Playing for keeps? Tobacco litigation, document retention, corporate culture and legal ethics

Abstract

The Rolah McCabe case, in which a woman dying of lung cancer unsuccessfully sued a tobacco company, has led to reforms in criminal law, the law of evidence, and legal conduct rules in Australia. McCabe exposed British American Tobacco’s policies of ‘document retention’ which led to the destruction of damaging evidence before litigation commenced. This article considers how the legislative responses to McCabe could affect the process of litigation against large corporations and the conduct of those corporations. Given the integral role of lawyers, both in-house and external, in the ‘document retention’ policies and the process of discovery, it will also examine the implications for legal ethics. Finally, it will canvas some other strategies that might prevent a repeat of the McCabe disaster.