IN THE SUPREME COURT OF FLORIDA. No. SC RESPONDENTS' UNOPPOSED MOTION FOR LEAVE TO FILE COUNTERPART BRIEFS IN HYPERLINKED CD-ROM FORMAT 1

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1 IN THE SUPREME COURT OF FLORIDA HOWARD A. ENGLE, M.D., et al., v. Petitioners, LIGGETT GROUP, INC., et al., No. SC Respondents. / RESPONDENTS' UNOPPOSED MOTION FOR LEAVE TO FILE COUNTERPART BRIEFS IN HYPERLINKED CD-ROM FORMAT 1 Pursuant to Fla. R. App. P and for the Court's convenience, undersigned respondents request leave to file their answer brief on the merits and petitioners' initial and reply briefs on the merits in hyperlinked CD-ROM format (a procedure followed in this case in the Third District, with that court's permission). The contents of the hyperlinked briefs will be identical to those of the paper briefs filed with the Court but will add an electronic link for every record item and legal authority cited in the briefs. The links will give the Court instant access to a complete image of every cited record item and every cited legal authority. Respondents submit that the hyperlinked format will materially assist the Court in 1 This motion is submitted by all respondents other than Liggett and Brooke. 1

2 this case, particularly given the enormous size of the record, and will not prejudice any party. In addition, and for the same reasons, respondents request leave to submit copies of the hyperlinked briefs (both respondents' and petitioners') that were accepted by the Third District in this case (the "DCA briefs"). In this Court, both petitioners' initial brief and respondents' answer brief refer to the parties' DCA briefs. The DCA briefs provide hyperlinks to further portions of the massive record (as well as all legal authorities cited in the DCA briefs). Respondents propose to file copies of the hyperlinked DCA briefs for this Court's use. Petitioners have no objection to this motion. In further support thereof, respondents state: 1. Although petitioners have not yet filed their reply brief, their initial brief and respondents' answer brief already cite thousands of pages of record materials in their accompanying appendices and cite hundreds of cases and other legal authorities. Petitioners' reply brief presumably will add further record cites and case cites. 2. The hyperlinked briefs can be used in any standard personal computer with a standard CD-ROM drive. All required software will be included in the disks submitted to the Court. 2

3 3. The hyperlinked briefs provide instant images of all cited record materials and all cited legal authorities. The images can be viewed on the computer's screen or printed out on any printer attached to the computer. 4. In the Third District, the parties filed their briefs in hyperlinked form (along with traditional paper copies), with that court's permission. Respondents engaged the firm that transferred both sides' briefs and paid for the transfer. Petitioners supervised the process of transferring their brief to hyperlinked form and approved the finished product. Respondents propose to follow the same procedure here. 5. If this motion is granted, an affidavit will be submitted to the Court with the hyperlinked briefs attesting to the completeness and accuracy of the results. 6. Submission of hyperlinked briefs is consistent with appellate rules and practices. For example, since 1999, this Court has required that electronic copies of briefs be submitted with each filing. See In re Mandatory Submission of Briefs on Computer Diskette, Administrative Order (Fla. 1999), available at < (requiring submission of digital versions of paper briefs). Electronic briefs allow the Court to perform word searches and other functions that are laborious or even impossible with paper briefs. Although the Court's 1999 order does not require the filing of hyperlinked 3

4 electronic briefs, hyperlinks simply take electronic briefs one step further. That one step, however, will offer enormous assistance to the Court, given the size of the record involved in this appeal. 7. In view of the utility of hyperlinked briefs, state and federal courts have begun to promulgate rules permitting and encouraging the filing of such briefs. See, e.g., Rule 31-5, U.S. Court of Appeals for Eleventh Circuit (allowing submission of electronic briefs without court order in any case not involving pro se parties); McKinney's New York Rules of Court, Rules of Appellate Practice (counterpart filings on "interactive compact disk" are "allowed and encouraged" either by consent of the parties or on motion to the court). Hyperlinked briefs have been filed with courts both inside and outside the State of Florida. As two commentators explain: Since the first CD-ROM brief filing in 1997, the use of CD-ROM briefs has become more pervasive and is continuing to rise. This certainly will increase in the coming years. Recent high-profile appeals using CD-ROM briefs include Microsoft s antitrust litigation in the U.S. Court of Appeals for the District of Columbia Circuit and the Oklahoma City bombing trial in the U.S. Court of Appeals for the Tenth Circuit. The 11th Circuit also has used CD-ROM briefs in both the Bush election recount and the Elian Gonzalez cases. Harris & Kroger, CD-ROM: Briefing of the Future is Coming at a Click of a Mouse Near You, 70 Def. Counsel J. 371 (July 2003); see also Humana Health Ins. Co. v. Chipps, No. 4D (4th DCA); Gilchrist v. State Farm Mut. Auto. Ins. Co., No. 1:00CV66 (MMP) (N.D. Fla. 2001); In re Berg, 43 U.S.P.Q.2d 1703 (Fed. 4

