U.S. Discovery of European Union and U.S. Leniency Applications and Other Confidential Investigatory Materials

Samuel Miller, Kristina Nordlander, James Owens, Mar 16, 2010

An issue of growing importance in global competition law is the risk that materials produced pursuant to one foreign sovereign’s confidential investigations or proceedings will later be subject to civil discovery in the United States. In many jurisdictions, in particular in the European Union (“EU”) and United States, aggressive cartel enforcement has been significantly aided by programs offering leniency to cartel participants. Key to these programs are promises by antitrust enforcers that potentially incriminating documents or oral statements submitted to them by cartel participants will be protected from disclosure in other jurisdictions or proceedings. Indeed, the globalized nature of many modern cartels had made such leniency and confidentiality programs critical—and arguably indispensable—to anti-cartel prosecution.

However, news that the European Commission (“Commission”) or the U.S. Department of Justice’s Antitrust Division (“DOJ”) is conducting an investigation often prompts the filing of civil class action suits in the United States. Counsel for plaintiffs in these private antitrust actions often seek discovery of materials submitted by defendants to the EU or other foreign jurisdictions. Accordingly, U.S. courts are increasingly faced with resolving a fundamental conflict between the liberal scope of U.S. discovery and sovereign promises that certain information or evidence would remain confidential. Because resolving this conflict requires a case-by-case analysis under doctrines such as international comity, litigants and sovereigns alike are faced with uncertainty. Nevertheless, the outcome of recent proceedings has generally favored the preservation of confidentiality against U.S. civil discovery demands.

This article will summarize recent case developments and court rulings addressing the issue of whether documents provided in confidence to the Commission or DOJ will be subject to discovery in private antitrust actions in the United States.