L O B L E S O L I C I T O R S acted for for the United States of America in relation to the biggest case ever filed in an American court.

The government is suing a number of tobacco companies for $280 billion, alleging that they misled the public about the risks of smoking.

In December 2003, after a 3-day hearing, the Commercial Court in London made an order that Andrew Foyle, a partner in City solicitors firm Lovells, be examined about the document destruction policies of BATCo, a subsidiary of British American Tobacco plc, despite protestations that such evidence could not be obtained as a result of legal professional privilege. A copy of the decision can be found here (Court Service website).

A copy of the American Court's Request to the English Court is on the website of the United States Department of Justice.

More information on the case can be found on the Department of Justice website, including a copy of the Amended Complaint.

The decision is being appealed to the Court of Appeal. Simultaneously, preparations are being made for the examination, which will take place before a High Court judge. This is a novel legal development.

Below is a selection of items about the case from the media

BAT's Broughton May Have to Testify in U.S. Tobacco Lawsuit

Nov. 12 (Bloomberg) -- British American Tobacco Plc Chairman Martin Broughton may have to give evidence to the High Court in London in relation to the U.S. Department of Justice's $289 billion suit against tobacco companies.

The DOJ asked the High Court to order Broughton to testify, according to public court documents. The Department of Justice also wants to interview Andrew Foyle, a litigation partner at London-based law firm Lovells, who has acted for the world's second-largest cigarette maker. Foyle and Broughton both contest the DOJ's application.

British American Tobacco's U.S. unit, Brown and Williamson Tobacco Corp., is among cigarette makers being sued by the U.S. government for advertising fraud. The Justice Department claims that U.S. cigarette makers continue to lie about the risks of smoking and market their products to children. The suit, brought in 1999, originally sought $20 billion in damages.

``We believe that these examinations should be very specific and the DOJ is suggesting an open-ended fishing trip,'' said David Betteridge, a spokesman for BAT. ``We believe that the DOJ's case is without merit.''

Lawyers for Broughton are expected to begin their arguments tomorrow.

The Justice Department has been ``evasive'' about the questions they wish to ask Foyle, his lawyers told the High Court.

``Mr. Foyle is naturally concerned that the claimant does not in fact know what questions it wishes to put, and is simply seeking to get a foot in the door with a view to embarking on a roving examination to see what turns up,'' Mark Hapgood QC, Foyle's lawyer, told the court.

Privilege

Foyle has also claimed that he's covered by legal privilege rules, which stipulate that advice given by lawyers to clients is confidential.

The hearing before Justice James Moore-Bick is scheduled to end this week.

Kenneth Maclean QC and Loble Solicitors are acting for the Justice Department, while law firm Norton Rose is representing Foyle. Jeffery Onions QC and London-based law firm Herbert Smith are acting for Broughton, while Barbara Dohmann QC and Lovells are representing BAT.

The case number is Folio 2003/749, The United States of America v Philip Morris Inc. and others.

Last Updated: November 12, 2003 15:27 EST

FT.com

WORLD NEWS: US court attempt to question BAT chief

By Nikki Tait
Financial Times; Nov 12, 2003

The US authorities yesterday went to London's High Court in an effort to win the right to examine ... Andrew Foyle, a partner at the Lovells law firm, in relation to US-based tobacco litigation. Mr Foyle was one of the lawyers employed by BAT who advised on the company's "document retention" policy - details of which became public during an Australian tobacco lawsuit.

Mr Foyle's potential examination raises issues of legal privilege...

Lovells partner fights US attempts to force evidence

Friday, 14th November 2003

A senior litigation partner at City firm Lovells is this week resisting attempts to make him give evidence in a major US tobacco case.

Andrew Foyle is contesting an application by a US court requesting that its English counterpart take evidence from him and British American Tobacco (BAT) chairman Martin Broughton in the US government's action against a host of top tobacco companies in the US, including a subsidiary of Lovells' clients BAT, known as BATCo.

