UNITED STATES DISTRICT COUR

EASTERN DISTRICT OF TEXAS

TEXARKANA DIVISION

THE STATE OF TEXAS,

Plaintiff,

v.

THE AMERICAN TOBACCO COMPANY; R.J. REYNOLDS TOBACCO COMPANY; BROWN & WILLIAMSON TOBACCO CORPORATION; B.A.T. INDUSTRIES, P.L.C.; PHILIP MORRIS, INC.; LIGGETT GROUP, INC.; LORILLARD TOBACCO COMPANY, INC.; UNITED STATES TOBACCO COMPANY; HILL & KNOWLTON, INC.; THE COUNCIL FOR TOBACCO RESEARCH - USA, INC. (Successor to Tobacco Institute Research Committee); and THE TOBACCO INSTITUTE, INC.

Defendants.

Civil Action No. 5:96CV91

November 13, 1996

ORDER COMPELLING DISCLOSURE

Judge: David Folsom

Magistrate: Wendell C. Radford

The Motion of the State of Texas to Compel Defendants' compliance with the provisions of the Eastern District's Civil Justice Expense and Delay Reduction Plan (the "Plan") and Defendants [ All Defendants except B.A.T. Industries, p.l.c. (BAT) and United States Tobacco Company.] Motion to Compel Plaintiff to comply with the Plan were heard on September 27, 1996. After considering all filings related to the motions, arguments of counsel and applicable law, the Court makes the following findings of fact and order:

The Court finds that both moving parties are entitled to disclosure under the Plan beyond that which has already been made. It is of great concern to the Court that several Defendants have made little or no meaningful attempt to comply with the Plan. As set forth below in detail, the Court orders compliance with the Plan by all parties. [ By order of this Court on October 7, 1996, BAT was ordered to make initial disclosure to Plaintiff on the issue of personal jurisdiction. This order supplements the October 7, 1996 order relative to production of documents and information that significantly bear on the issue of personal jurisdiction of this Court over B.A.T.] In ordering the parties to comply with the Plan, the Court is mindful of the countervailing arguments of the parties, the complexity of the issues and the tremendous volume of records that must be reviewed and disclosed.

However, out of the myriad issues, complexities and voluminous document production requirements that have been addressed so thoroughly by both parties in memoranda and argument, there are several considerations that rise to prominence against the procedural backdrop framed by the Plan and the Federal Rules' stated objectives for the just, speedy, and inexpensive determination of every action.

This Court recognizes the State of Texas' interest in the health and lives of its citizens and, particularly, the health and welfare of its children. Accordingly, the Court finds there is a legitimate public interest in the resolution of the issues set forth by Plaintiff. Of equal importance is the opportunity for the Defendants to answer and refute the State's claims, as soon as possible, if the claims are without merit.

Another consideration in fashioning this order is the parties' agreement and request for a September, 1997, trial date. The workload undertaken by the parties' counsel, as well as the considerable employment of this Court's resources, is no small commitment. It is essential, therefore, that this Court order every reasonable measure to facilitate pre-trial preparation that is affordable, timely and fair. At the same time, those measures must enhance the economy of judicial resources as this matter progresses to trial. The initial disclosure requirement under the Plan is the best tool to initiate meaningful discovery that will later be supplemented by the discovery provided for in the Case Management Order.

Finally, in fashioning this order, both parties have impressed the Court with the absolute need to utilize existing computer database indices, as well as indices to be provided with document production, in order to have meaningful access to the millions of pages of documents or electronic data that constitute the universe of relevant information. Counsel for Defendants, particularly, argued convincingly that the use of existing indices was the quickest way to make available documents, both as a matter of paper and as a matter of computers. Counsel for Plaintiff took the Defendants' point further and argued that preexisting databases, prepared by Defendants or their counsel in anticipation of or in preparation for litigation and produced in the Minnesota Case [ The State of Minnesota et al v. Philip Morris et al., File #C1-94-8565, 2 nd Judicial District Court, County of Ramsey, State of Minnesota.] should be produced in this case. Plaintiff asserts that the 4(a) and 4(b) indices are necessary to fulfill the intent of the Plan. Defendants are agreeable to produce the 4(b) indices but argue that the 4(a) indices constitute work-product protected from production under the doctrine outlined in Hickman v. Taylor,329 U.S. 495 (1947).

