As the long-awaited trial gets under way, a British lawyer is once more in the thick of things. In 1990 Andrew Foyle, a partner at the London firm of Lovell White Durrant, wrote to his client British American Tobacco (BAT). According to lawyers for the US Department of Justice, the “Foyle Memorandum” expressed his concerns about complying with document discovery requests in smoker lawsuits and made it clear that document destruction had been taking place.

Lovell and Foyle are not accused of wrongdoing. His memo has already been used in evidence in an Australian court but tobacco lawyers have fought hard to keep it from appearing in America.

The case against the tobacco giants was instigated by President Bill Clinton using the Racketeer Influenced and Corrupt Organisations (Rico) statute. Among the defendants are all the big cigarette firms, including BAT and Philip Morris, maker of Marlboro.

Judge Gladys Kessler will decide whether the memo can be used in evidence. In June, she accused BAT of “dilatoriness and delay”, saying BAT’s conduct in postponing the memo’s release was “so inexcusable that any privilege it might have is deemed waived”. Arguments about the memo are scheduled for September 27 — six days after the trial date for the underlying case.

BAT’s delaying tactics may have angered the judge but legal experts said her decision on whether the memo is admissible is too close to call.

BAT argues that the Foyle memo is subject to legal privilege on the grounds that it is a document drawn up solely for the purpose of obtaining legal advice. Such documents can be legally sacrosanct, though there are exceptions. A BAT spokeswoman said it was always company policy to defend any document covered by privilege.

The Foyle memo may make or break the case but, ironically, of the big tobacco firms, BAT has the least to lose as its American business is small.

Richard Painter, law professor at the University of Illinois, said many documents had shown the tobacco industry seeking advice on “how to represent the safety of tobacco to consumers in the best possible light”.

He said the Foyle memo is unique because it is recent and appears to relate to how the company should deal with documents — some of which are quite old — in such a way as to minimise the chance of disclosure on negative information.

Destruction of documents may have serious consequences. Arthur Andersen, once one of the world’s leading accountants, was in effect closed down for its role in shredding documents after Enron’s collapse.

In August the American government said in a court brief that the Foyle memo relates directly to allegations that BAT, with other tobacco companies, “took steps to destroy, suppress or otherwise shield from discovery its internal research documents concerning smoking and health”.

Chris Bostic, general counsel for Action on Smoking and Health (Ash), said the size of the case makes it hugely significant. Settlement talks between the American government and the industry seem to have reached a standstill. Bostic said this implied that either the government was not prepared to settle at a price the industry felt it could pay or that the tobacco lawyers are very confident of their case. Only time will tell.

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