Criminal contempt charges were filed yesterday against a former senior partner of the law firm which represented Eastman Kodak in the Berkey Photo civil antitrust suit for allegeldy withholding documents that he claimed to have destroyed.
The highly unsual action was brought by theU.S. attorney in Manhattan against Mahlon Perkins Jr., 60, formerly with the firm of Donovan, Leisure, newton & Irvine "for making false statements to a federal district court judge and filing a false affidavit during the course of pretrial proceedings."
Perkins allegedly withheld an entire suitcase of documents that Berkey's counsel - Parker, Chapin, Flatau & Klimpl - had requested as part of the pretrial discrovery process. The lawyer, in an affidavit to the court, claimed the documents no longer existed.
The documents pertained to the testimony of a Kodak expert witness. And the subsequent disclosure of their existence by chief Kodak outside counsel John Doar in the final days of the trial came as the witness - Yale economics professor Merton Peck - was on the stand and helped to undermine his testimony with the jury.
The jury last March found Kodak guilty of monopolizing some portions of the amateur photography market and awarded Berkey $113 million in damages. This was subsequently reduced by the judge to $81.4 million.
Berkey's counsel, in his summation to the jury, used the withholding incident and referred to it as "that sordid spectacle of dissembling, evasiveness, deception and concealement!"
Doar apologetically called the incident "a very unfortunate circumstance, an uncontradicted circumstance, a simply incredible circumstance."
U.S.attorney Robert Fiske said yesterday that his office had conducted a comprehensive probe into the matter since presiding trial judge Marvin E. Frankel referred it to his office and concluded that "no criminal charges against any other individuals were warranted by the facts disclosed during the investigation."
Attorneys for Perkins had no comment on the charges.
Perkins is scheduled to be arraigned this Thursday when he must show cause why he should not be held in criminal contempt for his conduct. If convinced, Perkins can either be fined or imprisoned, according to the discretion of the court, the maximum sentence,however, cannot exceed five years.