# Appendix — In re Gulf Oil Corp > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1509%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1981 - **Citation:** 452 U.S. 904 ## Text SU"1586 5 arse No. IN THE Supreme Court of the United States OCTOBER TERM, 1980 IN RE GULF OIL CORPORATION and GULF MINERALS CANADA LIMITED APPENDIX TO PETITION FOR A WRIT OF MANDAMUS TO THE HONORABLE PRENTICE H. MARSHALL, JUDGE OF THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION ROBERT H. BORK 142 Huntington Street New Haven, Connecticut 06511 (203) 776-7662 Counsel of Record for Petitioners Of Counsel: CLARENCE QO. REDMAN KECK, MAHIN & CATE 8300 Sears Tower 233 South Wacker Drive Chicago, Illinois 60606 FRANK W. MORGAN RANDALL S. HENDERSON P.O. Box 1166 Pittsburgh, Pennsylvania 15230 PIT - cadinteiniall WILSON - Eres PRINTING Co.. INC. - 789-0096 - WASHINGTON. D.C. 20001 APPENDIX TABLE OF CONTENTS Page Excerpts from Transcript of Proceedings in U.S. District Court, N.D. Illinois (December 17, 1980).. la Joint Pretrial Order No. 20 (January 5, 1981).... 5a Excerpts from Transcript of Proceedings in U.S. District Court, N.D. Illinois (January 29, 1981).. 7a Joint Pretrial Order No. 22 (February 13,1981).. lla Memorandum Decision (November 7, 1979) .......... 18a Excerpts from Transcript of Proceedings in U.S. District Court, N.D. Illinois (March 26, 1980)...... 45a Memorandum of Government of Canada as Amicus Curiae, filed in U.S. District Court, N.D. Illinois I 46a Memorandum of Government of Canada as Amicus Curiae, filed in U.S. District Court, N.D. Illinois cnc cacecccncccnene 64a Memorandum of Government of Canada as Amicus Curiae, filed in U.S. District Court, N.D. Illinois Cy By 102a Letter from Australian Ambassador to U.S. Dis- trict Court, N.D. Illinois (May 25, 1979) .............. 126a Amicus Curiae Brief of Government of Australia, filed in U.S. District Court, N.D. Illinois (May 29, pe ON 130a Letter from South African Ambassador to U:S. District Court, N.D. Illinois (July 5, 1979) .......... 155a Memorandum of Government of South Africa as Amicus Curiae, filed in U.S. District Court, N.D. Tere Ce ee eee ..........-.......-................... 159a Amicus Curiae Brief of Government of United Kingdom, filed in U.S. District Court, N.D. Illi- nels (August & 1979) ............................. is 170a ii re adh APPENDIX TABLE OF CONTENTS—Continued Memorandum from Government of France to U.S. Department of State (October 27, 1978), filed in U.S. District Court, N.D. Illinois (June 8, 1979).. Representative Selection of Official Statements by rr Letter from U.S. Department of State to U.S. Department of Justice (May 17, 1980) ................ Letter from U.S. Department of Justice to Clerk of Seventh Circuit (March 18, 1980) .......000......... Letter from U.S. Department of Justice to Hon- orable Prentice H. Marshall (May 6, 1980) ........ Directives from Canadian Minister for Energy, Mines and Resources to Canadian Atomic Energy Sn I i es od ITT EN Opinion of the Supreme Court of Canada Denying Enforcement of Letters Rogatory (March 18, PUI cosirsatsdccuh dthpediatab dienicisccteeiastiic baa teat a cel gs kiaaiae Page 190a 197a 245a 249a 25la 258a * la APPENDIX A EXCERPTS FROM DECEMBER 17, 1980 TRANSCRIPT OF PROCEEDINGS IN NORTHERN DISTRICT OF ILLINOIS CASE NO. MDL 342, pp. 3-10 « * * - [8] THE COURT: Well, I think I am ready. I think that I am prepared to rule on every motion under Item 1 except the one that I suppose that you are all the most interested—not all the most interested in, but some the most interested in, and that’s sanctions. I haven’t got it for you but I do every other motion. * * . 7 [5] 1(d), (e) and (f), these are the multiple motions of Denison Limited, Denison U.S., Gulf, Gulf Minerals of Canada, Rio Algom, Getty, Noranda, and in a some- what different context but nonetheless raising many of the same questions, Item 1(1), Uranex’ position to dis- miss the TVA complaint, on the grounds of want of juris- diction, act of state, state compulsion and comity. As far as any pure jurisdictional arguments are [6] concerned, I think it is very clear, and I doubt that any lawyer in this room would dispute the proposition that foreign combinations or agreements are subject to the Sherman Act if they have an effect upon American commerce. The plaintiff is alleged—or the plaintiffs have alleged, and to the extent that I have been exposed to evidentiary materials in the case, there is evidence to support the allegation that the foreign defendants and their foreign activities did affect American commerce, and there is an allegation, and there is sufficient evidence at the present time to warrant submission to the jury the question of whether those activities constituted combinations and agreements in violation of Section 1 of the Sherman Act. 2a Indeed, the evidence which has been submitted on these various preliminary motions, totaily apart from the evi- dence which was submitted on the sanctions hearing, fills boxes—actually, ladies and gentlemen, there must be back in my chambers the equivalent of six or eight trans- fer cases of materials that have been submitted, not just on these but on other motions as well. There just is no doubt that to the extent that juris- diction is dependent upon the facts in the case, there are issues of fact here which cannot be resolved by motions to dismiss or motions for summary judgment. Insofar as Act of State is coricerned, it is my [7] judg- ment that with the exception of the Uranex situation, which concededly is somewhat different than the other defendants, that we are not concerned here with a ques- tion of Act of State. We are concerned rather with a defense of state compulsion. That defense raises ques- tions of fact. Two courts that have considered disputes akin to the ong that is now here have concluded that that defense raises issues of fact. I concluded that in the potash case, and I conclude it in this case. That defense will be submitted here under appropriate instructions to the jury, if there is evidence sufficient to submit that issue to the jury. I express no opinion now as to whether there will or will not be sufficient evidence to submit it to the jury, nor do I make any suggestion now that when the case is actually tried, that the plaintiff will adduce evidence sufficient to go to the jury on its theory. Much of the materials that have been submitted to me on these various motions have not been sifted through the adversary process of evidence objections. I have no feeling at all about as to how much of the— how much of the factual material which has been sub- mitted on the motions will ultimately be deemed ad- missible at the trial. — 8a {8} But on the papers that have been submitted, to the extent that there is Act of State in the case, I believe more state compulsion, that is an issue of fact which should go to the jury. Finally, arguments are made with respect to comity, that in the exercise of comity, I should—and the exercise of my discretion I should refrain from entertaining these cases. Gulf in its brief states that the continuation of this litigation will have adverse effects, and I quote now, “On a broad range of matters affecting the long-term economic and strategic well-being of this country, such as international balances of trade and inflation, NATO, and detente, and on short-term matters of great signific- cance, such as the Iranian hostage situation, the Olympic boyecott—” a bit out of date today, I realize—that’s my fault, not the briefwriters—“and the invasion—the Rus- sian invasion of Afganistan.” I don’t mean to, by the tone of my voice, to belittle either the importance of this litigation or the sincerity of the persons making those arguments. But, with all due respect, ladies and gentlemen, I do not believe that that [sic] the future of the crown teeters in the balance of this litigation. . This is tough litigation, represented and presented [9] by lawyers of extraordinary ability, but we will all get up tomorrow or the day after the verdict comes in in this case, and I assure you the sun will still be coming up in the East. I am cognizant of the fact that there is some dispieas- ure with this case, and indeed there is displeasure with my handling of the case. But that’s true of every case that every judge ever decides. Sometimes it’s a person that’s displeased with us, sometimes a corporation, sometimes it’s a city and its mayor, sometimes it’s a state and its governor. Some- times it’s even the President of the United