The US action alleges that the companies fraudulently concealed research on the health consequences of smoking and deceived consumers as to the addictive qualities of nicotine.

It also claims that some of the defendants destroyed certain documents.

A US court wants to ask Mr Foyle questions about his knowledge of BAT and BATCo's document management policy and the alleged destruction of relevant documents. It wants to ask Mr Broughton questions on BAT's corporate structure. There is no suggestion that Mr Foyle, Lovells or Mr Broughton were involved in any document destruction or any wrongdoing whatsoever. The US application acknowledges that there is evidence that Mr Foyle did not direct any destruction.

The current proceedings are merely to establish whether Mr Foyle and Mr Broughton can be made to answer any questions.

Mr Foyle and BATCo - represented by City firm Norton Rose - claim legal professional privilege.

A BAT spokesman said Mr Broughton, represented by City firm Herbert Smith, says he should not be a party to the proceedings because he is chairman of the UK plc and not an employee or director of BATCo, which is being advised by Lovells.

He added: 'This litigation in the US was started by [President] Clinton and has been going nowhere fast. We think it is entirely without merit, and will be vigorously defended if it ever does come to court.'

London firm Loble Solicitors is acting for the US Department of Justice.

24th November 2003

Lovells partner called up for BAT litigation evidence

Lovells litigation partner Andrew Foyle may be forced to give evidence in relation to his client British American Tobacco (BAT), this time in a $280bn (£164.4bn) case, United States of America v Philip Morris & ors.

Foyle is currently awaiting the outcome of a UK hearing held earlier this month that will decide whether he must give evidence in the case, in which BAT is a co-defendant. Foyle’s advice in relation to the tobacco giant’s document retention previously came under scrutiny in Australian McCabe v BAT.

The Australian courts originally found in favour of lung cancer victim Rolah McCabe, but the decision was overturned by the Court of Appeal, which completely exonerated both the company and its lawyers. Last month, the High Court ruled that it would not give the McCabe family leave to appeal the decision.

Now Foyle has been asked to provide written and video-taped evidence for the $280bn claim. The latest hearing does not suggest that Foyle or Lovells acted improperly. It revolves around whether the information should remain confidential because of legal privilege.

Foyle has been granted immunity from criminal prosecution by the US Department of Justice.

Lovells is representing BAT, the US government is represented by Steven Loble, of Loble Solicitors, Norton Rose is advising Foyle and Herbert Smith is acting for BAT chief executive Martin Broughton, who is also being asked to give evidence.

Lovells declined to comment as the matter is ongoing.

BAT's Broughton Won't Testify in U.S. Tobacco Suit
(New York)

Dec. 10 (Bloomberg) -- British American Tobacco Plc Chairman
Martin Broughton won't have to give evidence to the High Court in
London for the U.S. Department of Justice's $289 billion suit
against tobacco companies, the High Court in London ruled.
Justice James Moore-Bick refused the Justice Department's
request to order Broughton to submit to questioning. The Justice
Department was given the go-ahead to interview Andrew Foyle, a
litigation partner at London-based law firm Lovells, who has
represented the world's second-largest cigarette maker.
The judge backed Broughton's argument that the Justice
Department's request was too vague.
``Many of the proposed subjects of the examination are
described in such broad terms that almost any line of questioning
could be justified and it would be impossible for Mr. Broughton to
prepare for the examination in any useful way,'' the judge wrote.
British American Tobacco's U.S. unit, Brown & Williamson
Tobacco Corp., is among cigarette makers being sued by the U.S.
government for advertising fraud. The Justice Department alleges
that U.S. cigarette makers continue to lie about the risks of
smoking and market their products to children. The suit, brought
in 1999, originally sought $20 billion in damages.
The Justice Department claims the companies destroyed
documents, or routed some through lawyers marked as
``confidential'' so they could be protected by legal privilege.
The companies are accused of having lawyers control scientific
research into the effects of smoking on health. BAT denies
wrongdoing.

