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APHA Scientific Session and Event Listing

Sara D. Guardino, JD, Tobacco Control Resource Center, Northeastern University School of Law, 102 The Fenway, Cushing Hall Suite 117, Boston, MA 02115, 617-373-2026, sara@tplp.org

The attorney-client privilege was created to assure that a client could speak openly and honestly with an attorney without fear that such communications later could be disclosed. This privilege, however, is not absolute and applies only to situations in which a client seeks or receives legal advice from an attorney. Simply passing otherwise unprivileged client documents through the hands of an attorney does not immunize those documents from production. Despite the privilege's limitations, however, the tobacco industry has claimed in litigation that documents containing no request for or giving of legal advice to the industry client are privileged – such as documents containing the results of scientific studies unfavorable to the industry. The industry apparently has based many of its privilege claims on the simple fact that an attorney reviewed a particular document or that a document was stamped “attorney-client privileged.” Such prolific abuse of the privilege was uncovered in the State of Minnesota's suit against the industry, and the court ordered the production of thousands of documents that the industry had claimed were privileged – documents that are now publicly available. As a result of that case and others, the public health community now has access to critical documents that inform it more fully about smoking's harms. Furthermore, such documents assist plaintiffs in smoking and health cases that, if successful, force changes in industry behavior toward the betterment of public health. It is therefore essential that the industry's privilege claims continue to be challenged so that such positive strides can continue.

Learning Objectives: At the conclusion of the session, attendees will be able to

• Recognize the fact that the tobacco industry has abused the attorney-client privilege to hide critical information from the public and to gain advantage in litigation.
• Appreciate that challenges to the industry’s privilege claims in litigation can result in positive outcomes for plaintiffs that will, in turn, force changes in industry behavior and thus positively impact the public health.
• Articulate the need to continue challenging the industry's privilege claims.

Keywords: Tobacco Policy, Tobacco Litigation

Presenting author's disclosure statement:

Not Answered