5 Cir. 1997); Glendale Federal Bank, FSB v. United States, 43 Fed. Cl. 390 (Fed. Cl. 1999); Merck & Co. v. SmithKline Beecham Pharmaceuticals Co., 1999 WL (Del. Ch. 1999); Aluminum Co. of Am. v. Aetna Cas. & Surety, 998 P.2d 856 (Wash. 2000). 8. The record in this case dwarfs the records in most if not all of the other cases cited above. The trial in this case took place over two years and generated a transcript of nearly 60,000 pages. The entire record on appeal comprises 686 volumes and approximately 120,000 pages (not including numerous exhibits, which are not consecutively paginated). As one commentator has noted: "Any litigation with a lengthy trial record and the need to pinpoint certain text references from voluminous exhibits can be made far less tedious... if the appendices are digitized and incorporated on a CD-ROM, all linked together with the brief." Devin, CD-ROM Briefs: Are We There Yet, 2 J. App. Prac. & Process 377, 391 (2000). 9. Pursuant to Florida Appellate Rule 9.300(a), undersigned counsel has contacted petitioners' counsel and is authorized to represent that petitioners' counsel has no objection to this motion. WHEREFORE, respondents request leave to file (1) hyperlinked versions of petitioners' and respondents' briefs on the merits in this Court, and (2) copies of the 5

6 hyperlinked briefs already submitted by petitioners and respondents in the Third District. Respectfully submitted on behalf of Philip Morris USA Inc.; Lorillard Tobacco Company; Lorillard, Inc.; R.J. Reynolds Tobacco Company; Brown & Williamson Tobacco Corporation, individually and as successor by merger to The American Tobacco Company; Council for Tobacco Research-U.S.A., Inc.; and The Tobacco Institute, Inc. SHOOK, HARDY & BACON L.L.P. Attorneys for Philip Morris USA Inc. Miami Center, Suite South Biscayne Boulevard Miami, Florida Telephone: (305) Facsimile: (305) By: Norman A. Coll Florida Bar No

7 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was served by hand delivery on petitioners' counsel and by U.S. Mail on all other counsel on the attached Service List this day of July, By: Norman A. Coll 7

8 Engle, M.D., et al. v. Liggett Group, Inc. et al. Service List Stanley M. Rosenblatt, Esq. Susan Rosenblatt, Esq. STANLEY M. ROSENBLATT, P.A. 12th Floor - Concord Building 66 West Flagler Street Miami, FL Telephone: (305) Fax: (305) (Counsel for Appellees) James T. Newsom, Esq. SHOOK, HARDY & BACON 2555 Grand Boulevard Kansas City, MO Telephone: (816) Fax: (816) / (Co-counsel for Lorillard, Inc., Lorillard Tobacco Company) Kenneth J. Reilly, Esq. SHOOK HARDY & BACON, L.L.P. Miami Center, Suite S. Biscayne Boulevard Telephone: (305) Fax: (305) (Co-counsel for Lorillard, Inc., Lorillard Tobacco Company) Melvin Spaeth, Esq. David Eggert, Esq. ARNOLD & PORTER th Street, N.W. Washington, DC Telephone: (202) Fax: (202) (Co-counsel for Philip Morris USA Inc.) Robert C. Heim, Esq. Joseph P. Archie, Esq. DECHERT PRICE & RHOADS 4000 Bell Atlantic Tower 1717 Arch Street Philadelphia, PA Telephone: (215) Fax: (215) (Co-counsel for Philip Morris USA Inc.) Dan K. Webb, Esq. Stuart Altschuler, Esq. WINSTON & STRAWN 35 West Wacker Drive Chicago, IL Telephone: (312) Fax: (312) (Co-counsel for Philip Morris USA Inc.)

