But the outcome of these lawsuits shouldn’t just be about money. As litigation against the tobacco industry in the 1990s has shown, the most important thing that must emerge is the truth.
Lawsuits against the tobacco industry have obvious parallels to the court battles today. State and local litigation against Big Tobacco led to increasingly strong settlements in Mississippi, Florida, Texas and Minnesota, followed by the Master Settlement Agreement with the remaining states. Beyond financial penalties, these settlements imposed some modest restrictions on tobacco industry marketing such as ending the use of billboard advertising, limiting sports sponsorship and making it harder for the industry to do brand placement of tobacco products in movies. Even today, settlements require Big Tobacco to pay states to defray the costs of tobacco-caused diseases, amounting to $162 billion so far, but with less than 7 percent of that money going to programs designed to reduce tobacco use.
In contrast, the information that attorneys general (and, subsequently, others) revealed through the discovery process has had far-reaching impacts. At the time of the litigation, industry lawyers aggressively fought against disclosing court documents, but then-Minnesota Attorney General Hubert H. Humphrey III persisted. After multiple trips to the Supreme Court, he obtained 35 million pages of documents, which were placed in warehouses in St. Paul, Minn., and Guildford, England.
When cases are settled, it is normal practice in litigation to destroy or return documents produced during discovery. But Humphrey insisted this would not happen in his fight against Big Tobacco. He maintained that the most important thing to come out of this litigation will be the truth, embodied in those discovery documents.
Breaking with established practice, Humphrey refused to settle until the tobacco company defendants agreed to open the St. Paul and Guildford depositories to the public. The industry resisted mightily, but it eventually agreed to Humphrey’s terms at the last possible moment.
The precedent set in the Minnesota case was followed in all subsequent litigation against the tobacco industry. The 1998 Master Settlement Agreement, which settled the litigation in the remaining states that had not yet settled their suits, also included document disclosure and extended it to all smoking and health litigation through 2010.
Building upon my work with the University of California at San Francisco’s library to put an initial collection of documents I had received anonymously from “Mr. Butts” on the Internet, the Master Settlement Agreement also created the American Legacy Foundation (now called the Truth Initiative), which provided money for the library to expand its initial website of tobacco documents based on the Mr. Butts documents and provide public access to all the documents released in the Minnesota case and subsequent litigation.
In addition, the federal government brought a case against the tobacco companies under the federal Racketeer Influenced and Corrupt Organizations Act (RICO), resulting in the 2006 court order for the industry to continue releasing documents produced in smoking and health litigation through 2021.
As a result, the online UCSF collection now has more than 90 million pages. It includes almost 15 million tobacco industry documents, with more added every month. This publicly available collection has been accessed by more than 7 million users since it was launched in 2002 and has led to 1,059 scientific publications, media reports, documentaries and government papers that have changed the social and political environment around the tobacco issue.
In 2015, we expanded these efforts to create an Industry Documents Library, adding new collections on the drug industry (including opioids), the chemical industry, the food industry and the fossil fuel industry. But these new collections are tiny compared with the millions of documents that are being produced in litigation against the opioid and fossil fuel industries.
To maximize the public benefit of litigation efforts, it is imperative that state attorneys general and others prosecuting these cases follow Humphrey’s lead and make public commitments now that none of these cases, including opioids and global warming, will be settled unless the defendants agree to release documents produced in these lawsuits, and that, as in the fight against Big Tobacco, settlements include funds to make these documents freely available to the public in perpetuity.
The lawyers must fight not just for money, but for truth.