Granted Immunity

Foyle has been granted immunity from prosecution by the
Justice Department, which says there are no allegations of
improper conduct against him. The Department wants to ask him
about BAT's policy for document retention and allegations that
documents about smoking and health were destroyed.
Justice Moore-Bick rejected arguments by lawyers for BAT and
Foyle that he couldn't be questioned about advice he gave BAT
because he was protected by legal privilege. Legal rules stipulate
that advice lawyers give their clients should remain confidential.
The judge said Foyle couldn't claim he was protected from
questioning on all his dealings with BAT because the cigarette
maker wasn't facing suits when it hired his firm.
Foyle had written a letter reminding a BAT researcher that
scientists at different tobacco companies should contact each
other through their lawyers so the content could remain private
and protected by legal privilege, the judge wrote.

`Spring Cleaning'

The judge also noted a record of a meeting between BAT and
Lovells when the lawyers decided against destroying documents,
though there would be a ``spring clean'' which may ``include the
destruction of documents, such as previous drafts.''
The judge also said that a witness couldn't automatically be
questioned on a document protected by legal privilege that had
become public. The Justice Department has said that 40 million
documents have been disclosed for their case.
Still, the judge cautioned that evidence suggests much of
Foyle's contact with BAT is protected by privilege.
``I think it likely that an examination of Mr. Foyle would
give rise to questions of some difficulty,'' Justice Moore-Bick
wrote. ``It may become apparent as the examination progresses that
the exercise is largely a waste of time, but I do not think that
the likelihood of that occurring is sufficient to justify refusing
to make the order.''
Moore-Bick's ruling follows a decision by the Court of Appeal
this year that legal privilege is restricted to contact or
documents passed between a lawyer and his client when legal advice
is being sought or provided.
Broughton, who became Chairman of BAT in February 1998, is
stepping down in June.
Kenneth Maclean QC and Loble Solicitors acted for the Justice
Department, while law firm Norton Rose represented Foyle. Jeffery
Onions QC and London-based law firm Herbert Smith acted for
Broughton, while Barbara Dohmann QC and Lovells represented BAT.
The case number is Folio 2003/749, The United States of
America v Philip Morris Inc. and others.

--Liz Chong at the High Court through the London newsroom (44) 20
7330 7410, or at lchong4@bloomberg.net Editor: E. Sullivan.

11th December 2003

Judge orders Foyle to testify in US tobacco case

Lovells litigation partner Andrew Foyle will be required to give evidence in relation to his client British American Tobacco (BAT) in the $289bn (£165.68bn) case, United States of America v Philip Morris & Others.

Mr Justice Moore-Bick ruled yesterday (10 December) that Foyle must give evidence in the case, in which BAT is a co-defendant.

Foyle’s advice in relation to the tobacco giant’s document retention previously came under scrutiny in the Australian McCabe v BAT case.

The Australian courts originally found in favour of lung cancer victim Rolah McCabe, but the decision was overturned by the Court of Appeal. Both the company and its lawyers were completely exonerated. Last month the High Court ruled that it would not give the McCabe family leave to appeal the decision.

Now Foyle has been asked to provide evidence for the US claim – although the evidence will be heard in the UK. However, this decision does not suggest that Foyle or Lovells had acted improperly. The judgment states that the United States has no present intention of bringing criminal or civil proceedings against Mr Foyle.

Lovells represented BAT. The US government was represented by Steven Loble of Loble Solicitors. Norton Rose advised Foyle and Herbert Smith acted for BAT chief executive Martin Broughton, who was not ordered to give evidence.

Lovells declined to comment.

FT.com

NATIONAL NEWS: Solicitor to be quizzed in tobacco lawsuit

By Nikki Tait
Financial Times; Dec 11, 2003

A senior London-based solicitor was yesterday ordered to answer questions from the US Justice Department over the advice he gave on document destruction policies at British American Tobacco.

The US government has been seeking to examine Andrew Foyle, a partner at Lovells law firm, ...as part of its $289bn (£172bn) lawsuit against the tobacco industry...

Mr Foyle's role came to light last year in an Australian personal injury case, brought by Rolah McCabe, a cancer victim who has since died...

