In competition complaint matter before EC Commission, U.S. Supreme Court holds that target of complaint is "interested person" under 28 U.S.C. Section 1782 on international judicial assistance and that Congress did not intend to impose foreign-discoverability limitation as bar to obtaining documents in records of federal court where target was litigant
As urged by the Commission on International Rules of Judicial Procedure (CIRJP), and part of an effort to improve judicial assistance between the United States and foreign countries, Congress in 1964 completely revised 28 U.S.C. Section 1782(a). This farseeing provision had long authorized federal courts to offer judicial assistance to other nations without any treaty or other guarantee of reciprocity.
The modern version of Section 1782(a) provides that a federal district court "may order" a person residing or found in the district to give testimony or produce documents "for use in a proceeding in a foreign or international tribunal ... upon the application of any interested person." [The 1964 overhaul of Section 1782(a) had taken out the prior law's words, "in any judicial proceeding pending in any court in a foreign country." (Emphasis added by Court.)]
In October 2000, Respondent, Advanced Micro Devices, Inc. (AMD), filed an antitrust complaint against petitioner here, Intel Corporation (Intel), with the Directorate General for Competition (DGC) of the EC Commission. The charge claimed that Intel had violated European competition laws, allegedly by abusing its dominant position in the European market such as through loyalty rebates, exclusive purchasing agreements with manufacturers and retailers, price discrimination, and standard setting cartels.
Upon receiving a complaint, or sua sponte, the DGC preliminarily looks into alleged violations of EU competition laws. The DGC may not only take into account the information provided by a complainant, but it may also look for information from a complainant's target. Its investigation leads to a formal written decision on whether to pursue the complaint. If the DGC decides not to proceed, the complainant may appeal its decision to the Court of First Instance (CFI) and, ultimately, to the Court of Justice for the European Communities (ECJ).
When the DGC does pursue a complaint, it typically serves the investigation's target with a formal "statement of objections". The target has the right to a hearing before an independent officer, who files a report of it to the DGC. Once the DGC makes its recommendation, the whole Commission may either dismiss the complaint or decide to hold the target liable and impose sanctions. Upon an adverse ruling, the complainant may secure a review of the Commission's final action in the CFI and the ECJ. Since a "complainant" does not have formal "litigant" status in Commission proceedings, the above procedural rights bear importantly on this case.
Here, the DGC turned aside AMD's recommendation to seek the documents Intel had turned over in a private antitrust suit in an Alabama federal court. AMD next petitioned a California federal court under Section 1782(a) for an order directing Intel to produce those documents. The District Court concluded that Section 1782(a) did not authorize such discovery.
The Ninth Circuit reversed and remanded with instructions to rule on the application's merits. On certiorari, the U. S. Supreme Court affirms. It holds inter alia, that Section 1782(a) empowers but does not mandate the district court to provide document discovery to AMD on these facts.
First of all, the Court declares that a complainant before the Commission, such as AMD, qualifies as an "interested person" within Section 1782(a)'s purview. The Court rejects Intel's contention that this phrase applies only to litigants, to foreign sovereigns, or to a sovereign's designated agents. To support its reading, Intel points to Section 1782's caption, which reads "[a]ssistance to foreign and international tribunals and to litigants before such tribunals" (emphasis added). A statute's caption, however, cannot undo or limit the plain meaning of its text. Section 1782(a) plainly reaches beyond the universe of persons designated "litigant."
Moreover, the assistance that AMD asked for meets Section 1782(a)'s limiting language: "for use in a foreign or international tribunal." The Commission qualifies as a "tribunal" when it acts as a first instance decisionmaker. Both the CFI and the ECJ are tribunals, of course, but they are not fact finders; the law limits their review to the record made before the Commission. Hence, AMD could "use" evidence in those reviewing courts only by submitting it to the Commission in the current, investigative stage. In adopting the CIRJP recommendations noted above, Congress opened the way for judicial assistance in foreign administrative and quasi judicial proceedings. This Court would not be justified in excluding the EC Commission, to the extent that it acts as a trial-type decisionmaker, from Section 1782(a)'s ambit.
Under the statute, the "proceeding" for which discovery is sought under Section 1782(a) must be within reasonable contemplation, but need not be "pending" or "imminent." The Court rejects Intel's argument that the Commission investigation launched by AMD's complaint does not qualify for Section 1782(a) assistance. The 1964 revision deleted the prior law's reference to "pending"matters. The 1964 legislative history corroborates Congress' recognition that judicial assistance would be available for both foreign proceedings and investigations.
To resolve the conflicts in the Circuits on this point, the Court holds that Section 1782(a) does not impose a "foreign discoverability" stricture. It is true that Section 1782(a) expressly shields from discovery matters protected by legally applicable privileges; but nothing in Section 1782(a)'s text confines a district court's power to order production to materials discoverable in the foreign jurisdiction if located there. Nor does the legislative history suggest that Congress wanted to lay down such a blanket restriction.
