The judge in the Eastman Kodak Co. antitrust case has asked the U.S. Attorney's office here to investigate possible criminal perjury on the part of a former partner in the law firm which represented Kodak - Donovan, Leisure, Newton & Irvine. The involvement of the law firm in the possible perjury was also part of the referral.
The action came to light in transcripts unsealed by federal Judge Marvin F. Frankel and forwarded to the U.S. Attorney late last week.
The transcripts relate to key documents that surfaced late in the civil antitrust case brought by Berkey Photo Co. against Kodak after a Donovan, Leisure partner swore in an affidavit these documents had been destroyed.
Mahlon Perkins Jr. the former Donovan, Leisure senior partner, resigned from the firm on March 20 after admitting that the affidavit he gave earlier in the case was not true.
Kodak has since announced it will drop Donovan, Leisure for purposes of an appeal in the case, which saw a jury award Berkey $113 million in damages after it concluded that Kodak had illegally monopolized segments of the amateur photography market.
Kodak said it was replacing the firm because of a potential "conflict of interest," indicating it may use the firm's behavior as grounds for appeal.
The disclosure that the documents were not destroyed came when the final witness for Kodak was on the stand. Yale economics Professor Merton Peck, and helped to undermine his credibility.
Judge Frankel, in the newly unsealed transcripts, referred to actions to "conceal that perjury over many months while the court and opposing counsel were steadily and continuously misled and burdened by the resulting confusion and misapprehension of the affected circumstances."
John Doar, the former chief counsel for the House Judiciary Committee which pressed the case for former President Nixon's impeachment, was Kodak's chief trial counsel in the case. He swore that he had no knowledge of the non-destruction of the documents until informed by Perkins over the culminating weekend of testimony.
Frankel told Doar he believes his assertion, but also expressed doubt about "the effort of Mr. Perkins to monopolize the blame."
The judge told Doar he wanted "to raise the question squarely with you whether a sufficient discharge of responsibility had been accomplished here in the failure of yourself and everybody else to dig into this passing strange situation with Mr. Perkins and to fail in any way, shape or form to bring it to light before that pathetic and sorrowful confession he made here with (his attorney) at his side a week ago."