Tracking tobacco's paper trail Attorney general's suit yields millions of pages from state, industry

October 13, 1997|By Scott Shane | Scott Shane,SUN STAFF

It is an immensely profitable enterprise that aggressively advertises an addictive product to a vulnerable public.

The tobacco industry, says the state of Maryland.

The Maryland Lottery, says the tobacco industry.

As cigarette companies prepare their defense in the state's tobacco lawsuit, they are demanding virtually every piece of paper ever produced by or about the state lottery, its marketing practices, its alleged addictive nature and exploitation of the poor.

And every piece of paper about the state government's decades-long promotion of tobacco farming. And every piece of paper about the millions in cigarette taxes that have plumped state budgets. And much, much more.

Eventually a judge will have to rule on the relevance of what might be called the tobacco companies' Maryland-is-a-hypocrite defense -- that gambling can lure people to ruin just as nicotine can, and that the state profits from the smoking it decries.

But as it casts its net for legal ammunition, the tobacco industry has demanded government files on an unprecedented scale.

The state's 2-acre document depository in Jessup nearly overflowed last week, because disposal of outdated paperwork had been halted all summer so tobacco lawyers could review a freight-car load of papers. From the state Department of Agriculture to the hospital for the criminally insane, more lawyers are poring over more files, trying to determine their relevance to what may end up as the most massive, highest-stakes civil litigation in Maryland history.

"The biggest civil cases in the past have been savings and loans, and asbestos," says Carmen M. Shepard, top deputy to Attorney General J. Joseph Curran Jr. and one of the state's key legal strategists. "I had a hand in both of those, and I think this is going to be bigger."

To the public eye, Maryland's tobacco lawsuit may appear to be on hold. Not due for trial until 1999, it still could be pre-empted by a national settlement.

But behind the scenes, legions of lawyers, paralegals and photocopy clerks are working furiously on what legal jargon optimistically calls the "discovery" phase of the litigation. They are combing warehouses of paperwork as far away as England, tracking down tobacco whistle-blowers or industry-friendly scientists and sparring in court over reciprocal accusations of foot-dragging and cover-up.

Maryland filed suit against the tobacco companies in May 1996, seeking billions of dollars for treatment of smoking-related illnesses under the Medicaid program.

To finance the Medicaid lawsuit in the face of the tobacco industry's reputation for scorched-earth legal tactics, Curran retained Baltimore attorney Peter G. Angelos, whose firm is to receive 25 percent of any recovery. Angelos also has filed a separate class action suit on behalf of ailing Maryland smokers.

If Congress ultimately approves some variation on the proposed $368.5 billion national settlement announced in June, federal legislation would resolve Maryland's suit and those filed by 39 other states. Industry lawyers even offered to put discovery in Maryland on hold for now.

But Curran turned down that offer. "We don't know what's going to happen in Washington, and we have to be prepared to try this case," he says.

So the legal armies skirmish on. In the 2-foot-thick civil court file are some uncivil exchanges.

"Your objections are so broad and pervasive as to reflect either a stonewalling disposition with regard to the information, an ostrich-like view of the nature of the case, or both," George A. Nilson, a lead attorney for the tobacco companies, wrote in May to E. David Hoskins, a lawyer in the Angelos firm.

Hoskins fired back: "Let me begin by setting the record straight: To date the state of Maryland has produced 6,930 pages of documents to the defendants. The defendants have produced 0 pages."

Those paltry thousands of pages have since turned out to be just an hors d'oeuvre. Now the tobacco lawsuit has spawned a modest paperwork industry.

In the State Records Management Center, the climate-controlled Jessup warehouse storing 360 million pages of documents, hundreds of boxes with labels such as "Anne Arundel 1992 Addiction Case Records" and "Calvert Manor Nursing Home" are stacked for review.

"We're hurting right now," Paul C. Lamberson, the records center manager, said last week, with 20,000 boxes of documents preserved beyond their scheduled recycling date. "This is the largest hold on documents we've ever had."

The requested documents are copied and stored on CD-ROM using a state-of-the-art Xerox machine leased for $100,000 and operated 12 hours a day by two clerks. It is installed in Angelos' office building at One Charles Center, where the eighth floor has become a war room for the tobacco plaintiffs.

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