States—not 4a in this particular litigation or in this particular court, but all of us can recall litigation within the last four or five, six years, in which the President of the United States was displeased. Our job as members of the American Judiciary, a job which we are given for life, if we pass the tests—why we take it, I don’t know, but we are given it for life— is to decide disputes. The Government has not asked us to stay our hand, save the one letter that I received, and which has been spread on the record with regard to the so-called proceedings. The Government of the United States initiated a crimi- nal prosecution in this matter. There are some who say that it was not very vigor- [10] ous, but nonetheless it brought to bear on the eco- nomic-social factual situation the entire weight of the United States Government as plaintiff in an anti—or in a criminal antitrust action. When that criminal prosecution was initiated, and was disposed of, by, I assume, a negotiated plea—in fact, I know it was from what little I have heard about it— this action was pending. And I can only construe the handling of the criminal prosecution in part to mean that the Government of the United States, the Justice Department, the Antitrust Di- vision of the Justice Department, was content that this problem be litigated, ventilated and adjudicated, in this private action. And it’s going to be. So those motions are denied. * a ” a 5a APPENDIX B IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION MDL 342 IN RE URANIUM ANTITRUST LITIGATION No. 76 C 3830 WESTINGHOUSE ELECTRIC CORPORATION, Plaintiff, Vv. Rio ALGOM LIMITED, et al., Defendants. Master File No. 342-A IN RE TENNESSEE VALLEY AUTHORITY URANIUM ANTITRUST LITIGATION URANIUM ANTITRUST LITIGATION JOINT PRETRIAL ORDER NO. 20 A pretrial conference having been held on December 17, 1980, and the Court having been duly advised by counsel, IT IS HEREBY ORDERED THAT: 6a 8. The following motions are denied, with the Court’s ruling having been delivered from the Bench: a. Motions of Gulf, GMCL and Rio Algom Corpora- tion against Westinghouse and TVA for summary judgment based upon act of state, comity and sov- ereign compulsion ; b. Motion of Denison Ltd. and Denison U.S. against Westinghouse and motion of Denison Ltd., against TVA for summary judgment based upon act of state and comity ; ce. Getty’s motion for partial summary judgment based on act of state grounds regarding Australia; d. Noranda’s motion to dismiss the Westinghouse and TVA complaints for failure to state a claim on act of state grounds. * * * * ENTER: /s/ Prentice H. Marshall United States District Court Judge Dated: January 5, 1981 7a APPENDIX C EXCERPTS FROM JANUARY 29, 1981 TRANSCRIPT OF PROCEEDINGS, MDL 342, NORTHERN DISTRICT OF ILLINOIS, pp. 112-116 [112] THE COURT: x * * * * With respect to the other motions for certification, I suppose the first leg of Section 1292 is on the Act of State, foreign compulsion question, is demonstrated by the varying arguments presented by the defendants seek- ing certification, that there is a ground for difference of opinion. I persist in my view that there are questions of fact raised by those motions, and that the record on them will not be complete until the case is tried. I invite the parties in their trial briefs to readdress the question. I invite them to submit instructions on [113] the question, and to debate the instructions on the question. But I am of the view that there are questions of fact as opposed to questions of law, and that the subject is not an appropriate one for certification until all of the evidence has been ventilated, and it will then be certified in the form of appropriate jury instructions, appropri- ate evidence rulings, and the final judgment that is en- tered, whichever way. In addition to that, Section 1292 enjoins me, I believe, to exercise my discretion. Interlocutory appeals, piecemeal appeals, are not fa- vored under our system. They are in other systems, but they are not under American law. And one of the rea- sons that they are not is that they always involve delay. This is not to say that the Court of Appeals would not act expeditiously. It is not to say that the subsequent 8a review by the Supreme Court would not be done expedi- tiously if there was a subsequent review. But the mere fact that the parties have to take time out and go about their business on other matters, and they are litigating in two courts, and the future of the ease in this Court is rendered uncertain—I know I sound like a broken record, ladies and gentlemen, but I have got to remind you again that this isn’t the only case I have got. It’s the biggest one I have got but it’s not [114] the only one I have got and I have to schedule my time accordingly. And I am not persuaded that an inter- locutory appeal on the issues of Act of State, foreign com- pulsion and comity would, in the language of the statute, materially advance the ultimate termination of the case. As I indicated in colloquy with counsel, I have a case here now, it has nine defaulted defendants, we are wait- ing for the damage prove up as to them. That damage prove up, as I understand the Court of Appeals’ opinion, is contingent upon what the jury does with respect to the other defendants. The case is ready to move ahead. The plaintiff wished to move it ahead. The parties took an appeal. I certified the question. The appeal was taken. Now, the plaintiff is told, ““You have to wait on those issues’. So be it. As I say, I have six counterclaims. I know that the defendants would be happy to withhold trial of their counterclaims pending review, but the fact of the matter is that there are six counterclaims. They have been brought by responsible counsel, and in the present con- text of this case they will have to be tried, regardless of the Act of State, foreign compulsion position. I have gome parties who say they want a bench trial. That’s minor in its impact on this overall question, [115] but we tentatively ventilated this morning some of the problems inherent in that position, how we are going to manage the case if I grant that motion. And we are enjoined by the statute, and the words were carefully chosen by the Congress—we are enjoined 9a by the statute to consider the ultimate termination of the case. And this case, as Mr. Tucker so eloquently points out, is a very, very complex case which has not been rendered any the less complex by these other factors that I have just mentioned—default, counterclaim, jury trials for some, bench trials for others, and so forth. And it is my firm conviction that the ultimate termi- nation of this case is best achieved by proceeding on the schedule that we have, and not incurring any risk of delay through interlocutory appeals. Much the same thing, Mr. Hertzell, is applicable, I be- lieve, to the Illinois Brick position. I will, as you have asked me, reconsider the briefs and the materials which you have submitted on reconsideration and take another look at the 42 million dollar issue, we will call it, because I think you are correct when you say that your position —your overall position really subsumed it. I will take another look at it and see. But I believe with respect to the overall Illinois Brick situation, that that is a matter, first of all, which [116] does seek, with all respect to you, sir, fractionalization of the plaintiff’s claim, and I also believe that it is a ques- tion best reserved for the presentation of the evidence in the case, the totality of the record in the case, and what I hope will be proper instructions in the case, and proper evidence rulings in the case, and a proper nar- rowing of the issues in the case, and so forth. I don’t look forward to spending a year with you ladies and gentlemen trying the case, and having it re versed, as happened to Judge Frankel. And I certainly want to tell you, I don’t think that I am any brighter or more capable than Judge Frankel. The Court of Appeals for the Second Circuit said he made a grave error in that case resulting in its reversal and remand. 