United States

The plaintiff, on behalf of a deceased person who smoked for 40 years, brought claims against the tobacco industry for personal injury and product liability.   During discovery, the plaintiff requested documents produced by the research institute established by the tobacco industry in order to develop evidence to protect the industry from future litigation regarding the health dangers of smoking.  The industry tried to keep many of the research institute’s documents out of the litigation by claiming the documents were subject to attorney-client privilege.  A review by a special magistrate agreed that the documents should be privileged.  The judge presiding over the case then reversed the magistrate’s decision and ordered the documents to be produced with an opinion damaging to the tobacco industry.  The tobacco industry appealed to the Third Circuit Court of Appeals, through an extraordinary procedure, to reverse the lower court’s holding that the "crime fraud" exception applied to documents they claimed were privileged, thus requiring those documents to be available in the litigation. In this opinion the appellate court reverses the lower court’s requirement to produce the documents and grants the industry’s request to appoint a new judge for the case because of the appearance of bias on the basis of the trial court judge’s opinion.