Judicial Assistance

• Author: International Law Group

The plaintiff in this case is the government of the United States. Since 1999, it has been carrying on civil RICO litigation in the U.S. against a number of tobacco companies. The action is one of the most complex in American history. Discovery may involve upwards of 40 million documents and damages are claimed to be U.S.$ 289 billion. The plaintiff was claiming that, since 1953, those companies had taken part in an illegal campaign to deceive and defraud the American public about the health risks linked to smoking and about their knowledge and attitude towards them.

Among the defendants to that lawsuit are two companies in the British American Tobacco group. British American Tobacco (Investments) Ltd. (BAT), which became a corporation in 1997, owned both companies. Mr. Andrew Foyle was a partner in the firm of solicitors who acted for the BAT group, representing them from about 1985 to May 1994.

The plaintiff applied, inter alia, for an order to have Mr. Foyle deposed for the purposes of making his evidence available for use in the trial of proceedings now pending in the U.S. District Court for the District of Columbia which had issued a Letter of Request.

The defendants opposed the application.

One of plaintiff's allegations was that defendants or others had intentionally destroyed many relevant documents or had taken them out of U.S. jurisdiction. The plaintiff specifically wished to question Mr. Foyle as to the defendants' document management policies and procedures. Mr. Foyle admitted that he could give relevant and admissible evidence, but opposed the order applied for on the grounds of legal professional privilege and oppression. The chief constraints on the judge in a matter such as this is the Evidence (Proceedings in other Jurisdictions) Act 1975.

The plaintiff conceded that Mr. Foyle might well be entitled to refuse to answer many questions put to him, but contended that the proper course would be to make objections or invoke privilege as to specific questions asked. The Commercial Court judge ruled for the plaintiff, ordering the deposition to be carried out by English counsel before a judge of that Court. The defendants and Mr. Foyle appealed.

The appellants argued that privilege covered all communications passing between Mr. Foyle and the BAT group companies. The Commercial Court could not, therefore, require Mr. Foyle to answer questions on any of the matters identified in the letter of request, unless BAT waived all its...