Supplementary memorandum by British American
Tobacco (TB 28C)
GUILDFORD DEPOSITORY
The documentation held in the Guildford Depository
is freely and readily available to the public. The Depository
was first opened to the public in February, 1999. Of the 220 days
the Depository has been open (up to the end of last year), it
has been visited on only 133 days. Whilst the Depository has been
open to all members of the public, most of the visitors have been
overseas organisations who are either liltigating (or interested
to litigate) against British American Tobacco or anti-smoking
organisations and lobbyists. None of the visitors has been an
academic who might have a research interest. Only one British
organisation has visited the Depository, ie ASH (which has visited
nine times). There have also been four visits by an investigative
journalist on behalf of the Center for Public Integrity, Washington,
DC.
Before dealing with the specific requests for
information set out in paragraph 2 of your letter, I must deal
with the issue of "parity with the US documentation"
referred to in paragraph 3. Though set up to house similar categories
of documents as are contained in the Minneapolis Depository, the
Guildford Depository has never, either at the stage of its inception
(pursuant to the Stipulated Order dated 17 August, 1995 of the
Minnesota court) or in the course of its operation, been envisaged
as a replica of the Minneapolis Depository. The Minneapolis Depository
was established as a depository to contain copies (ether in hard
copy or imaged form) and indices of individual documents relevant
to the issues in the US smoking and health litigation. Because
B.A.T. Industries p.l.c. and British-American Tobacco Company
Limited were only joined in the US smoking and health litigation
at a relatively late stage, these companies were not in a position
to comply with the proposed timetable for the Minnesota action
except by stocking the Guildford Depository with potentially relevant
files. That is, they were not in a position, in the time available
to them, to select and index individual relevant documents from
the potentially relevant files. As it was, working with probably
the largest team of paralegals assembled in the UK, it took over
two years to identify and collect in the files, index and copy
those files, and then review them for privileged and trade secret
material.
The setting up of the Guildford Depository in
the manner set out above had the following consequences:
1. The index to the Depository is on a file
basis. There is no document by document index to the Depository.
In fact, the Stipulated Order expressly exempted B.A.T. Industries
p.l.c. (which was also producing British-American Tobacco Company
Limited documents) from any obligation to provide such an index.
(A copy of the Order is attached, Appendix 2).
2. The absence of a document by document
index, taken together with the very large quantities of documents
in the Guildford Depository (see paragraph 1 below), makes the
indexing and imaging of all documents in the Guildford Depository
an enormous and very time consuming exercise. Neither B.A.T. Industries
p.l.c. nor British-American Tobacco Company Limited has undertaken
such an exercise.
Turning then on to the information you have
requested, and dealing with each item in the same order as set
out in your letter:
1. THE NUMBER
OF DOCUMENTS
HELD IN
THE DEPOSITORY
Given what I have set out above with regard
to the stocking and indexing of the Depository, and the fact that
there is no document by document index to the Depository, I am
not in a position to tell you the number of documents held in
the Depository. I can tell you that 40,784 files have been put
into the Depository. A file roughly approximates 200 pages (putting
the total number of pages in the Depository at about 8,000,000).
You will appreciate that, prior to the Depository being opened
to the public, in the three years or so previously, it was available
to the teams of US plaintiffs lawyers in their cases in the US
(to date unsuccessful) against B.A.T. Industries p.l.c. and British-American
Tobacco Company Limited. For your information, whilst many of
the visitors have undertaken exhaustive searches of the files
in the Depository, they, including all the US plaintiffs lawyers,
have only requested copies of some 350,000 pages, many of which,
in whole or in part, are now to be found on the internet, where
they are free to place them.
2. THE TERMS
UNDER WHICH
THEY ARE
HELD
The files are held pursuant to a provision,
set out at paragraph VII.D of the Consent Judgment settling the
Minnesota proceedings, that British-American Tobacco Company Limited
should maintain and operate the Guildford Depository for a period
of 10 years. Whilst the Consent Judgment was expressed to apply
only to Settling Defendants (which did not include either B.A.T.
Industries p.l.c. or British-American Tobacco Company Limited),
British-American Tobacco has nevertheless honoured the expectation
to open and maintain the Guildford Depository. The text of paragraph
VII.D is as follows:
"Defendant British-American Tobacco Company
Limited shall maintain and operate the Guildford Depository for
a period of 10 years. Defendant British-American Tobacco Company
Limited shall have the option of maintaining such a depository
at its current location or at an appropriate alternative location.
All documents, except those identified in Paragraph VII.A.3 above,
(ie Category II Trade secret documents) which were selected by
plaintiffs from the Guildford Depository in response to the Plaintiffs'
discovery requests shall be moved to and retained at the Minnesota
Depository."
In fact, copies of documents moved to the Minnesota
Depository have been retained in the original files in the Guildford
Depository to maintain their integrity.
3. THE
FORM THE
DOCUMENTS TAKE
The documents in the Guildford Depository are,
for the most part, copies of original files. Some documents are
in the form of microfilm and microfiche. The Depository also contains
a few videos and computer disks.
4. THE EXTENT
OF PUBLIC
ACCESS
The Depository is freely and readily available
to the public. The terms of public access are set out in the enclosed
document entitled "Guildford Depository Terms for Public
Access" [Appendix 1].
5. ANY RESTRICTIONS
PLACED ON
ACCESS TO
INDIVIDUAL DOCUMENTS
The Minnesota Consent Judgement excludes public
access to privileged documents and Category II trade secret documents
(relating to blends and formulae) [paragraph VII.A.1 and 3].
6. THE EXTENT
TO WHICH
STAFF WITH
PROFESSIONAL ARCHIVAL
TRAINING EMPLOYED
BY YOUR
COMPANY SUPERVISE
THE DOCUMENTS
We have nine people employed to operate the
Depository and to assist visitors to search for files, to provide
the files to the visitors, and to copy for visitors their selected
documents from the files. The staff also ensure maintenance of
the integrity of the files in the Depository.
7. THE NATURE
OF THE
INDICES TO
THE DOCUMENTS
As stated above, there is no document index
for the Guildford Depository. The Depository indices have been
created on a file by file basis. The indices exist in both paper
and electronic form. Our staff provide visitors with training
in how to use these indices.
Concerning the penultimate paragraph of your
letter, we are aware that for the purposes of its enquiry, the
Committee has the power to "send for persons, papers and
records" so that they can be made available for the assistance
of the Committee.
We understand that arrangements have been made
for the Committee to visit the Guildford Depository after their
visit to the British American Tobacco Research and Development
facility at Southampton on January 26. Our trained staff will
be on hand at the Depository to answer questions.
6 January 2000
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