9 Norman A. Coll, Esq. SHOOK, HARDY & BACON L.L.P Miami Center 201 S. Biscayne Boulevard Telephone: (305) Fax: (305) (Co-counsel for Philip Morris USA Inc.) Stephen N. Zack, Esq. BOIES SCHILLER & FLEXNER 100 S.E. Second Street, #2800 Telephone: (305) Fax: (305) (Co-counsel for Philip Morris USA Inc.) Arthur J. England, Jr., Esq. David L. Ross, Esq. Elliot H. Scherker, Esq. GREENBERG TRAURIG 1221 Brickell Avenue Telephone: (305) Fax: (305) (Co-counsel for Lorillard, Inc., Lorillard Tobacco Company) James A. Goold, Esq. COVINGTON & BURLING 1201 Pennsylvania Avenue, N.W. Washington, D.C Telephone: (202) Fax: (202) / (Co-counsel for Tobacco Institute) Renaldy J. Gutierrez, Esq. Kathleen M. Sales, Esq. GUTIERREZ & ASSOCIATES 601 Brickell Key Drive, Suite 201 Telephone: (305) Fax: (305) (Counsel for The Tobacco Institute, Incorporated) James R. Johnson, Esq. Diane G. Pulley, Esq. JONES DAY 1420 Peachtree Street, N.E. Suite 800 Atlanta, GA Telephone: (404) Fax: (404) (Co-counsel for R.J. Reynolds Tobacco Company) Benjamine Reid, Esq. Wendy F. Lumish, Esq. CARLTON FIELDS 100 S.E. 2nd St, Suite 4100 Telephone: (305) Fax: (305) (Co-counsel for R.J. Reynolds Tobacco Company) Robert H. Klonoff, Esq. JONES, DAY, REAVIS & POGUE 51 Louisiana Avenue, N.W. Washington, DC Telephone: (202) Fax: (202) (Co-counsel for R.J. Reynolds Tobacco Company)

10 Michael Fay, Esq. Aaron Marks, Esq. KASOWITZ BENSON TORRES & FRIEDMAN 1633 Broadway, 22nd Floor New York, New York Telephone: (212) Fax: (212) (Co-counsel for Liggett Group Inc., Brooke Group Holding Inc.) Kelly A. Luther, Esq. CLARKE SILVERGLATE CAMPBELL WILLIAMS & MONTGOMERY 799 Brickell Plaza, 9th Floor Telephone: (305) Fax: (305) (Co-counsel for Liggett Group Inc., Brooke Group Holding Inc.) Alvin B. Davis, P.A. STEEL HECTOR & DAVIS LLP 200 South Biscayne Blvd Telephone: (305) Fax: (305) (Co-counsel for Liggett Group Inc., Brooke Group Holding Inc.) Gordon Smith, Esq. Richard A. Schneider, Esq. Barry Goheen, Esq. KING & SPALDING 191 Peachtree Street Atlanta, GA Telephone: (404) Fax: (404) (Co-counsel for Brown & Williamson Tobacco Corporation/The American Tobacco Company) Anthony N. Upshaw, Esq. ADORNO & YOSS, P.A S. Bayshore Drive, #1600 Miami, FL Telephone: (305) Fax: (305) (Co-counsel for Brown & Williamson Tobacco Corporation/The American Tobacco Company) Joseph P. Moodhe, Esq. DEBEVOISE & PLIMPTON 919 Third Avenue New York, NY Telephone: (212) Fax: (212) (Counsel for The Council for Tobacco Research-U.S.A., Incorporated)

IN THE SUPREME COURT OF FLORIDA. No. SC VERIFIED MOTION FOR DAN K. WEBB TO APPEAR PRO HAC VICE

IN THE SUPREME COURT OF FLORIDA No. SC03-1856 HOWARD A. ENGLE, M.D., et al., Petitioners, v. LIGGETT GROUP, INC., et al., Respondents. VERIFIED MOTION FOR DAN K. WEBB TO APPEAR PRO HAC VICE Pursuant to