The work-product doctrine is a qualified immunity under the applicable rules of the FRCP and Hickman. The standard for the production of "work- product" material to an opposing party is set forth in FRCP Rule 26(b)(3). It is abundantly evident from the affidavits and exhibits submitted by all parties, and it is a finding of fact by this Court, that the Plaintiff has substantial need of both the 4(a) and 4(b) indices in order to prepare its case for the September, 1997 trial date. The Court finds that it would create an undue, if not impossible, hardship on Plaintiff to process, review and recreate the databases indices for the millions of pages of documents in the possession of Defendants. Defendants' own affidavits submitted in connection with these motions show it has taken years and millions of dollars to produce the 4(a) indices. Defendants' affidavits and arguments before this Court are quite convincing that there does not exist a substantial equivalent to the 4(a) indices that Plaintiff can reasonably use considering the time and expense factors. To withhold production of the 4(a) indices from Plaintiff, would run directly counter to the objectives of the Plan. The latter consequence is especially avoidable as this Court has, as does the state court in Minnesota, the ability to order production of the indices and protect against disclosing the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of any Defendant concerning the litigation.

Accordingly,

IT IS THEREFORE ORDERED. that:

1. Plaintiff and Defendants shall produce computerized or electronic indices [ For purposes of this Order, production of indices shall be in the form of ASCII or WordPerfect 5.0/5.1 documents on 3.5 inch disk only.] for all documents produced to other parties in this litigation. Said indices shall be produced contemporaneously with document production and shall include the following fields:

1. Begin Bates/Document No.

2. End Bates/Document No.

3. Year - (of the document)

4. Month

5. Day

6. Document Type

7. Title/Reference

8. Author

9. Recipient

10. CC's

For those documents already produced the parties shall provide computer or electronic indices within twenty (20) days of this order.

2. Plaintiff shall produce to Defendants all documents bearing significantly on the models and/or methods used in calculating damages when the Center for Disease Control damage model has been finalized or within ninety (90) days from the signing of this order, whichever is sooner. This production shall include all software programs and user manuals to the extent production is not prohibited by licensing agreements or copyright laws.

3. Plaintiff shall produce to Defendants all documents bearing significantly on the computations of its alleged damages for each of the three categories of damages identified in Plaintiff's Amended and Supplemental Disclosure, dated July 24, 1996, at 44, as soon as the Center for Disease Control damage model has been finalized and applied to the State of Texas' Medicaid data or within ninety (90) days from the signing of this order, whichever is sooner. This production shall include all data used in calculating damages and data generated from data calculations.

4. Plaintiff shall produce on or before December 15, 1996, organizational charts from 1967 to present for all State agencies and commissions administrating or operating the Medicaid, State employee insurance and retirement program and State-funded health care providers (the "Programs").

5. Plaintiff shall produce on or before December 15, 1996, all documents that bear significantly on the State's awareness of the health risks associated with tobacco, including documents relating to the State's efforts to educate Texas residents about or discourage Texas residents from using tobacco."

6. Those portions of Defendants' Motion requesting disclosure of Medicaid recipient specific information are denied pending further orders of this Court.

7. A hearing on the confidentiality and/or production of information from Medicaid data tapes is hereby set for 10:00 a.m. the 2^nd day of December, 1996 in Beaumont, Texas.

