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.

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