the same time withholding important evidence directly on point. The State respectfully suggests that this Court should not sanction Defendants’ tactic of "hide the ball."

In compliance with Case Management Order ¶ 20, counsel for Plaintiff conferred with opposing counsel on the subject of this Motion by letter dated December 18, 1996. Unfortunately, no agreement was reached. A copy of the conference letter is attached for the Court’s convenience as Exhibit 1.

The State is mindful that it agreed, effective January 15, 1997, for the Defendants to defer disclosure of "highly confidential" information pending the Court’s consideration of Defendants’ motion to revise the Confidentiality Order presently in place. [ Order signed by Judge Folsom dated January 15, 1997.] Defendants have, however, demonstrated a strong propensity to delay disclosure of this and other important information.

Given this fact, the State files this Motion so that when the Confidentiality Order issue is resolved by Judge Folsom, an order requiring disclosure of the requested information within a certain number of days will be in place and Defendants can occasion no further delay.

Request for Relief

For the foregoing reasons, Plaintiff, the State of Texas, respectfully requests the Court to order Defendants to produce the requested information and documents.

Respectfully submitted:

DAN MORALES

Attorney General of Texas

Texas Bar No.: 14417450

JORGE VEGA

First Assistant Attorney General

Texas Bar No.: 20533800

JAVIER AGUILAR

Special Assistant Attorney General

Texas Bar No.: 00936300

TOM PERKINS

Chief, Consumer Protection Division

Texas Bar No.: 15790850

HARRY G. POTTER III

Special Assistant Attorney General

Texas Bar No.: 16175300

P.O. Box 12548

Capitol Station

Austin, Texas 78711-2548

512.463.2191

512.463.2063 Fax

JOHN M. O’QUINN, P.C.

440 Louisiana St., Suite 2300

Houston, Texas 77002

713.223.1000

713.222.6903 Fax

Texas Bar No.: 15296000

JOHN EDDIE WILLIAMS JR.

8441 Gulf Freeway, Suite 600

Houston, Texas 77017

713.649.6464

713.943.6226 Fax

Texas Bar No.: 21600300

WAYNE REAUD

REAUD, MORGAN & QUINN, INC.

801Laurel

Beaumont, Texas 77701

409.838.1000

409.833.8236 Fax

Texas Bar No.: 16642500

HAROLD W. NIX

NIX LAW FIRM

205 Linda Drive

P. O. Box 679

Daingerfield, Texas 75638

903.645.7333

903.645.5389 Fax

Texas Bar No.: 15041000

HUGH E. MCNEELY, of Counsel for

Provost & Umphrey Law Firm, L.L.P.

2901 Turtle Creek Drive, Suite 201

Port Arthur, Texas 77642

409.727.0800

409.727.7671 Fax

Louisiana Bar No.: 10,628

GRANT KAISER

JOHN T. MORRISON

KAISER & MORRISON, P.C.

Suite 1440 Lyric Centre

440 Louisiana Street

Houston, Texas 77002-1634

713.223.0000

713.223.440 Fax

State Bar No.: 11078900

____________________________

WALTER UMPHREY, P.C. [ By Grant Kaiser, with permission.]

490 Park

P. O. Box 4905

Beaumont, Texas 77074

409.835.6000

409.838.8888 Fax

Texas Bar No.: 20380000

ATTORNEY-IN-CHARGE

CERTIFICATE OF SERVICE

I hereby certify compliance with Fed. R. Civ. P. 5 and Case Management Order of November 5, 1996, that a true a correct copy of the foregoing document and diskette has been sent by overnight delivery service and filed on Thursday, March 13, 1997, to the following:

Administrative Liaison Counsel for All Defendants:

Howard Waldrop

Atchley, Russell, Waldrop & Hlavinka, L.L.P.

1710 Moores Lane

P. O. Box 5517

Texarkana, TX 75505-5517

903.792.8246

903.792.5801 Fax

Respectfully submitted,

_________________________

Grant Kaiser

MAGISTRATE JUDGE: WENDELL C. RADFORD

ORDER COMPELLING DISCLOSURE OF

INGREDIENT, FORMULA AND MANUFACTURING PROCESSES

The Court considered plaintiff’s Motion to Compel Disclosure of Ingredient, Formula and Manufacturing Processes today. After considering all filings related to this motion, arguments, if any, of counsel and applicable law, the Court is of the opinion the Motion should be granted.

IT IS THEREFORE ORDERED that all Defendants, except B.A.T. Industries, P.L.C., produce to Plaintiff the following:

1. All documents sufficient for the State to identify all (1) specifications, (2) ingredients, (3) formulas, and (4) smoke constituents for each brand of cigarettes marketed in Texas by Defendants, and their corporate affiliates, from 1954 to the present.

1. All documents to which Defendants have referred to as "the ingredients in and the formulas for manufacturing Defendants’ cigarettes." [ Defendants’ Memorandum in Support of Their Motion for Protective Order Governing Disclosure of Ingredient and Formula Trade Secret Information at 1-2.]

1. All documents sufficient for the State to identify all manufacturing processes for each of Defendants’ products, by brand, marketed in Texas by Defendants, and their corporate affiliates, from 1954 to the present.

SIGNED THIS DAY OF , 1997.

__________________________________________

MAGISTRATE JUDGE WENDELL C. RADFORD

UNITED STATES DISTRICT COURT

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