Evidence (Attorney-Client Privilege)

• Author: International Law Group

The British American Tobacco Company (BATCo) was involved as a defendant in massive U.S. litigation brought by the U.S. government, inter alia, over whether the tobacco industry had taken part in an illegal conspiracy to deceive the public as to the extent of the health risks from smoking. The State of Minnesota also had sued to recover, inter alia, the costs of treating those citizens injured by smoking. After settlements of the Minnesota cases and some other similar U.S. proceedings, BATCo joined in the Minnesota Consent Judgment (MCJ).

The MCJ contained provisions authorizing the state court to allow the public release of millions of documents which the court had placed in a depository under the terms of a protective order. Paragraph VIII C [provides:]. "For documents upon which a privilege was claimed and found not to exist, including any briefs, memoranda and other pleadings filed by the parties which include reference to such documents, Plaintiffs may seek court approval to make such documents available to the public, provided that any such request be made to the Court within 45 days of the date of entry of this Consent Judgment." [¶ 20]

Later, the court authorized the release of these documents. BATCo opposed the making of the order and unsuccessfully appealed against the grant of court approval to the Minnesota Court of Appeals and to the Supreme Court of Minnesota.

Pursuant to a Letter of Request sent by the U.S. District Court for the District of Columbia [Kessler, J.], the English Commercial Court had ordered the examination of Mr. Andrew Foyle. Mr. Foyle was a partner in the firm of solicitors who had acted for the BATCo group, representing them from about 1985 to May 1994. In an earlier appeal, the English Court of Appeal (Civil Division) had rejected a blanket claim of attorney-client privilege as to all relevant matters Mr. Foyle might have known about the client's alleged concealment of a relatively small number of documents. Instead, it sent the case back for the lower court to rule on privilege claims on an item-by-item basis. See 2004 International Law Update 55.

At a directions hearing before Mr. Foyle's deposition, the Commercial Court declared, inter alia, that BATCo had voluntarily waived privilege in documents which had come into the public domain pursuant to the MCJ to which BATCo had voluntarily consented. BATCo again sought appellate review. The issue presented was whether the attorney-client privilege, which...