A federal appeals court today sharply questioned both sides in a dispute of high importance to cigarette makers as well as smokers: whether a judge was right or wrong to rule that the Constitution gives the public "a right to know what the tobacco industry knew and knows about the risks of cigarette smoking and what it did or did not do with regard to that knowledge."
U.S. District Judge H. Lee Sarokin handed down the ruling July 17 in Newark in a smoker's death case in which damages are sought from the Liggett Group Inc., Philip Morris Inc., and Loew's Theatres Inc. Loew's is the successor to P. Lorillard Inc.
The defendants have produced hundreds of thousands of documents, including some that they say could be "taken out of context and left unexplained," leaving the companies open to "embarrassment, oppression and apparent incrimination."
Arguing that the ruling should be overturned, Murray H. Bring of the Washington law firm of Arnold & Porter told the Third U.S. Circuit Court of Appeals that Sarokin had made "a fundamental error of law" in invoking the First Amendment's protection of freedom of speech.
Bring's client is Philip Morris, but he and Donald C. Cohen, of Webster & Sheffield in New York City, argued for all three companies as well as the Tobacco Institute Inc. Cohen's client is Liggett.
By contrast, Marc Z. Edell of Morristown, N.J., argued for the plaintiff that Sarokin had been absolutely correct in making "a presumption in favor of free speech" in a case pitting commercial privacy against the public interest in knowing of the industry's knowledge of such matters as the health effects of smoking.
The arguments lasted 80 minutes -- exactly twice as long as the time originally alotted by Judges A. Leon Higginbotham Jr., Edward R. Becker and Walter K. Stapleton.
All three judges rained questions on the lawyers while giving no indication as to which of several possible courses of action they might take. These courses include upholding or reversing Sarokin, modifying his opinion and sending it back to him for new proceedings.
Each side argued that certain Supreme Court and Third Circuit rulings supported its argument -- and each side was met with skeptical questioning from the bench. Similarly, each side met tough questioning whether arguing the pros or cons of a variety of other issues, such as whether the case is properly before the appeals court and whether Edell would be free to disseminate the documents at issue to the press and to other lawyers suing tobacco companies.
"It was a pleasure to argue with a court that was so well prepared," Cohen said afterward.
"It's tough to argue before these judges," Edell told a reporter.
The dispute began March 25, when Robert E. Cowens, the magistrate presiding over pretrial discovery in the case, issued a sweeping so-called protective order.
The order -- similar to others in cigarette product liability legislation -- provided that "all information produced or exchanged in the course of this civil action or any appeal arising therefrom . . . shall be used solely for the purpose of this case" and shall be returned or destroyed after trial.
The principal effect of Cowens' order was to put the burden on the plaintiffs to show that any pretrial document claimed to be private could be shared with other plaintiffs' lawyers or the public.
In striking down the order, Judge Sarokin shifted the burden while exempting documents "which are truly secret," such as marketing strategy.
But the companies' "part, if any, in concealing or misrepresenting information regarding the risks of smoking is not entitled to such protection," Sarokin wrote.
He said that Cowens' order "interferes with the First Amendment in that it extends protection to all discovered materials and imposes upon plaintiffs the obligation to move for their release from the prohibitions of the order.
"To impose such a threshold requirement upon a single plaintiff against a giant industry diminishes the First Amendment rights of others who should have access to such information," Sarokin said.