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Lovells litigation partner Andrew Foyle is set to face questioning over five key areas of British American Tobacco’s [BAT] document destruction policy, after losing an appeal against an order forcing the lawyer to give evidence in a huge US tobacco litigation.
In the case of the United States v Philip Morris and others, the US Government is alleging that since 1953 the tobacco companies have engaged in trying to deceive and defraud the American public about health risks of smoking.
Foyle has been asked to give evidence because he advised various BAT companies including BATCo and Brown & Williamson, two of the co-defendants, on its document retention policy.
It is an important part of the US case that the tobacco companies allegedly took active steps to ensure that documents which they thought might damage them in any litigation were destroyed or suppressed to ensure that they could not be disclosed.
In particular there are five main categories on which Foyle’s evidence was sought.
These are: the creation of the document management policy; the implementation of the document management policy; rules and procedures set forth by the document management policy; destruction of smoking and health documents that pertain to BATCo’s and Brown & Williamson’s litigation position; transportation, routing, storage and warehousing of documents.
Foyle appealed the original order on the grounds of legal privilege.
In a statement BAT said: “BAT Co is disappointed with the decision of the Court of Appeal, in failing to reverse the lower courts findings in relation to its legal professional privilege, which the Court of Appeal itself acknowledged to be a basic human right.”
However the ruling does not mean that Foyle will necessarily have to provide evidence the US Government is seeking since he will still be able to assert legal privilege in relation to particular questions.
“BAT Co will, in accordance with the December judgement of Mr Justice Moore-Bick, assert its privilege during the course of the examination of Mr Foyle, “ the statement added.
The judge made it clear the Court of Appeal was not concerned with any issues relating to allegations of crime-fraud originally made against Foyle in the initial US letter of request. The US Government has also made it clear that it does not intend to bring civil proceedings against him.