10a But, as I said earlier in colloquy, every time you folks come into the courtroom and every time I come out here on the bench to try a case, and particularly a jury case, we live with the risk of error. There has never been a perfectly-tried case, and there never will be a perfectly- tried case. And piecemeal interlocutory appeals will not give us a perfectly-tried case. So with the exception of Mr. Millstein’s segment, and Mr. Hartzell’s 42 million dollar segment, the motions for reconsideration are all denied. lla APPENDIX D IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION - MDL 342 IN RE URANIUM ANTITRUST LITIGATION No. 76 C 3830 WESTINGHOUSE ELECTRIC CORPORATION, Plaintiff, vs. R10 ALGOM LIMITED, et al., Defendants. Master File No. 342-A IN RE TENNESSEE VALLEY AUTHORITY URANIUM ANTITRUST LITIGATION URANIUM ANTITRUST LITIGATION JOINT PRETRIAL ORDER NO. 22 A pretrial conference having been held on January 29, 1981, and the Court having been duly advised by counsel, IT IS HEREBY ORDERED THAT: 1. All motions by defendants in the Westinghouse and the TVA cases, except that of Uranex, for reconsidera- 12a tion or certification purusant to 28 U.S.C. 1292(b) of this Court’s Order denying their motion for summary judgment or dismissal of the complaints based on act of state, sovereign compulsion and lack of in personam ju- risdiction are denied. * * * * * ENTER: /s/ Prentice H. Marshall United States District Court Judge Dated: 2/13/81 13a APPENDIX E IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION MDL 342 IN RE URANIUM ANTITRUST LITIGATION No. 76 C 3830 WESTINGHOUSE ELECTRIC CORPORATION, Plaintiff, V. Rio ALGOM LIMITED, et al., Defendants. Master File No. 342-A IN RE TENNESSEE VALLEY AUTHORITY URANIUM ANTITRUST LITIGATION MEMORANDUM DECISION * On February 27, 1979, we entered Joint Pretrial Order No. 5 in an effort to narrow and ripen the issues sur- * We have delayed this ruling in the hope that the question here decided might be amicably resolved among the parties to these actions and the foreign governments involved (particularly Canada and Australia). See, Letter of Latham & Watkins to the Prime Minister and Minister of Energy, Mines and Resources of Canada, dated September 12, 1979. But our hope has turned to despair. This litigation must proceed. l4a rounding the parties’ discovery demands for documents located in foreign countries. We ordered that, by March 28, 1979, all parties should either comply with outstand- ing discovery demands for “foreign documents” or file restated objections to the production of such documents, including specific and particularized objections to de- mands for any such documents whose production was said to be forbidden by foreign law. The term “foreign documents” was defined to include all documents whose disclosure was in any way affected by foreign law. The responses of the parties were varied. Plaintiffs Westinghouse Electric Corporation (Westinghouse) and the Tennessee Valley Authority (TVA) raised no for- eign law objections and stated that they either had no foreign documents or were producing all of them. Of the twenty non-defaulting active defendants in the West- inghouse action, six apparently have no foreign doc- uments not previously produced, since they neither produced documents nor stated objections.’ Two other de- fendants, Kerr-McGee Corporation and the Anaconda Company, appear to have now produced all" responsive foreign documents. Two more defendants, Western Nu- clear, Inc. and Phelps Dodge Corporation, “were seemingly able to comply with all material document demands. They invoked Australian non-disclosure legislation but frankly summarized the contents of the three Australian docu- ments in such a manner as to convince Westinghouse that it does not need the documents. Ten other defendants have raised foreign law objections and have withheld foreign documents. Those defendants are Rio Algom Cor- poration (Rio U.S.), Engelhard Minerals and Chemicals Corporation (Engelhard), Denison Mines, Ltd. (Dension Canada), Denison Mines, Inc. (Denison U.S.), Gulf Oil 1 The six are Rio Tinto Zinc Corporation of America, Homestake Mining Company, Atlas Corporation, Reserve’ Oil’ and Minerals Corporation, United Nuclear Corporation, and Pioneer Nuclear, Inc. oll + 15a Corporation (Gulf), Gulf Minerals Canada Limited (GMCL), Getty Oil Company (Getty), Utah Interna- tional, Inc. (Utah), Noranda Mines, Ltd. (Noranda), and Federal Resources Corporation (Federal). In the three TVA actions, in which eight of the thirteen named defendants have appeared, seven of the active defendants have invoked foreign nondisclosure laws as a bar to pro- duction.? Only one of those defendants, Uranerz Canada Ltd. (Uranerz), is not a defendant in the Westinghouse action. Westinghouse has moved for production orders pursu- ant to Rule 37(a), F.R.Civ.P., against the ten non- producing defendants listed above, and TVA _ has similarly moved against the seven non-producing defend- ants in its case. The following table connects each de- fendant with the country whose foreign law is invoked as a bar to production. Defendants who are named in both the Westinghouse and TVA motions are identified by an asterisk (*}: Australia Canada Engelhard* Denison Canada* Getty Denison U.S.* Noranda* Federal Utah Rio U.S.* Uranerz South Africa Noranda* Gulf* Engelhard* GMCL* Switzerland Gulf* GMCL* * The eighth TVA defendant, Urangesellschaft mbH & Co., has raised no foreign law objections. l6a Five sets of foreign laws are involved. Three of those are regulations or statutes of Canada, Australia and South Africa which were enacted or modified during the period from 1976 to 1978 for the express purpose of frustrating the jurisdiction of the United States courts over the activities of the alleged international uranium cartel. Those laws generally prohibit the production of any document relating to uranium marketing activities from 1972 through 1975 and also prohibit communica- tions that would result in the disclosure of the contents of such documents. The fourth statute is the Ontario Business Records Protection Act, which was enacted in Canada in 1947. That Act forbids the production of any business records requested by a foreign tribunal if a provincial court issues an order to that effect. Because no such order has been sought or issued to date, this Act has little or no applicability here. The final statutes are Articles 162 and 273 of the Swiss Penal Code, which pro- hibit the disclosure of a “business or manufacturing se- cret.” Because a violation can be avoided if a person with a secrecy interest in some matter consents to its disclosure, and because Gulf and GMCL expect to secure all necessary consents within a short span of time, the Swiss statutes also have limited applicability here. All of these statutes impose criminal penalties for their vio- lation, including fines and imprisonment. In addition to plaintiffs’ motions to compel, three of the defendants—Getty, Gulf and Utah—have filed mo- tions to compel Westinghouse to produce documents |lo- cated in Australia, Canada and South Africa. Because Westinghouse has raised no foreign law objections to the production of those documents, these defendants’ com- plaint is that Westinghouse’s purportedly complete pro- duction of documents is in fact only a partial one. This contention rests mainly on inferences drawn from an affidavit by one of Westinghouse’s attorneys, James E. Daniels. 17a The Daniels affidavit states that Westinghouse docu- ments responsive to defendants’ document requests are located in Canada, Australia and South Africa, that the non-disclosure laws of those countries have not deterred Westinghouse’s compliance with those requests, and that, based upon his own knowledge and on consultation with others, Daniels is satisfied that copies of all responsive documents in those countries, together with any hand- written and margin notes, are now available for inspec- tion at Westinghouse’s Pittsburgh offices. Defendants claim these statements fail to meet the requirements of paragraph 5 of Joint Pretrial Order No. 5, which re- quires Westinghouse to specify “the procedures it fol- lowed in ascertaining that identical copies of such foreign documents, including handwritten notations, marginalia and attachments, have been produced from files main- tained in the United States .. .” In addition, they contend that Westinghouse has ignored the additional require- ment that a party must identilfy the foreign docu- ments that were not produced if copies of those originals were produced from its U.S. files or state the circum- stances that prevent such identification. In essence, then, these defendants suspect that Westinghouse’s U.S. files are less complete than those in foreiga countries, want more complete information to determine whether this is so, and then want access to any additional documents which are discovered. Plaintiffs’ and defendants’ motions to compel thus rest on wholly