Lovells’ BAT letter to remain confidential

Lovells litigation partner Andrew Foyle received a reprieve last week after a US appeal court ruled that British American Tobacco (BAT) did not have to hand over a potentially damning internal memo written by Foyle.

The decision by the Washington DC Court of Appeals overturned an earlier order from Judge Gladys Kessler, who is hearing the $280bn (£152.45bn) US tobacco lawsuitagainst cigarette makers, the United States v Phillip Morris & ors.

The litigation relates to US government allegations that since 1953 the tobacco companies have tried to deceive or defraud the US public about the health risks of smoking.

Judge Kessler had ordered that the 1990 memo written by Foyle, which contains advice to BATCo, a subsidiary of BAT, on what documents it should destroy or retain in light of increasing tobacco litigation, be produced in June.

The Appeals Court found this to be unfair, stating that BAT had not acted unreasonably by failing to include the memo on an earlier list of documents on which privilege was being sought.

In a statement, BATCo said: “BATCo believes passionately in its right to claim the document is privileged. BATCo feels that to have lost privilege in this instance on technical grounds relating to the US discovery process could set a dangerous precedent.”