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April 23, 2002
Norman Madarasz
French Presidential Elections
Absenteeism and Le Pen
Dr. Susan
Block
Bernard
Parks, Goodbye:
A Farewell to My Chief
Joan Smith
Who Will Rid Us of
These Pedophile Priests?
April 22, 2002
CounterPunch
Wire
EPA
Ombudsman Resigns
in Protest
Dave Marsh
DeskScan: What's Playing
at My House This Week
Ron Jacobs
A20
in DC: Taking the
Message to the Beast's Belly
Kathy Kelly
An Open Letter to
Israeli Soldiers
Irit Katriel
Word
Games and Body Bags
Rep. Cynthia McKinney
We Come for Peace
Daniel
Bar-Tal
Is
There a Way Out?
Occupation, Terror
and Understanding
David Wilson
A Week of Coups, But Now
The Freedom Train Hits Town
Shaik
Ubaid
Today
I Was a Palestinian
April 21, 2002
Michelle Campos
Suckered Again in Israel
Mike Leon
200,000
in DC Protest Say:
"We Are All Palestinians Today"
C.G. Estabrook
Sex and Power in Catholicism
Kathy
Kelly
Gimme
Some Truth Now
A Walk Through Jenin
April 20, 2002
Philip Farruggio
Drowning in a Sea of Apathy
Kristen
Schurr
Leaving
Nablus
Bernard Weiner
Israel and the Intifada
for Dummies
Jean-Guy
Allard
A
Coup Signed by Otto Reich
Chris Floyd
The "Grandeur" That Was Rome:
A Letter from the Front
April 19, 2002
Eric Flint
Free
the Books!
David Krieger
A Peace Proposal:
Bring in the Children
Jeff Paterson
Advice
to Recruits from
a Gulf War Vet
Jeffrey St. Clair
From Sen. "Lunkhead" to
Bush Energy Czar: A Year in the Life of Spencer Abraham
April 18, 2002
Tom Turnipseed
Latin
America's Dilemma:
The Propaganda of Otto Reich
Sam Bahour
Bush is Playing Russian
Roulette with Palestinians
M. Shahid
Alam
A
Colonizing Project
Built on Lies
Resources:
100s of Links
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Five
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Whiteout:
CIA, Drugs & the
Press
by Alexander
Cockburn
and Jeffrey St. Clair
The New Crusade:
America's War on Terrorism
By Rahul Mahajan
The Memphis Blues Again:
Six Decades of Memphis Music Photographs
Photos by Ernest Withers
Text by Daniel Wolff
The New Intifada:
Resisting Israel's Apartheid
Edited by Roane Carey
A Pocket Guide to
Environmental Bad Guys
by James Ridgeway
and Jeffrey St. Clair
The
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by Douglas Valentine
Al Gore:
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April 24, 2002
Shredded:
Justice Delivered
to BAT
By Russell Mokhiber and
Robert Weissman
The latest evidence that Enron and Arthur Andersen
are not aberrations comes from Australia.
There, a judge has concluded that British
American Tobacco (BAT) has engaged in a massive document-destruction
scheme intentionally designed to thwart smokers or former smokers
from bringing suit against the company.
The judge found the document destruction
to be so serious that he directed a verdict for the plaintiff
in the case before him, a 51-year-old Australian woman named
Rolah Ann McCabe, without permitting BAT to mount a defense.
In a 133-page decision issued in March
but just recently made  public, Judge Geoffrey Eames
details an elaborate, carefully considered, company-wide document-destruction
scheme
"The predominant purpose of the
document destruction," the judge found, "was the denial
to plaintiffs of information which was likely to be of importance
in proving their case, in particular, proving the state of knowledge
of the defendant of the health risks of smoking, the addictive
qualities of cigarettes and the response of the defendant to
such knowledge."
The company was a defendant in various
lawsuits from 1990 until 1998, during which time shredding may
have stopped, though the judge expresses skepticism about this
claim.
