Day 258 - 07 Jun 96 - Page 33


     
     1        Mr. Fairgrieve how easy it is to replicate what happened
     2        before, whether the faxes he had and threw away can be
     3        reproduced.
     4
     5   MR. JUSTICE BELL:  Let me just ask Ms. Steel and Mr. Morris
     6        what, if anything, they want to say about this so far as
     7        formal discovery is concerned.
     8
     9   MS. STEEL:   Well, I would like to say that as far I can see it
    10        is not a matter of discovery.  If the Plaintiffs produce a
    11        document with calculations on, with figures on, which they
    12        want to rely on, it is actually their obligation to give
    13        over the basic material from which those calculations were
    14        made.  We had this on a previous occasion when Mr. Wheelock
    15        did charts about the number of calories and fat, and things
    16        like that, in the food.  The Plaintiffs had to provide the
    17        background information from which those calculations were
    18        made, and the same when our witnesses wanted to make
    19        calculations.  So, as far as I can see, that is what the
    20        situation is.
    21
    22   MR. JUSTICE BELL:  It does not exist any longer unless
    23        Mr. Fairgrieve has been untrue.  And there is a difference
    24        here in that it was not really a question of discovery
    25        here, it was a question of mine, and it came from me
    26        originally, and not either from you or Mr. Morris or
    27        Mr. Rampton, as to whether he could transfer the
    28        percentages into numbers of people.
    29
    30   MS. STEEL:   No.  The thing is, I do not think it is a matter of
    31        discovery.  I think it is a matter of, if the Plaintiffs
    32        make calculations they have an obligation to give the basic
    33        figures from which they made those calculation so that they
    34        can be independently checked.
    35
    36   MR. JUSTICE BELL: But it is either discoverable or not, I cannot
    37        force them to give the figures.  If they do not at the end
    38        of the day, you can say ignore all these figures because we
    39        have not had a chance to check them.
    40
    41   MS. STEEL:   We can, but the point is that it is their
    42        obligation to do so.  Mr. Fairgrieve has actually said it
    43        would be quite easy to get the figures again.  It is my
    44        understanding that these are all on a database.  The whole
    45        point of a database is that you are able to print out
    46        various categories of information, and the ones I think
    47        will be particularly useful is that of the 60,000 people
    48        who were surveyed how many people said that they ate out,
    49        and how many never ate out, how many people ate at
    50        McDonald's and how often they ate at McDonald's and, as 
    51        I understand it, Mr. Fairgrieve said they would be willing 
    52        to do it, and I do not really see the problem. 
    53
    54   MR. JUSTICE BELL:  I know, but I do not think I can order them
    55        to do it.  I do not think the mere fact that they produced
    56        an end calculation means that I can order them to produce
    57        what has followed in between.  If they choose not to the
    58        sanction may be that the end figure I treat as unreliable
    59        because you have not had an opportunity to countercheck
    60        it.  What I will say is that on the basis, as I understand

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