8. Defendants shall produce the following:

1. On or before December 15, 1996, Defendants [ Excluding B.A.T. Industries, p.l.c.] shall produce copies of all documents, data compilations or tangible items that bear significantly on any claim or defense of the parties. Documents to be produced include documents produced by Defendants in current or past litigation or otherwise in their possession and/or control that bear significantly on any of the Plaintiff's claims.

2. In addition to paper copies of the documents set forth in item 1, to the extent Defendants have optically scanned, or otherwise stored electronically the documents or data compilations, Defendants are ordered within twenty (20) days to provide Plaintiff with that data and information in the identical format.

3. Within twenty (20) days of this order, Defendants shall produce the database indices identified as the 4(a) and 4(b) indices produced in The State of Minnesota. et al v. Philip Morris. et al. File #Cl-94-8565, 2nd Judicial District Court, County of Ramsey, State of Minnesota case pursuant to Chief Judge Kenneth J. Fitzpatrick's November 1, 1995 order, specifically, as follows:

A. Philip Morris Incorporated shall release the following fields:

SHB Database: Document ID, Master ID, Other Number, Document Date, Primary Type, Other Type, Person Author, Person Recipient, Person Copied, Person Mentioned, Person Attending, Person Noted, Organization Author, Organization Recipient, Organization Copied, Organization Mentioned, Organiza-tion Attending, Organization Noted, Mentioned Brand File Name, Site, Area, Verbatim Title

ABC Database: Starting and Ending Bates Numbers, Date Title, Document Type, Author, Addressee, Copyee, Source, File

A&P

Database: Source, Document Number, Attachment Range, Document Date, Document Types 05 through l 5 only, Title, To/Addressee - Personal Names, To/Addressee - Organizational Names, From/Author - Personal Names, From/Author - Organizational Names, Copyee - Personal Names, Copyee - Organizational Names

B. R.J. Reynolds Tobacco Company shall release the following fields:

Litigation

Database: Addressee, Attachments, Author, Brand Names, Copyee, Doc Date, Doc ID X, Doc Type, Mentioned Names, Page Length, Referenced Doc, RJR Intnl Docs, Source, Split Record, Title

Additives

Database: Release Additive Brands, Addictive Name, Pesticide Name, and Other Brands in addition to those fields listed for Litigation Database, above.

Premier Database: 75% of the documents in this database are included in the Litigation Database, thus of the 25% which is not included, the following shall be released: Addressees AFF, Attachment(s), Authors AFF, Brand(s), Copyees, Doc ID #, Document Type, Item Date, Other Names, Source, Title.

Outside Attorney

Database: Addressee, Attachments, Author, Brand Names, Copyee, Doc ID #, Doc Type, Item Date, Other Name, Source, Title.

C. Brown & Williamson Tobacco Corporation shall release the following fields:

Litigation

Database: Document Identification Number, Document Date, Objective Date, Document Type, Primary Docu-ment Type, Secondary Document Type, Personal Names/Organiza-tions, Recipient, Organizer, Copyee, Mentioned, Forwarded To, Owner of Document, Attendee, File Folder Name, Area/Sub-Area Names, Brand Names, Verbatim Title, Substan-ces, Substances No Code, Diseases

Stolen Database: DocID, Date, File, Type, To, From, Orig, Title (Verbatim only, i.e., may redact Title Inferred)

D. Lorillard Tobacco Company shall release its document database showing the following fields:

Document ID, Master ID, Other Number, Document Date, Primary Type, Other Type, Person Author, Person Recipient, Person Copied, Person Mentioned, Person Attending, Person Noted, Organization Copies, Organization Mentioned, Organization Attending, Organization Noted, File Names, Site, Area, Verbatim Title, Mentioned Brand

E. The American Tobacco Company shall release the following fields [ The following database indices referred to as "Exhibit A", etc., are those referred to in Judge Fitzpatrick's November 1, 1995 Order in Minnesota, supra .] :

