Day 024 - 15 Sep 94 - Page 25
1 available, they might have chosen to do so. If they found
2 it would in the long run hurt them, they might have chosen
3 not to. It is not at all remarkable that they would put
4 money into that effort. It is a relatively standard
5 process, especially for companies the size of McDonald's,
6 to engage in test marketing of various promotional
7 activities, including putting out their brochures and
8 promoting themselves as leaders in the industry.
9
10 MS. STEEL: In terms of the third paragraph about the
11 agreement with the New York Attorney General being
12 voluntary, do you know how that agreement came about?
13 A. That was the culmination of the discussions I alluded
14 to earlier between the New York Attorney General and
15 McDonald's.
16
17 MR. RAMPTON: My Lord, I am not sure this is evidence this
18 witness can give. It sounds very much to me as hearsay.
19
20 MR. JUSTICE BELL: Were you aware that there had been an
21 agreement with the New York Attorney General?
22 A. Yes, my Lord, we were quite aware of that.
23
24 Q. Were you aware of a joint release by McDonald's and the
25 New York Attorney General?
26 A. I am now aware because I have seen it recently in
27 preparation for my testimony today; whether I was at that
28 time, I could not tell you. I was aware that McDonald's
29 and New York were in negotiations prior to the agreement
30 and then the announcement thereof.
31
32 Q. Let me explain what I think the basis of Mr. Rampton's
33 query is. In so far as Mr. Gardner was told anything by
34 someone who we might reasonably suppose was acting on
35 behalf of McDonald's, he can say that. If he has
36 information from something like a press release, for
37 instance, a joint press release by McDonald's and the
38 Attorney General of New York, if there was one, subject to
39 anything Mr. Rampton says, he can refer to that because
40 that is in the common fund of knowledge. What he cannot
41 refer to and relate, save in certain exceptional
42 circumstances, is just what someone else not acting on
43 behalf of McDonald's has told him.
44
45 MS. STEEL: What about where he is working in conjunction with
46 another office?
47
48 MR. JUSTICE BELL: He can refer to it as evidence of the fact
49 that he was told it, but he cannot bring it in as evidence
50 of the truth of what he was told. That is what we call
51 hearsay evidence. The reason is that it is generally
52 thought to be unreliable because Mr. Rampton, for
53 instance, cannot test the informant by cross-examining
54 him, quite apart from other reasons.
55
56 If there is something specifically you have in mind and
57 you want to ask a question about it and you think it may
58 break that rule, you can always ask me what I make of it.
59
60 MS. STEEL: It was something I asked Mr. Horwitz anyway.
