United States of America v Philip Morris Inc. & Ors

Orders giving effect to foreign letters of request must provide assistance within the limits of the Evidence (Proceedings in other Jurisdictions) Act 1975, while maintaining a fair balance between the requesting court and the witness.

A blanket privilege objection may justify refusing an examination only in the clearest case, where the evidence shows that no question of substance could be answered. Privilege ordinarily should be determined as specific questions arise. Legal advice privilege requires a confidential communication between lawyer and client made for the dominant purpose of obtaining or giving advice about legal rights and obligations. Litigation privilege requires litigation to be a real likelihood, not a mere possibility.

A letter of request must seek evidence for use at trial, rather than oral discovery or investigation. If its scope is mainly investigatory and cannot readily be confined, the examination should be refused.

The United States sought orders under letters of request issued by the United States District Court for the District of Columbia for the examination of Andrew Foyle, a former solicitor to companies in the British American Tobacco group, and Martin Broughton, formerly chairman of BAT plc.

BATCo intervened to assert privilege in relation to Mr. Foyle’s evidence. Mr. Foyle opposed examination on privilege and oppression grounds. Mr. Broughton opposed examination on the basis that the request was vague, oppressive and an impermissible investigatory exercise.

The central issues were whether the requested evidence was protected by legal advice or litigation privilege, whether the examinations would be oppressive or amount to oral discovery, and whether the letters of request could properly be given effect under the Evidence (Proceedings in other Jurisdictions) Act 1975.

1. The application for Mr. Foyle’s examination was granted, subject to protective directions. The examination was to be conducted by English counsel before a judge of the court. BATCo could attend and raise privilege objections as particular questions were asked.

2. A blanket assertion of privilege did not justify refusing the order. Although the court could refuse an examination where it was satisfied that every question of substance would be met by a proper refusal, that was an exceptional course and was not established here. The subjects identified in the letter of request included matters which might be privileged and matters which might not be.

3. Legal advice privilege required: (i) a communication between lawyer and client; (ii) confidentiality; and (iii) the dominant purpose of obtaining or giving legal advice about the client’s rights and obligations. The solicitor’s own description of the purpose was not conclusive. Communications concerning legal rights, disclosure and privilege were likely to be protected, but advice about organising and implementing a document review could not be classified without considering the particular communication and circumstances.

4. Litigation privilege required confidentiality and a dominant purpose of conducting or advising on pending or contemplated litigation. Litigation was reasonably in prospect only where circumstances made litigation against the relevant person or class a real likelihood rather than a mere possibility. General concern that future litigation might occur was insufficient. Communications prepared for litigation involving the client could attract privilege, but communications relating merely to litigation between third parties did not necessarily do so.

5. Publication of documents to the public at large could destroy confidentiality and privilege in those documents. It did not automatically destroy privilege in related communications. Waiver and the scope of any loss of confidentiality were matters better decided when specific questions were asked. The court also held that the United States could not raise allegations of iniquitous conduct in the examination without cogent new evidence.

6. The application for Mr. Broughton’s examination was refused. The court must reject a request that was mainly investigatory, even if the witness might possess relevant and admissible evidence, unless the improper areas could be excluded without undue difficulty. The request’s broad and time-unlimited descriptions of corporate relationships, control, research, marketing, litigation position and reorganisations could not be confined or redrafted fairly by the court.

First-instance decision. No appellate history is stated in the judgment.