Yesterday Mr Justice Moore-Bick gave the go-ahead to the examination of the Lovells partner...

Court rules that Lovells partner must answer questions in US tobacco case
18th December 2003

ANDREW FOYLE: claim for blanket privilege fails - but he may seek it question by question

Lovells partner Andrew Foyle will attend a novel hearing in a massive US tobacco case against a client, after the High Court rejected his efforts to claim blanket privilege.

Mr Justice Moore-Bick last week ruled that Mr Foyle will be posed questions by a barrister on behalf of the US government in a special examination in the High Court.

It is part of a case against a host of leading tobacco companies, including BATCo, a US subsidiary of Lovells' client British American Tobacco (BAT) (see [2003] Gazette, 20 November, 3).

The US government accuses the tobacco companies of concealing medical research on the harmful effects of smoking and the addictive nature of nicotine. Some are also accused of destroying documents.

It wants to ask Mr Foyle questions about his knowledge of BAT and BATCo's document management policy.

There is no suggestion that Mr Foyle was engaged in any wrongdoing and the US has assured him that he will not face any legal action. Nor is there any claim of impropriety against BATCo.

The judge rejected outright Mr Foyle's claim for litigation privilege - a point which BAT is appealing and Mr Foyle has been given leave to appeal - but he accepted that legal advice privilege will be relevant for much of the questioning.

However, he said privilege would be less clear in relation to 'the organisation and implementation of the document review process'.

Mr Foyle will be able to raise the issue of privilege in response to individual questions.

Norton Rose partner Val Davies, who acts for Mr Foyle, said: 'The judge accepted that many of the communications are protected by legal advice privilege.

'It is very difficult just to say in abstract [whether privilege applies] when lawyers are giving advice relating to organising and implementing the review of documents - I believe that could well still be protected by legal advice or litigation privilege.'

Steven Loble, partner at Loble Solicitors who acted for the US government, said: 'A High Court judge will preside over the proceedings to answer questions of privilege. This is novel - these proceedings are normally overseen by a barrister. Mr Foyle will be given lines of questioning and sample questions in advance, but not the actual questions he will be asked.'

BATCo will be able to attend the examination and raise objections on its own behalf when it considers privilege may be breached.

A spokeswoman confirmed that the company will be claiming privilege on 'ad hoc communications'. If the judge rules that some information is not privileged, BATCo will be able to challenge this with an expedited appeal to the Court of Appeal.

BAT chairman Martin Broughton will not be forced to give evidence; the judge considered the grounds for calling him to be too broad. There was no suggestion of any wrongdoing by Mr Broughton.

Rachel Rothwell

Guardian Unlimited

City diary

Simon Bowers
Tuesday January 6, 2004

Congratulations to Andrew Foyle …partner at City law firm Lovells. After years of silence … finally … permitted - with … help from a high court ruling - to answer questions... over accusations that he helped develop an internal document shredding policy at British American Tobacco... The questioning forms part of a $290bn claim being brought by the US government against major American tobacco firms...

Week of 8^th January 2004

NO SMOKING:

London sole practitioner Steven Loble advised the US Department of Justice when it won the right to call senior Lovells litigator Andrew Foyle as a witness in the biggest case ever filed in a US court – United States of America v Philip Morris. US district judge Gladys Kessler called for Foyle to give evidence on a British American Tobacco Plc (BAT) document management policy that led to the destruction of a number of documents on smoking-related health issues. Advised by Norton Rose, Foyle argued that his dealings with BAT were covered by legal professional privilege.

But Mr Justice Moore-Bick ruled that he should give evidence in the case, that accuses Philip Morris, BAT and a number of other tobacco-related organisations of conspiring to deceive US consumers into becoming addicted smokers – despite knowing the health risks associated with tobacco. The case is to be heard in the US District Court of Columbia. The US Department of Justice also called for BAT chairman Martin Broughton, who was advised by Herbert Smith, to give evidence in the case, but the application was turned down.