Date: Thu, 14 Oct 1999 23:20:46 -0600
During the early days of MDL 926, it became apparent that
Dow Corning had hired Judge Griffin Bell, a former. U.S. Attorney General to examine their troubling documents and to present
a report and recommendations.
Taken from Feb. 1993
"They promised to publicize the recommendations, thus earning
the reputation as a good guy who made mistakes, and was attempting to repair its slightly tarnished image. The impression
was that they were planning to place this all before this public."
"Chesley complained the Dow 'went out into the
streets' and interviewed people, imparting the same information that it was now attempting to shield to third parties who
have no privileged relationship with the manufacturer. Two such recipients of the information were the company's only share
holders, Dow chemical and Corning Co. Chesley's argument invoked the research which was so well prepared by Elizabeth Cabrasser's
Law Committee. This was that there is no privilege between a corporation and its shareholders. The sharing of information
with shareholders constitutes a waiver of privilege which is presumed to have existed prior to that communication."
PSC's position, as is clearly established by all the case law in point, is that the waiver has already occurred. An analogy
was made to the fact that a GM shareholder had no right to privileged materials. By the act of imparting information to Corning
and DowChem, Dow Corning waived the privilege."
"Chesley informed the court, that of all the Griffen Bell documents,
we presently have 7000. Bell's written report with its findings was to be made public. Mathis was the original plan, but it
never happened. The public has yet to learn the actual information."
"Sheila Birnbaum, of New York's Skadden Arps
argued that the Court should focus on Dow Corning's intent in engaging the study. Ms. Birmbaum claimed that there was no such
documents that show a publicity scheme. She argued that the affidavits of Judge Bell and General Counsel Jenkins are uncontested,
and establish an attorney/client relationship."
Judge Pointer stated:
"The court ruled that Dow has a right to
assert the privilege to the Griffen Bell documents as it claims. However, the mere fact that he made this ruling should not
be confused with the issue of whether showing the report to the shareholders does or does not constitute a waiver. He told
the parties that he is concerned about this aspect of the waiver, and that he has not addressed the issue yet, but will. He
stated that it is a difficult issue, and that as an MDL judge, he has to look at the issues as a judge in each US District
in the USA. He informed the parties that he may need additional discovery on the issues of who received the reports of Dow