different theories. With plaintiff’s motions, the main issue is whether defendants should be ordered to produce withheld documents despite the prohibitions of foreign nondisclosure laws. With defendants’ motions, the main issue is whether Westinghouse has withheld foreign documents, and that question turns on the suffi- ciency of the Daniels affidavit. Assuming such documents have been withheld, Westinghouse seems to have raised no objection to their disclosure. Because plaintiffs’ mo- 18a tions raise the more complex issues and occupy the bulk of the voluminous papers which have been submitted to us, we shall discuss them first. The parties have offered differing views on the proper standards to be applied in deciding whether to issue a production order for documents located in a country which prohibits their removal or disclosure. Plaintiffs argue that Rule 37 requires a bifurcated two-step pro- cedure for compelling production and imposing sanctions. They contend that the question of whether a discovery order should issue is solely a matter of American law; foreign nondisclosure laws are only relevant in deciding whether sanctions should be imposed for non-compliance. Defendants argue that we should instead use a balancing test to consider all circumstances, including foreign law, before entering an order compelling discovery. We take a middle course between these opposing positions, finding that a number of factors must be considered before issu- ing a production order, but that the inquiry is not as comprehensive as defendants suggest. At the outset, we should identify the type of jurisdic- tion exercised by a court in issuing an order to produce foreign documents. In the field of foreign relations law, two types of jurisdiction have been defined. Prescriptive jurisdiction refers to the capacity of a state under inter- national law to make a rule of law. It is exemplified by the enactment of the Federal Rules of Civil Procedure, e.g., Rule 37. Enforcement jurisdiction, on the other hand, refers to the capacity ef a state under interna- tional law to enforce a rule of law. When a court enters an order compelling production of documents under Rule 37, it exercises its enforcement jurisdiction. Restatement, Second, Foreign Relations Law of the United States, § 6 (1965) ; Onkelinx, Conflict of International Jurisdiction: Ordering the Production of ~ ocuments in Violation of the Law of the Situs, 64 Nw. L. Rev. 487, 495 (1969). 19a The jurisdiction of American courts is unquestioned when they order their own nationals to produce docu- ments located within this country. But jurisdiction is less certain when American courts order a defendant to produce documents located abroad, especially when the country in which the documents are situated prohibits their disclosure. As a general rule, a court has the power to order a person subject to its jurisdiction to perform an act in another state. Restatement, Second, Conflict of Laws, § 53 (1971). There are two preconditions for the exer- cise of this power. First, the court must have personal jurisdiction over the person. Second, the person must have control over the documents. United States v. First National City Bank, 396 F.2d 897, 900-01 (2d Cir. 1968) ; In Re Grand Jury Subpoena Duces Tecum Ad- dressed to Canadian International Paper Co., 72 F. Supp. 1013 (S.D.N.Y. 1947). The location of the documents is irrelevant. 72 F. Supp. at 1020. On the issue of control, there are certain corollary principles which apply to multinational corporations. The test for determining whether an American court can order an American parent corporation to produce the documents of its foreign subsidiary was stated in Jn Re Investigation of World Arrangements, 13 F.R.D. 280, 285 (D.D.C. 1952) : If a corporation has power, either directly or in- directly, through another corporation or a series of corporations, to elect a majority of the directors of another corporation, such corporation may be deemed a parent corporation and in control of the corpora- tion whose directors it has power to elect to office. Thus, for example, if the parent owns more than 50% of the foreign subsidiary’s stock, it posserses the neces- sary control. W. Fugate, Foreign Commerce and the Antitrust Laws, 116 (2d ed. 1973). 20a The test is less clear in situations where an order is directed to the American subsidiary of a foreign corp- oration to produce documents from its head office located abroad. One court has held that a subpoena duces tecum was enforceable if it was served on the subsidiary’s of- fices in the United States, even though the corporation’s board of directors had passed a resolution prohibiting the removal of the requested records from Canada and even though all the board members were residents of Canada. In Re Grand Jury Subpoena Duces Tecum, supra, 72 F. Supp. at 1020. The court’s reasoning as to how the American officers had control over the withheld documents seems to rest on the theory that it was sufficient that the documents were in the possession of the corporation and that a subpoena had been served on some of its officers. See Onkelinx, supra, 64 Nw. L. Rev. at 505-06. More help- ful guidance can be drawn from Societe Internationale v. McGranery, 111 F. Supp. 4385, 440-42 (D.D.C. 1953), in which the court held that plaintiff, a Swiss corporation, had control over the papers of its Swiss-based bank, H. Sturzenegger & Cie.* The court attached significance to the fact that Sturzenegger was a director and officer of plaintiff and was “perhaps” a dominant personality in plaintiff’s affairs. After an extensive examination of the corporate affiliations of the two partners, the court con- cluded that “through the interlocked web of corporate or- ganization, management and finance there runs the thread of a fundamental identity of individuals in the pattern of control.” 111 F. Supp. at 442. Thus, the issue of con- trol is more a question of fact than of law, and it rests on a determination of whether the defendant has practical and actual managerial control over, or shares such con- 8’ The court’s holding on the control issue was accepted both by the Court of Appeals, Societe Internationale v. Brownell, 225 F.2d 532, 586 (D.C. Cir. 1955), and by the Supreme Court, Societe In- ternationale Vv. Rogers, 357 U.S. 197, 204 (1958). 2la trol with, its affiliate, regardless of the formalities of corporate organization. Once personal jurisdiction over the person and con- trol over the documents by the person are present, a United States court has power to order production of the documents. The existence of a conflicting foreign law which prohibits the disclosure of the requested documents does not prevent the exercise of this power. This propo- sition has been accepted by both the American Law In- stitute (Restatement, Second, Foreign Relations Law of the United States, § 39*), and by the Supreme Court, Societe Internationale v. Rogers, 357 U.S. 197 (1958). However, American courts should not ignore the fact that such ‘a law exists. When two states, both having juris- diction, prescribe inconsistent conduct, American courts have developed certain rules of self-restraint governing the appropriate exercise of their power. United States v. First National City Bank, supra, 396 F.2d at 901. Because Societe Internationale dominates the field and sets forth the pertinent considerations to be weighed when such conflicts arise, we analyze it at length. The procedural context of the Societe case is intricate. A Swiss company brought a civil suit under the Trading with the Enemy Act to recover assets which the United States Government had seized during World War II as enemy-owned property. The American government chal- lenged plaintiff’s claim of ownership and also asserted that plaintiff itself was an “enemy” and hence was barred from recovery under the Act.- To prove its de- fenses, the government moved for an order requiring 4 Section 39(1) states: A state having jurisdiction to prescribe or to enforce a rule of law is not precluded from exercising its jurisdiction solely because such exercise requires a person to engage in conduct subjecting him to liability under the law of another state hav- ing jurisdiction with respect to that conduct. 