The problem concerns to devise a strategy so these reports and documents may not be not available to the plaintiff.
STRATEGY: As evident from the above problem, the main concern of the company is that these reports and documents should not be available to the plaintiff for proving the allegation against the company. This can be done by adopting the strategy of 'Retention of the Documents' and by the privilege. The case of Rolah Ann McCabe v British American Tobacco Australia can serve as a guideline to adopt these strategies as the said case demonstrated successfully that through these strategies documents harmful to the company mighty be retained (destroyed) or declared privileged so the plaintiff or the court may not require these documents to exhibit for inspection, to avoid any legal ruling. These policies are discussed below separately to view their implications and results. Let us begin with examining the case of McCabe v. BATAS in brief and the strategies adopted.
Rolah Ann McCabe v British American Tobacco Australia: The fifty-one year old plaintiff had lung cancer which she alleged had been caused by smoking the defendant's cigarettes over approximately four decades. She sued the defendant for damages arising from the defendant's negligence related to the marketing and sale of their cigarettes. The trial judge ordered that the defence of the defendant tobacco company be struck out and that judgment be entered for the plaintiff. He criticized the defendant for its failure to comply with discovery orders that had been made during the proceeding. BAT was unable to comply with this court order to produce documents because it had over a period of years prior to Mrs. McCabes's action destroyed large quantities of documents. These documents had been destroyed pursuant to what the company called a document retention policy. The trail judge found that the so-called document retention policy was in fact a document destruction policy intended to ensure that the document would not be available for use in any future litigation against the company. The trial judge also found that as a result of the defendant's pre-commencement destruction of documents, the plaintiff had been deprived of the possibility of a fair trial.
BAT appealed successfully. The Court of Appeal ruled that destruction of documents prior to commencement of legal proceedings could only result in striking out the destroyer's claim or defence if the destruction amounted either to an attempt to pervert the course of justice (or, if open, contempt of court) (British American Tobacco Australia Services Limited v. Cowell (as representing the estate of Rolah Ann McCabe, deceased)  VSCA 197, para, 173).
1. DOCUMENT MANAGEMENT POLICY: Legal advisers for BAT played a central role in the development of the company's document management policies and strategies. The trial judge stated:
"I have no doubt that the document retention policy which was put in place did have some quite legitimate management and administrative purposes and benefits, and the documents contained much material relevant to such functions. I am, however, entirely satisfied that the primary purpose of the