Exhibit A: DOCNO, DATE, TITLE, TYPE, AUTHOR, RECIP, COPIES, PERSONS, BRANDS, PAGES, ATTACH, DRAFT, COMPS, ORGS

Exhibit B: DOC_TYPE, BEGIN_DOC, END_DOC, TITLE, DESCRIPTION,AUTHOR, ADDRES-SEE, COPIED, MENTIONED, DOC_DATE, ATTACHMENT, DRAFT __

Exhibit C: BEGIN_BATE, END_BATE, RENUMBERED, DOCNO, DATE, TITLE, TYPE, AUTHOR, RECIP, COPIES, PER-SONS, BRANDS, PAGES, ATTACH, DRAFT, COMPS, ORGS

Exhibit D: BOXNO, BARCHNO, PAGESTART, PAGEEND, YRSTART, YREND, BLUESTART, BLUEEND, DATE, AUTHOR, RECIPIENT, PAGECOUNT

Exhibit E: PAGENO, PAGE-START, PAGEEND, BLUESTART, BLUEEND, PAGECOUNT, YRNUM-BER

Exhibit F: BOX_NUMBER, BATCH_NO, START_PAGE, END_PAGE, BLUE_START, BLUE_END, DATE, AUTHOR, RECIPIENT, PAGE_COUNT, LOOSE

Exhibit G: START_DATE, END_DATE, DOC_TYPE, AUTHOR, RECIPIENT, TITLE, PERS COPIED, COMP_COPIED, NUMBER_PAGES, ATTACHMENT, PERSONS. COMPA-NIES, SUBJECTS, ATCO_FILES

F. Liggett may redact from its index or database all information contained in columns or fields EXCEPT that information contained in the fields identified below, and it shall then produce its index, as redacted, to plaintiffs:

Document Number, End Number, Date, Type, Author, Recipient, Ccs, Title/Reference, Name Mentioned

G. CTR may redact from its indices or databases all information contained in columns or fields EXCEPT that information contained in the fields identified below and shall then produce its indices, as redacted, to plaintiffs:

Debevoise

Database: Authors, Recipients, Copyees, Document Date and Date Qualifier, Title, Primary Doc, Primary Doc and Secondary Doc, Attendee, Mentioned Names, Brand Names and Reference Brands, Doc Range, Original Doc ID, Custodian, Doc ID

Special Projects Publications

Database: Publ, Recip

H. The Tobacco Institute may redact from its index or database all information contained in columns or fields EXCEPT that information contained in the fields identified below and shall then produce its index, as redacted, to plaintiffs:

PREFIX, BPROD, BSUFFIX, E PROD, QPROD, DATE, AUTHOR, ADDRES-SEE, COPY, PLACE, TYPE, NAMES, COPY

I. Within ten (10) days, Defendants, Hill & Knowlton ("H&K") and United States Tobacco Company ("US&C") shall identify to Plaintiff all existing databases relating to documents in its possession or control. On or before December 15, 1996, H&K and USTC shall provide Plaintiff with a copy of all document databases, however, H&K and USTC may redact portions of their databases to delete attorney subjective comments.

9. Defendants producing documents into the Minneapolis depository in the Minnesota Case, supra, shall immediately allow Plaintiff access to their documents in Minneapolis for inspection and copying.

10. The parties are ordered to meet and confer in good faith on other matters that bear significantly on the claims and defenses.

11. It is further provided that nothing in this Order shall be construed to require a party to create a document for production. Except for the creation of production indices, this Order requires production of only those documents to the extent they exist and are within the actual or constructive possession, custody and/or control of that party.

12. The use and dissemination of any and all documents produced in this case in accordance with this Order Compelling Disclosure or subsequent orders or discovery requests shall be governed by the "Confidentiality Order" attached hereto as Exhibit "A." The "Confidentiality Order" reflects this Courts' finding that this action is of great public interest as it involves important public health and welfare concerns. Accordingly, and until further orders of this Court, the attached Confidentiality Order" is controlling and supersedes any other order concerning the documents produced in this action.