22a plaintiff to produce documents held by its bank in Switz- erland. The district court granted the motion. Plaintiff then sought to avoid production on the ground that dis- closure of the bank records would violate Swiss penal laws and subject it to criminal sanctions. The defendant in turn moved to dismiss the complaint because of plain- tiff’s noncompliance with the production order. The district court appointed a special master to con- sider plaintiff’s claims. The master found that there was no evidence of collusion between plaintiff and the Swiss government to evade discovery, and that plaintiff had shown good faith in its efforts to secure waivers from the Swiss government and to comply with the order. The district court accepted these findings, but nevertheless dismissed the complaint with prejudice hold- ing that plaintiff had control over the bank records, that the records “might prove to be a deciding factor in the outcome of this suit” (111 F. Supp. at 443), that Swiss law did not provide an adequate excuse for noncompliance, and that the court in these circumstances had the power to dismiss the complaint. Although plaintiff was given a grace period to continue its efforts to secure waivers from the Swiss government, and although it produced more than 190,000 documents over the next three years, plaintiff ultimately failed to achieve full compliance. Consequently, the district court directed a final dismissal of the action. The Court of Appeals affirmed. On certiorari, the Supreme Court affirmed the issu- ance of the production order, but reversed the dismissal of the action. It is the first half of the Court’s holding that is of primary concern to us here. In deciding that the production order was justified, the Court first accepted the district court’s finding that, apart from the effect of Swiss law, the documents were within plaintiff’s control and possession. It then dicussed the 23a question of whether Swiss law barred the conclusion that plaintiff had “‘control’”’ of the documents within the mean- ing of the Federal Rules of Civil Procedure governing discovery orders. The Court decided that Swiss laws did not create an insuperable obstacle to issuance of a pro- duction order. The Court identified three salient factors which in- fluenced its decision. First, in enacting the statute which formed the basis for plaintiff’s action, Congress had ex- pressed a “deep concern” with reaching property held by corporations whose intricate financial structure dis- guised their ties to enemy interests. The Court stated that a failure to order the production of documents il- luminating plaintiff’s financial background would frus- trate this Congressional policy. We infer that the Court would accept the obverse proposition that a court should generally order production to effectuate strong Con- gressional policies. In addition, because the Court gave no hint that the disclosure policies of the American stat- ute should be balanced against the secrecy policies of the Swiss law, it appears that the only pertinent inquiry is the strength of the American interests. Second, the Court noted that the requested records were “vital” to a determination of the pivotal statutory inquiry, namely whether plaintiff was the captive of enemy interests. The Court thus suggested that the normal discovery standard of whether a document is relevant or is caleu- lated to lead to the discovery of admissible evidence does not apply, and should be replaced by the higher stand- ard of whether the requested documents are crucial to the resolution of a key issue in the litigation. Third, in apparent reliance on plaintiff’s status as a Swiss national invoking the prohibitions of its own country’s penal laws, the Court stated that plaintiff was in a favorable posi- tion to secure a waiver of those laws from its govern- ment or to explore alternative procedures for achieving compliance. The opinion thus suggests that the greater the chances for flexibility in a country’s application of its 24a nondisclosure laws, the greater the likelihood that a pro- duction order should issue. In conclusion, the Court stated that “United States courts should be free to re- quire [persons such as plaintiff] . . . to make all such efforts [at compliance] to the maximum of their ability ..” 357 U.S. at 205. In the next paragraph, however, the Court explicitly confined its ruling to the case before it, thus weakening the precedential value of its three-pronged analytical framework. The propriety of issuing a production order in other cases was said to depend not only on those three factors, but also on the “exigencies of particular litiga- tion” and “the circumstances of a given case.” 357 U.S. at 206. These circumstances and exigencies were not defined with any particularity. Although the Court by this language seemingly en- dorsed a completely open-ended approach for deciding future cases, the overall tenor of the opinion and several additional comments lead us to conclude that the Court envisioned some limits on its inquiry. First, in summar- izing its holding that the district court properly issued the production order, the Court mentioned only two in- terests which were to be factored into the decisionmaking process: a) the requirements of the procedural rule au- thorizing production orders, and b) the policies under- lying the law which formed the basis for the action. 357 U.S. at 206. The first of those interests encompasses the questions of defendant’s control over the documents and plaintiff’s need for them. The other is confined to the importance of the policies behind the American law. Sec- ond, the next section of the opinion contains language which reserves certain factors for consideration solely at the sanctions phase of the enforcement process. In that section, the Court explored the source of a federal court’s power to dismiss a complaint because of noncompliance with a production order, and decided that it rested solely 25a on Rule 37, F.R.Civ.P. The Court then found that a district court’s Rule 37 power is invoked when a party “refuses to obey” such an order, and that refusal occurs whenever a party fails to comply with an order, regard- less of its reasons for noncompliance. This analysis is followed by this sentence: Such\véasons, and the willfulness or good faith of petitioner, can hardly affect the fact of noncompli- ance and are relevant only to the path which the District Court might follow in dealing with [a party’s] failure to comply. 357 U.S. at 208. (Em- phasis supplied. ) Although this sentence does not explicitly remove de- fendant’s reasons for noncompliance from consideration at the order-making stage of the proceedings, it impliedly has that effect, because we are told such reasons are relevant only to the question of appropriate sanctions. This conclusion is confirmed by the third section of the Societe opinion, in which the Court examined whether plaintiff’s stated reasons for noncompliance were ade- quate to prevent dismissal of its complaint under Rule 37. The Court first determined that plaintiff “had in good faith made diligent efforts to comply with the pro- duction order,” then found that those efforts fell short of full compliance, and then analyzed the shortfall to see whether it was caused by plaintiff’s “inability fostered neither by its own conduct nor by circumstances within its control.” In defining acceptable forms of inability, the Court discussed a number of issues that the parties in the pres- ent case have attempted to raise prematurely at the order-making stage. One such issue is whether defend- ants “deliberately courted legal impediments” in a for- eign country to evade discovery, such as by requesting a foreign government to adopt a nondisclosure law and 26a then shipping its records to that jurisdiction. Another is the severity of the sanctions imposed for violation of the nondisclosure law and the resulting hardship to defend- ants. In this vein, the Court noted that “fear of criminal prosecution constitutes a weighty excuse for nonproduc- tion...” A further issue concerns the scope and ap- plicability of the foreign laws, since a refusal to produce which rests on an overbroad and unjustified interpreta- tion of the foreign laws will not be honored here. On this question the Supreme Court stated that “the very fact of compliance by disclosure of banking records will itself constitute the initial violation of Swiss laws.” The wisdom of deferring consideration of these factors until the sanctions phase of the proceedings is clear. In the present case, each defendant seeks to differentiate itself from its co-defendants on the basis of a variety of factors, including the volume of the documents it is with- holding, the extent of its culpability in securing passage of the