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Where There's Smoke ...

by Eric Francis

From September/October 1994 issue of Sierra

Perhaps it was a mistake, or maybe it was leaked -- but somehow, a 22-page Westinghouse Electric evidence-destruction plan found its way into the hands of attorneys suing the company. Signed by Jeffrey Bair, an in-house Westinghouse lawyer, and Wayne Bickerstaff, an industrial-hygiene manager, the proposal boldly recommends the destruction of "smoking gun" evidence that might be used against the corporation in PCB and related litigation - litigation the writers say "shows no signs of abating in the near future."

"The majority of the documents in Industrial Hygiene's files are potential 'smoking gun' documents," they write. "The files are filled with technical information which critiques and criticizes, from an industrial-hygiene perspective, Westinghouse manufacturing and nonmanufacturing operations. This documentation oftentimes points out deficiencies in Westinghouse operations and suggests recommendations to correct these deficiencies. The files contain many years of employee test results, some of them unfavorable.... In our opinion, the risks of keeping these files substantially exceed the advantages of maintaining the records."

Westinghouse attorneys testifying in a Texas case, including Bair himself, said that the memo was only a draft. "The decision was made not to implement this at all," says Westinghouse spokesperson Jay McCaffrey.

Yet other evidence in the record contradicts this assertion. "Informed Wayne to begin discarding documents," says a March 2, 1988, note on Bair's letterhead. On March 8, Bair writes that "Wayne Bickerstaff and his staff are currently discarding documents as per our retention guidelines."

When the evidence-destruction proposal surfaced in asbestos-related litigation in Texas in November 1992, Westinghouse fought to keep it out of the record, claiming that because it was co-signed by a lawyer, it was an "attorney-client work product" and therefore privileged. But Judge Paul R. Davis ruled that the document "described a plan to commit fraud on the courts of this nation," and was thus admissible as evidence.

Asked under oath what the words "smoking gun" meant to him, Bair's boss, Ronald Lawrence, responded, "If you're asking me with regard to a television program, I assume that it means right after a probable murder was created, somebody found the gun still smoking.... I know that phrase is used in this memorandum, but it didn't have that kind of content or meaning from the television program. What I understood it to mean... was the kind of document from which an attorney such as yourself could try to draw some inferences adverse to Westinghouse."

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