To commit, suborn or conceal perjury, even in a civil lawsuit, is reprehensible. If the President of the United States committed or suborned perjury in the Paula Jones case, he may be forced to resign even if he cannot be impeached. But there are thousands of perjured statements every year in American civil jurisprudence, and they are very rarely punished-which raises the following problem:
Is it worse to commit perjury about sex with an intern, or about the cause of automobile fuel-tank fires that have killed hundreds of men, women and children?
That question became relevant on March 1, when a South Carolina attorney named J. Kendall Few sent a letter and a package of documents to the U.S. Attorney in Columbia, S.C. The documents lay out in detail Mr. Few’s accusation that “the crime of obstruction of justice has been committed in this jurisdiction by Kenneth W. Starr” in his private role as an attorney for General Motors Corporation.
Specifically, Mr. Few alleges that Mr. Starr helped conceal evidence that a G.M. engineer perjured himself repeatedly in cases brought by victims of the company’s exploding fuel tanks.
The evidence cited by Mr. Few emerged in a Florida case that dates back to 1991, when a teenage boy named Shane McGee burned to death in an Oldsmobile station wagon whose fuel tank ruptured in a rear-end collision. A lawsuit brought against G.M. by McGee’s family is now on trial in Fort Lauderdale, Fla.
One of the key exhibits against G.M. is the “Ivey report,” named for company engineer Edward Ivey, who calculated whether safer fuel systems would be a worthwhile investment. Mr. Ivey’s equations indicated that at a cost of only $2.40 per car, the car giant would be better off financially by paying off plaintiffs at an average cost of $200,000 per life. Those figures are in 1973 dollars, which is when Mr. Ivey prepared the memo.
Not surprisingly, the Ivey memo has been a hot item ever since plaintiffs’ lawyers in one of the cases against G.M. first discovered it years ago. In more than a dozen lawsuits since, the company and its lawyers have argued that the Ivey memo is not only inflammatory and prejudicial, but irrelevant because it was written by Mr. Ivey on his own initiative and never shown to anyone else at G.M. Or so Mr. Ivey testified.
But while preparing the McGee case, the family’s lawyers learned about a retired G.M. engineer named Ronald Elwell who was prepared to testify that the Ivey report had been distributed to him and others in G.M. management. Mr. Elwell was also ready to say under oath that Mr. Ivey had told him the report was intended to guide G.M. in deciding “how much [the company] could spend on fuel systems.”
Enter Kenneth Starr. Last year, a law partner of Mr. Starr at the Washington firm Kirkland & Ellis went to the Supreme Court to prevent Mr. Elwell from testifying in the McGee case, citing a confidentiality agreement between him and G.M. They lost, and Mr. Elwell’s testimony in Florida was devastating to Mr. Ivey’s credibility.
But in recent days, lawyers for the McGees have found evidence that may be just as damaging to G.M. and its lawyers, including Mr. Starr: an interview with Mr. Ivey by G.M. attorneys in 1981, and a legal memo concerning the “Ivey report” from the following year.
The record of the G.M. lawyers’ 1981 interview with Mr. Ivey suggests how worried they were about the engineer’s cost-benefit analysis: “Obviously, Ivey is not an individual whom we would ever, in any conceivable situation, want to be identified to the Plaintiffs in a [post-collision fuel-fed fire] case,” the lawyers for G.M. warned, “and the documents he generated are undoubtedly some of the potentially most harmful and most damaging were they were to be produced [in court].”
Indeed, both the 1981 and 1982 documents seem to confirm Mr. Elwell’s testimony. According to Mr. Few, the very existence of the two memos indicates that all of G.M.’s lawyers, including Mr. Starr, “would have been fully aware of the existence and extent of Mr. Ivey’s prior perjury.”
Mr. Starr has expended considerable time and effort over the past few years to keep all of these documents safe from subpoena by plaintiffs’ lawyers, as Mr. Few points out. Technically, those papers are attorney-client communications and therefore are “privileged.” Mr. Starr spent much of 1994 appearing before judges in South Carolina to keep the 1981 memo under wraps.
But Mr. Few insists that in Mr. Starr’s efforts to suppress the Ivey documents, he went beyond attorney-client privilege, which doesn’t protect efforts to lie and cover up. “It is absolutely inconceivable,” wrote the South Carolina litigator, who is fighting a separate but related G.M. fuel-tank case there, “that Mr. Starr … did not fully appreciate the fact that he was the key figure in General Motors’ successful … obstruction of justice by concealing Mr. Ivey’s 13-plus years of prior perjury.”
The McGee family has rejected a settlement offer by G.M. They and their attorneys seem to want something more than just money. Perhaps they are seeking what Mr. Starr has so often declared is his only objective: the truth.