foreign laws, its good faith in seeking to comply with document requests, the amount of hardship it might suffer by disclosure, and the breadth of its interpretation of foreign laws. Each defendant asks for separate treat- ment and consideration. A decision to grant or withhold a production order under Rule 37(a) does not provide a means for tailoring relief to the individual circumstances of each defendant. On the other hand, Rule 37(b) is flex- ible and offers a variety of sanctions, if necessary, which the court may incorporate into such orders “as are just.” The Supreme Court in Societe recognized the validity of this approach. Although it found that the district court was unjustified in dismissing plaintiff’s complaint, it remanded the case with instructions that the district court “possesse[d] wide discretion to proceed in whatever manner it deems most effective.” That discretion in- cluded options to “explore plans looking towards fuller compliance,” and even to “draw[] inferences unfavor- 27a able to [plaintiff] as to particular events.” This lan- guage indicates that a production order is only the first step in the process of resolving discovery disputes, and that it should not be prematurely burdened by a com- prehensive inquiry into all ramifications of the contro- versy. To summarize the preceding discussion, we have con- cluded that we possess the power to enter an order against defendants under Rule 37(a) compelling them to produce documents located abroad if the particular defendant is within the personal jurisdiction of this court and has control over the requested documents. Societe teaches that the decision whether to exercise that power is a discretionary one which is informed by three main factors: 1) the importance of the policies under- lying the United States statute which forms the basis for the plaintiffs’ claims; 2) the importance of the requested documents in illuminating key elements of the claims; and 3) the degree of flexibility in the foreign nation’s application of its nondisclosure laws. Relying on the Court’s additional suggestion that each case must depend upon its particular facts, several defendants urge that we consider several other factors that we have not yet discussed. However, in the circumstances of this case, we find that these other factors are of limited or no utility. Several defendants cite the Restatement, Second, For- eign Relations Law of the United States, § 40(a) or rely on broad notions of “international comity” for the proposition that we should balance the vital national interests of the United States and the foreign countries to determine which interests predominate. Aside from the fact that the judiciary has little expertise, or per- haps even authority, to evaluate the economic and social policies of a foreign country, such a balancing test is in- herently unworkable in this case. The competing interests 28a here display an irreconciliable [sic] conflict on precisely the same plane of national policy. Westinghouse seeks to enforce this nation’s antitrust laws against an alleged international marketing arrangement among uranium producers, and to that end has sought documents located in foreign countries where those producers conduct their business. In specific response to this and other related litigation in the American courts, three foreign govern- ments have enacted nondisclosure legislation which is aimed at nullifying the impact of American antitrust legislation by prohibiting access to those same documents. It is simply impossible to judicially “balance” these to- tally contradictory and mutuelly negating actions. All defendants rely on a line of Second Circuit cases which were decided after Societe and which suggest that a district court should not order production if the order would cause a party to violate a foreign law. First Na- tional City Bank v. Internal Revenue Service, 271 F.2d 616 (2d Cir. 1959) ; Ings v. Ferguson, 282 F.2d 149 (2d Cir. 1960) ; Application of Chase Manhattan Bank, 297 F.2d 611 (2d Cir. 1962). Plaintiffs rely in turn on a Tenth Circuit decision which takes a contrary view. Ar- thur Andersen & Co. V. Finesilver, 546 F.2d 388 (10th Cir. 1976). We believe that the Tenth Circuit decision is more closely in harmony with the principles estab- lished in Societe. Gulf and Uranerz urge that the production orders sought by plaintiffs are barred by the act of state doc- trine because they would interfere with the conduct of our foreign relations by the Executive Branch. However, the act of state doctrine is not applicable here. That doctrine bars an American court from questioning the validity of the act of a foreign sovereign when that act is done within the sovereign’s territory. Underhill v. Her- nandez, 168 U.S. 250, 252 (1897); Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 416 (1964). Plaintiffs 29a have not challenged the validity of any of the foreign nondisclosure laws which are relied on by defendants. The issue is not whether those laws are valid, but rather, conceding their validity, whether they excuse defendants from complying with a production order. Many defendants ask us to consider communications from foreign governments to the U. S. State Department which have protested the issuance of production orders by American courts in similar circumstances. We believe those communications are relevant to the decision whether to issue a production order only insofar as they indicate the degree of accommodation or adjustment which the foreign government may be willing to make in its non- disclosure laws. We reserve any further consideration of . these communications to the hearing on sanctions, if that becomes necessary. %: Finally we have on this question—as we have on another question “—been benefitted with statements amici curiae from the Governments of Canada, Australia, South Africa and Switzerland. By far the most extensive of these is the Canadian statement which urges that we defer to the critical importance which Canada attaches to its national policies and regulations. But as we have earlier observed a balancing test is inherently unwork- able in this case, and were it not we would be hard pressed not to accede to the strong national policy of this country to enforce vigorously its anti-trust laws. There are two procedural hurdles we must clear be- fore we reach the merits of the various motions to com- pel. The issues are ones of waiver and collateral estop- pel. 5 Here the amici appear in support of the non-defaulting defend- ants. On the question of the timing of the hearing to prove up damages on the default judgment, which is now before the Court of Appeals, the amici have supported the defaulting defendants. 30a TVA argues that Uranerz and Noranda have waived certain foreign law objections by failing to raise them in a timely manner. As to Uranerz, we previously ruled on January 29, 1979 that Uranerz, because of its delin- quency in asserting objections, had waived all objections to production except those objections based on the Cana- dian non-disclosure laws. We created this exception after learning that many other defendants had raised foreign law objections, that the issue was unusually sensitive and important, and that neither side had moved for a resolu- tion of the issue. In those circumstances, we ruled that it would be unfair to deprive Uranerz of the opportunity to raise the foreign law objection. Nevanda’s situation is somewhat different. Noranda initially objected to TVA’s document requests on the basis of Canadian nondisclosure laws. However, when it later defined its foreign law objections in accordance with Pretrial Order No. 5, Noranda added a new objec- tion based on Australian law. TVA challenges the Aus- tralian law objection as untimely, because it was not raised in response to the document requests and because the pretrial order did not expressly authorize new objec- tions. We think TVA’s interpretation of the pretrial order is too narrow. The order was drafted in response to the delays and difficulties in document production which first surfaced in the Uranerz situation, and was specifically intended to provide the final deadline for par- ticularized foreign law objections to all prior and pend- ing document requests. All objections filed within the time limits of the order are proper. Rio U.S., Noranda and Uranerz contend that plaintiffs are collaterally estopped from litigating their present motions because the Tenth Circuit decided the same is- sues adversely to them in Jn Re Westinghouse Electric Corporation Uranium Contract Proceedings, 563 F.2d 992 (10th Cir. 1977). That case was a by-product of the related Virginia contracts litigation, where Westing- 8la house was sued for breach of its uranium contracts by thirteen utility companies, including TVA. In an effort to prove its defense that the real cause of its inability to perform was a price-fixing conspiracy among uranium producers, Westinghouse served a subpoena on Rio U.S., a non-party, in Utah. The subpoena directed Rio U.S. to produce certain business records. Rio U.S. raised the Canadian nondisclosure laws as a bar to production and moved to quash the subpoena. The district court denied the motion and entered a production order. After Rio U.S. failed to comply, it was adjudged in contempt and was fined $10,000 per day until it complied with the order. The Tenth Circuit reversed, holding that “all things considered, on the basis of the record before it, the district court in our view abused its discretion in adjudg- ing Rio [U.S.] to k2 in contempt of court, and in impos- ing the severe sanction in connection therewith.” 