Intel raised two policy arguments in support of a foreign discoverability limitation on Section 1782(a) aid: (1) refraining from giving offense to foreign governments, and (2) maintaining procedural equality between litigants. Noting that comity and equality factors may be proper criteria for a district court's exercise of discretion in particular cases, the Court explains that they do not cabin the scope of the statute.
"We question whether foreign governments would in fact be offended by a domestic prescription permitting, but not requiring, judicial assistance. A foreign nation may limit discovery within its domain for reasons peculiar to its own legal practices, culture, or traditions reasons that do not necessarily signal objection to aid from United States federal courts. [Cites] A foreign tribunal's reluctance to order production of materials present in the United States similarly may signal no resistance to the receipt of evidence gathered pursuant to Section 1782(a). See South Carolina Ins. Co. v. Assurantie Maatschappij "De Zeven Provincien" N.V., [1987] 1 App. Cas. 24. (House of Lords ruled that nondiscoverability under English law did not bar litigant in English proceedings from seeking assistance in U. S. under Section 1782)."
"When the foreign tribunal would readily accept relevant information discovered in the United States, application of a foreign discoverability rule would be senseless. The rule in that situation would serve only to thwart Section 1782(a)'s objective to assist foreign tribunals in obtaining relevant information that the tribunals may find useful but, for reasons having no bearing on international comity, they cannot obtain under their own laws." [Slip op. 12]
"Concerns about maintaining parity among adversaries in litigation likewise do not provide a sound basis for an across the board foreign discoverability rule. When information is sought by an "interested person,' a district court could condition relief upon that person's reciprocal exchange of information. [Cites] Moreover, the foreign tribunal can place conditions on its acceptance of the information to maintain whatever measure of parity it concludes is appropriate."
"We also reject Intel's suggestion that a Section 1782(a) applicant must show that United States law would allow discovery in domestic litigation analogous to the foreign proceeding. Section 1782 is a provision for assistance to tribunals abroad. It does not direct United States courts to engage in comparative analysis to determine whether analogous proceedings exist here. Comparisons of that order can be fraught with danger. For example, we have in the United States no close analogue to the European Commission regime under which AMD is not free to mount its own case in the [CFI] or the [ECJ] but can participate only as complainant, an "interested person,' in Commission steered proceedings. [Cite]." [Id.]
To this point, no court has ruled on the merits of whether Section 1782(a) assistance is proper in this case. To guide the lower court on remand, the Court mentions some factors bearing on that question.
"First, when the person from whom discovery is sought is a participant in the foreign proceeding (as Intel is here), the need for Section 1782(a) aid generally is not as apparent as it ordinarily is when evidence is sought from a nonparticipant in the matter arising abroad. A foreign tribunal has jurisdiction over those appearing before it, and can itself order them to produce evidence. [Cites] In contrast, nonparticipants in the foreign proceeding may be outside the foreign tribunal's jurisdictional reach; hence, their evidence, available in the United States, may be unobtainable absent Section 1782(a) aid."
"Second, as the 1964 Senate Report suggests, a court presented with a Section 1782(a) request may take into account the nature of the foreign tribunal, the character of the proceedings underway abroad, and the receptivity of the foreign government or the court or agency abroad to U.S. federal court judicial assistance. [Cite]"
"Further, the grounds Intel urged for categorical limitations on Section 1782(a)'s scope may be relevant in determining whether a discovery order should be granted in a particular case. Specifically, a district court could consider whether the Section 1782(a) request conceals an attempt to circumvent foreign proof gathering restrictions or other policies of a foreign country or the United States. Also, unduly intrusive or burdensome requests may be rejected or trimmed. [Cites]." [Slip op. 13]
At this juncture, the Court declines Intel's suggestion that it exercise its supervisory authority to adopt rules barring Section 1782(a) discovery here. Any such effort should await further experience with Section 1782(a) applications in the lower courts. Several aspects of this case remain largely unexplored. While Intel and its amici are worried that granting AMD's application in any part may end up disclosing confidential information, encourage "fishing expeditions," and undermine the Commission's program offering prosecutorial leniency for admissions of wrongdoing, no one has suggested that AMD's complaint to the Commission is pretextual. Nor has Intel shown that Section 1782(a)'s preservation of legally applicable privileges and the controls on discovery available under Federal Rule of Civil Procedure 26(b)(2) and ( c) would be ineffective to prevent discovery of Intel's confidential information. The Court leaves it to the courts below, applying closer scrutiny, to assure enough of a revelation to determine what, if any, assistance is appropriate.
Citation: Intel Corporation v. Advanced Micro Devices, Inc., No. 02-572, 2004 WL 1373133 (U.S. June 21, 2004).
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