In February 1996, Phyllis Cremona brought
suit against BAT in Australian courts. In the course of the discovery
phase of that litigation, BAT's subsidiary identified 30,000
documents as possibly relevant to the proceeding. With a few
exceptions, BAT scanned all of the documents, creating electronic
versions. Company lawyers also indexed and summarized virtually
all of the documents. The lawyers rated each document on a scale
of one to five, according to how damaging each was likely to
be to the company in litigation. A rating of five meant the document
was a "knockout" against the company, a rating of one
a "knockout" for BAT.
Only about 200 of the documents were
requested by the plaintiff in the Cremona case.
When the Cremona case ended and with
no pending litigation, BAT's chief counsel told an associate,
"now is a good opportunity to dispose of documents if we
no longer need to keep them. That should be done outside the
legal department."
Thousands of the 30,000 documents were
then destroyed. Also destroyed were the electronic versions of
the documents, the summaries, indices and ratings.
"The decision to destroy all such
lists and records," the judge concluded, "can only
have been a deliberate tactic designed to hide information as
to what was destroyed."
In 2001, the McCabe litigation commenced.
In the course of discovery, the plaintiff's lawyers requested
a range of materials which it appears would have included many
of the documents in the Cremona database, but were destroyed
after that case's completion.
Rather than acknowledge the destruction
of the documents, however, BAT lawyers engaged in a series of
obfuscations and delaying tactics. The judge found that the BAT
lawyers misled both the court and the plaintiff's lawyers, though
eventually through persistent questioning the document-destruction
scheme was revealed.
BAT defended, and continues to defend,
the shredding on the grounds that the company was not obligated
to hold on to documents that may be useful to an opposing party
in some future litigation. With no litigation pending after the
Cremona case, document destruction was proper, the company claims.
But the judge stated that while corporations
are not obligated to store documents indefinitely, they are not
free to destroy them in anticipation of future litigation. In
BAT's case, the company and its lawyers viewed future litigation
as a "virtual certainty," the judge held. "At
all times those who took the decisions about the implementation
of the policy regarded future proceedings to be not merely likely,
but to be a near certainty," Judge Eames wrote. "It
was that certainty which meant that any opportunity to destroy
documents which arose by virtue of the elimination of current
proceedings was to be seized upon."
The judge concluded that the exact prejudicial
effect to McCabe was unknowable -- since "the prejudice
to the plaintiff might be immense by virtue of the deliberate
destruction of one document, which might have been decisive in
her case" -- but potentially extreme. Accordingly, the judge
issued a ruling in favor of McCabe, without permitting BAT to
mount a defense.
A jury issued an award of more than $350,000.
With their client likely to die at any time, McCabe's lawyers
had agreed before trial that no punitive damages would be sought,
in order to expedite the trial.
BAT has said it will appeal the judge's
decision.
The potential implication of the decision
is enormous. While Judge Eames' decision will have no binding
effect in future cases, other judges, confronted with the same
evidentiary problems as in the McCabe case, are likely to consider
following Eames' example. BAT may find itself in Australia facing
the flood of litigation it long feared, but without the ability
to defend itself.
The decision also has potential implications
in the United States, especially because Judge Eames' findings
are that U.S. lawyers for BAT -- both company counsel and the
Kansas City tobacco firm of Shook Hardy and Bacon -- played a
critical role in directing the document destruction.
Move over Ken Lay, Jeffrey Skilling and
David Duncan of Arthur Andersen. You have company.
Russell Mokhiber
is editor of the Washington, D.C.-based Corporate Crime Reporter.
Robert Weissman is editor of the Washington, D.C.-based
Multinational
Monitor, and the co-director of Essential Action. They
are co-authors of Corporate
Predators: The Hunt for MegaProfits and the Attack on Democracy
(Monroe, Maine: Common Courage Press, 1999).
(c) Russell Mokhiber and Robert Weissman
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