563 F.2d at 996. We do not believe that the court’s decision constitutes an estoppel to plaintiffs’ present motions. TVA never appeared in the Utah proceedings, and therefore never had a full and fair opportunity to litigate the issues. Blonder-Tongue Laboratories, Inc. v. University of IIli- nois Foundation, 402 U.S. 318, 829 (1971). Its position as a party plaintiff in the Virginia litigation, in which it was Westinghouse’s adversary, gave it no meaningful incentive to intervene in Westinghouse’s efforts to secure discovery on Westinghouse’s cartel-related defenses. Al- though Westinghouse did have a full opportunity to liti- gate the issues, those issues are not the same as those raised here. The only issue on appeal was the propriety of the sanctions imposed for noncompliance, not the valid- ity of the production order. Therefore, that decision of- fers no conclusive guidance on the issue of whether a production order should issue here. Furthermore, the decision whether to impose sanctions rests on a variety of factors, anc those factors have been restructured in this 32a case by Rio U.S.’s status as a party rather than a wit- ness, by the more crucial relevance of the requested docu- ments to plaintiffs’ antitrust claims, and by our oppor- tunity to have a much more complete record on Westing- house’s charges of a collusive attempt to evade discovery and of overall bad faith.*® We now examine whether all defendants are within the personal jurisdiction of this court and have control over the requested documents, so that we possess the requisite power to issue an order under Rule 37(a) com- peiling production of their foreign documents. Only No- randa has raised an objection based on lack of in per- sonam jurisdiction. Five defendants—Engelhard, No- randa, Denison U.S., Rio U.S. and Uranerz—deny that they control the requested documents. Noranda has moved to dismiss both the Westinghouse and the TVA actions for lack of personal jurisdiction. Both motions have been deferred pending discovery. Noranda argues that no production order can be entered until we rule upon the motions. We disagree, because even in the absence of such a ruling, we possess jurisdic- tion to determine our jurisdiction over the parties. In the exercise of that jurisdiction, we may compel discov- ery to aid our resolution of the personal jurisdiction issues. Noranda admits that it has interposed foreign law ob- jections to production of several documents which are directly relevant to its contacts with Illinois: 1) the con- tent of a document regarding the seminar of the Atomic 6Of course, a more complete record is of no consequence for collateral estoppel purposes if Westinghouse could have developed the same facts against Rio U.S. in the earlier litigation. It ap- pears, however, that some additional facts have only recently been made available (e.g. the grand jury documents) or relate to subse- quent events (e.g. later efforts to secure waivers from the foreign governments). 33a Industrial Forum in Oak Brook, Illinois in 1973, and 2) documents concerning contacts with two Illinois utilities. Noranda seeks to nullify the usefulness of these docu- ments by making self-serving and uncorroborated assur- ances that they do not establish its contacts with this state. Plaintiffs are not required to accept these assur- ances, and are entitled to make their own inspection of the documents. Societe Internationale v. McGranery, supra, 111 F. Supp. at 442. Noranda makes the alternative contention that we should limit discovery to those documents relevant to the jurisdictional issues. While we agree with this state- ment as a general principle, that principle offers little assistance where, as here, the jurisdictional and merits discovery is intertwined. Because the documents withheld pursuant to foreign law are peculiarly likely to impact on both areas, and because any segregation of documents will likely involve the unreviewable discretion of the party segregating and withholding them, we believe an order requiring full production is necessary. To resolve the issue of whether four defendants con- trol the requested documents, we must delve into the details of their corporate affiliations. Rio U.S. and Den- ison U.S. are the American subsidiaries of foreign par- ents, Engelhard is an American parent with foreign sub- sidiaries, and Noranda is a foreign parent with foreign and domestic subsidiaries. Engelhard is a Delaware corporation with its principle place of business in New York City. Although it does not mine or produce uranium, it has acted as a sales repre- sentative for Nuclear Fuels Corporation of South Africa (Nufcor, a defaulting defendant) in promoting its sales of uranium in North America. In carrying out that function, Engelhard has been assisted by three wholly owned subsidiaries located in Australia and South Af- rica. Derby and Co. (South Africa) Pty., Ltd. is a 84a South African corporation which is a wholly owned sub- sidiary of Derby and Co., Ltd. (London), which in turn is a wholly owned subsidiary of Engelhard. Derby- South Africa transmitted information between Nufcor’s offices in South Africa and Engelhard’s offices in the United States. Philipp Brother (Australia) Pty., Ltd. is an Australian corporation which is a wholly owned sub- sidiary of Engelhard. Derby and Co. (Australia) Pty., Ltd. is an Australian corporation which is 2 wholly owned subsidiary of Derby-London. The Australian sub- sidiaries have aided Engelhard in its unsuccessful at- tempt to act as a sales representative for a newly-devel- oping Australian mining company, Queensland Mines, which is also a defaulting defendant. Engelhard states that “it is possible that one or more of these subsidiaries may have within its possession, custody or control docu- ments or information responsive to portions of [plain- tiff’s] document requests . . .” Engelhard has refused to produce those documents. It is clear that Engelhard’s total ownership of its Australian and South African subsidiaries gives it ef- fective control over those corporations’ documents. Engel- hard’s only argument to the contrary is that the normal inference of control is rebutted here because Engelhard has no legal right to direct the officers and employees of its foreign subsidiaries to violate the non-disclosure laws of their countries. The Supreme Court specifically re- jected that argument in Societe, after it weighed the argument in light of the three factors we have identified above. 