A federal judge here today agreed to stop all action in the massive International Business Machines antitrust case for 10 days after an attorney for the corporation said a special committee of IBM directors urgently needed the time to review the case and make a recommendation to the full board of directors.
Chief Judge David N. Edelstein, who last month ordered IBM to turn over 5 billion documents from 120 countries, said he granted IBM's request because it appeared that the committee decision "might have immediate and significant impact" on the trial, which began four years ago.
During an unusual morning conference with Edelstein and Justice Department attorneys yesterday, IBM lead counsel Thomas D. Barr repeatedly refused to disclose to the court any infromation about the review under way at IBM, according to a transcript of the proceeding.
At one point, Edelstein commented that Barr's regusal to discuss IBM's activity put him "in a horrendous position" in deciding whether to grant IBM's request for the delay.
"Sorry, your honor, there is nothing I can tell you." Barr told Edelstein, according to the court record.
"I am not saying that I do not know but I am unable (to comment) because I am not free to do so," Barr said in refusing even to discuss the matter with Edelstein off the record.
"My client is making a decision . . .," Barr said according to the court record.
IBM asked the court for the adjournment in a letter dated June 29, four days after Edelstein ordered that IBM comply with a government subpoena for the 5 billion documents. The documents were requested by the government in connection with its cross-examination of IBM Chairman Frank T. Cary, who is to appear as a defense witness.
Initially, Barr asked for an adjournment until Aug. 1, so that the special committee, described only as five board members who are attorneys, could review the status of the case. According to court record, an IBM board meeting is scheduled for July 31. Delstein refused and Barr agreed to shorten his request to 10 days.
Yesterday Edelstein, who remarked that he had no facts about IBM's action, repeatedly prodded Barr for some "inkling" of what IBM was considering, according to the court record. Barr, however, made it clear that he was not free to discuss his client's activities.
According to the court record Edelstein said it was "unique" in his experience that a review committee - which he described as "heavyweight" - which in some way "will supersede, supplant (or) aid lead counsel and counsel for any particular client."
According to the court record Edelstein said it was "unique" in his expeparing to close its case although several witnesses including Cary are still scheduled to testify for IBM. At one point Edelstein commented that IBM could be seeking a settlement to the litigation but at another point in the hearing Barr said that there has been "no forward movement" towards a settlement from IBM's side.
Another possibility, Edelstein said, according to the court record, was that IBM might decide to refuse to comply with his order to turn over the huge amount of documents.
According to the court record Barr consistently avoided any comment on Edelstein's thoughts and at one point said that he was "concerned about what effect the release of the (court) record might have on the stock market . . ."
Barr went on to say that he wanted to make "very clear" that nothing he said should be taken as any indication of the issues the special committee "is considering or what the outcome may be."
Justice Department attorney Robert Staal objected to IBM's request and complained that it was vague. He said that three days after Edelstein's order that IBM turn over the documents related to Cary's testimony the government offered to expedite Cary's scheduled appearance and also "drastically would seek under the Cary subpoena."
Edelstein instructed the attorneys in the case ot return to thr court on July 19 at 9:30 a.m.