In a stunning development that could stop the 10-year-old government antitrust case against the International Business Machines Corp. dead in its tracks, the computer giant called today for Judge David Edelstein to withdraw himself from the case, alleging he has shown "bias and prejudice."
The legal bombshell was dropped in an early morning session in the judge's robing room, at which IBM submitted an extraordinary 2,000-page attack on the judge's objectivity.
As part of the attack, IBM filed an affidavit from five prestigious IBM directors, including two former cabinet officials, a governor, an ambassador, and the chairman of one of the world's largest industrial corporations supporting Edelstein's removal from the case.
After being handed the sharply worded nine-volume attack on the 70-year-old Edelstein's credibility, chief prosecutor Robert Staal said, "I am shocked, I am speechless."
Edelstein's only comment was that he would "reserve any comment for a later time." Later, he would add only that the IBM filing "will be dealt with appropriately and expeditiously."
The IBM filing specifically calls on Edelstein to take himself off the decade-long case, which he has presided over for seven years, including four years of trial, based on IBM's "conclusions that...Edelstein has a personal bias and prejudice against defendant (IBM) and in favor of plaintiff (tnited States)."
Addressing the question of why it waited seven years to accuse the judge of prejudice, IBM stated in an affidavit that "what in the past we saw as extremely vexatious and wrong-headed actions by Chief Justice Edelstein may now, we believe, be seen as strong indications of bias and prejudice."
The five IBM directors who filed were: former Transportation Secretary William Coleman Jr.; former Secretary of Housing and Urban Development Carla Hills; former Pennsylvania governor, congressman and u.s. ambassador to the United Nations William Scranton; Dutpont Co. Chairman Irving Shapiro (a former Justice tdepartment antitrust attorney along with Edelstein); and former U.S. ambassador to France John Irwin II.
The IBM filing adds up to be one of the most comprehensive and documented attacks ever levied against a federal judge.
It also is unprecedented in that it was filed a decade into what is already the longest civic case in history. Usually, such motions are filed before the trial opens. In order to file at this stage, IBM had to state that Edelstein's alleged bias stems from an "extrajudicial source," that is, a source outside the case.
IBM charged that "Eidelstein's personal, extrajudicial bias and prejudice against IBM...has led him to abandon his role as an impartial trier of fact and adjudicator of law.... He has taken virtually every measure within his power to buttress and promote the prosecution and to restrict, harass and punish the defense."
IBM outlined several specific areas of alleged prejudice on the part of the judge. They include:
Edelstein's recent decision to allow the government extensive new discovery, requiring, according to IBM, 62,000 man-years to retrieve about 5 billion documents.
IBM claimed that decision was only the latest of several anti-IBM rulings by Edelstein.
While edelstein has consistently denied IBM discovery motions, reportedly because they were too broad and would slow the trial down, the company said, "he has repeatedly enforced (the government's) rights to insist on compliance with unreasonably burdensome document subpoenas."
IBM accused Edelstein of being "singularly abusive," of IBM's witnesses, "with his questioning conducted in a loud voice, frequently accompanied by angry scowls and gestures." IBM contended that Edelstein "has repeatedly taken over the questioning of IBM witnesses, conducting his own cross-examination in the midst of IBM's direct examination."
"Moreover," the company claimed, "Edelstein has persistently - over 1,200 times - interrupted the answers of IBM's witnesses."
To support its allegation, IBM quoted several of its witnesses' comments about Edelstein. One, Stanford University Business School Dean Arjay Miller, said, "from the very outset, (the chief judge's) questions were hostile and intimidating. Instead of seeking out the truth, it seemed that his primary objective was to discredit me and my testimony."
The company also alleged that Edelstein "has secretly made alterations to and deletions from the trial transcript."
There were dozens of other allegations of unfair treatment in the IBM papers. IBM's chief counsel, Thomas Barr, pointed out when he filed the documents today that, under the rules of law, Edelstein must accept the statements in the affidavit as true since the lawyers who submitted them are officers of the court. He then must decide if those facts are enough to justify his removal. And he must act on the filing before the case can continue.
If Edelstein refuses to remove himself from the case, legal sources say IBM could attempt to appeal that decision to the appellate courts - a difficult action to sustain - or wait until the end of the trial for a traditional appeal. If he does rule himself out, the longest case in history may have to start again from square one. The alternative would be to make the new judge read 10 years worth of transcripts (nearly 100,000 pages) motions, exhibits and decisions and pick up where Edelstein left off. CAPTION: Picture, JUDGE DAVID EDELSTEIN...under fire from IBM