357 U.S. at 204-06. We reach the same conclu- sion, but postpone our analysis for a consolidated discus- sion of all defendants’ arguments on this issue. See pp. 35-41 below. Noranda is a Canadian corporation with its principal place of business in Ontario. Noranda itself does not own uranium or uranium-producing properties and has 85a not sold uranium. However, it owns 43.8% of the com- mon shares of Kerr-Addison Mines, Ltd., a Canadian corporation which has a wholly owned subsidiary called Agnew Lake Mines, Ltd., which in turn owns a 90% interest in a uranium-producing mine in Ontario, Can- ada. Kerr-Addison’s shares are publicly traded on the Toronto Stock Exchange and are owned by more than 11,000 shareholders. While a minority of the directors of Kerr-Addison are also officers of Noranda, Kerr-Addison keeps its own books and records and holds its own cor- porate meetings separate and apart from any other com- pany. Noranda also has wholly owned subsidiaries that own uranium prospects located in Canada, Australia and the United States. One of these is Noranda Australia, Ltd., which has an interest in undeveloped uranium de- posits in Australia. In addition, personnel of Noranda Sales Corporation, Ltd., a wholly owned Canadian sub- sidiary, have consulted with purchasers or prospective purchasers of uranium at various times in an effort to sell uranium to be produced in the future. These facts, as disclosed by affidavits in support of Noranda’s motion to dismiss, reveal that Noranda has control over respon- sive documents of Noranda Australia and Noranda Sales, but not over those of Kerr-Addison. The situation with Rio Algom Corporation (Rio U.S.) is much more complex than either Noranda or Engel- hard. Rio U.S. is a Delaware corporation with its prin- cipal place of business in Moab, Utah, where it owns and operates a uranium mining and milling facility. Rio U.S. is the wholly owned subsidiary of Atlas Alloys, Inc., an Ohio corforation, which in turn is the wholly owned sub- sidiary of Rio Algom, Ltd. (Rio Canada), a Canadian corporation which mines and sells uranium produced from its Elliott Lake mine in Canada. Rio U.S. has appeared in this action and defended itself, but Rio Can- ada has defaulted. 36a Rio U.S. states that it has withheld no documents in its possession, custody and control, including documents from files located in Canada, on the ground that they are affected by foreign law. However, it has declined to pro- duce certain other documents located in Ganada because those documents are in the possession, custody and con- trol of its parent once removed, Rio Canada, and because production of those documents would violate Canadian law. Westinghouse has sought to define an overlap or gray area of documents falling between these two state- ments. Westinghouse argues that Rio U.S. has unjustifi- ably refused to produce responsive documents concerning its uranium mining, marketing and exploration activi- ties, because even though those documents are located in Canada in the files of Rio Canada’s directors, officers and employees, those persons at all pertinent times acted in behalf of Rio U.S. and had responsibility for those uranium activities. In support of this contention, Westinghouse has sub- mitted extensive evidence that Rio U.S. and Rio Canada have operated as a single functional unit in all aspects of their uranium business. These two corporations have shared an interlocking structure of corporate directors, officers, and executive and administrative personnel who have managed the uranium-related activities of both cor- porations. The intervening ownership interest of Atlas Alloys is wholly collateral to the managerial unity of the two companies. Numerous officers of Rio U.S. have held dual positions with Rio Canada, enabling them to per- form identical uranium-related functions for each corpo- ration. For example, George Albino, in his capacity as principal operating officer of both corporations from 1971 to 1977, exercised direct managerial control over the daily uranium operations of both companies. Nine of Rio U.S.’s current officers and directors have offices at the corporate headquarters of Rio Canada in Toronto, Ontario. In January, 1976, A. G. Lowell, who is a Rio 37a Canada Vice-President, stated that “Rio Algom Corpo- ration is wholly owned by Rio Algom Ltd., and all mar- keting matters related to uranium and other mineral products are handled from our Toronto office.” Other evidence demonstrates that Rio U.S. and Rio Canada have been treated as a single uranium business not only by themselves, but by other members of the uranium industry and by their ultimate parent, Rio Tinto Zinc Corporation, Ltd. From the available evidence of coordinated uranium- related activities, we conclude that there is a strong likelihood that Rio U.S. is withholding responsive docu- ments in the files of Rio Canada personnel who have had and/or continue to have responsibility for Rio U.S.’s mining and marketing of uranium. To defend this with- holding, Rio U.S. relies on cases involving a corporation’s liability for a related corporation’s actions. However, there is a crucial distinction between ability to compel production of documents and liability for a subsidiary’s acts. The latter may require Rio U.S. to actually control or manage Rio Canada’s business, but the former does not. W. Fugate, Foreign Commerce and the Antitrust Laws, supra at 116. It is sufficient that Rio U.S. has, or once had, control over its directors, officers and em- ployees who managed the uranium-related activities of Rio U.S. alone or of both corporations. Rio U.S. must produce all responsive documents held by those employees or former employees, even if those documents have found their way into Rio Canada files. The formalities separat- ing the two corporations cannot be used as a screen to disguise the coordinated nature of their uranium enter- prise. A similar situation may exist with respect to defend- ant Denison Mines, Inc. (Denison U.S.), but Westing- house has provided insufficient documentation for us to conclude that Denison U.S. controls withheld documents 88a in the files of its parent defendant Denison Mines, Ltd. (Denison Canada). Denison Canada is a Candian cor- poration with its principal place of business in Toronto and engages in the mining, milling and sale of uranium. Denison U.S. is a Delaware corporation with its prin- cipal place of business in Denver, Colorado and is a wholly owned subsidiary of Denison Canada. Denison U.S. is and has been engaged in exploration for uranium and other minerals in the United States. Answer, J] 17, 18. Both corporations have appeared in this action. Like Rio U.S., Denison U.S. states that it has raised no objections based on foreign law and has produced all documents within its control. Indeed, Denison U.S. al- lowed plaintiffs to walk through their entire files and select’ documents without regard to relevancy standards, with the exception of documents covered by the attorney- client privilege or work product immunity. However, Denison U.S. has been silent on the question of whether some of its documents were -enerated in Canada and have been kept there. Westinghouse suggests that these documents have been and are now held by Denison Can- ada and that the close managerial connections between the two corporations justify the issuance of an order directing the production of all such documents reflecting management decisions of Denison U.S. But Westing- house’s exhibits on this issue (Nos. 61 and 62) are too scanty to support this inference. Consequently, West- inghouse’s motion to compel Denison U.S. to produce documents from the files of its parent Denison Canada must be denied. Uranerz raises a control issue of a completely dif- ferent character. Its documents are located primarily in its corporate offices in Canada and West Germany, and Uranerz raises no control objections as to them. But an undisclosed volume of Uranerz documents is currently located in the offices of the Ministry of Energy, Mines 39a and Resources of the Canadian government in Ottawa. Those documents were transferred in November, 1976, after the Canadian government directed Uranerz and other companies to deposit with the Ministry all docu- ments covered by the Canadian nondisclosure laws which had been enacted in September of that year. When Uranerz’s American counsel, Mr. Levitt, later asked the Ministry if he could review the documents, he was ad- vised that no American counsel for any company has been permitted to inspect any documents in the Ottawa de- pository. Levitt was informed that his request would not even be considered unless he could furnish a written opinion that he could not be compelled by any American court to disclose what he had seen. In his view, Ameri- can law did not provide such an airtight safeguard against disclosure that he could give such assurances. Therefore Mr. Levitt abandoned his efforts to seek access to these documents. Because these documents are in the actual possession of government officials, and because those officials have demonstrated that access is strictly limited and is to be granted on a discretionary basis, we agree with Uranerz that it has no control over those documents. Compare Societe Internationale, supra, 357 USS. at 204. We have now determined that, with certain exceptions regarding Denison U.S. and Uranerz, we have the power to issue a production order under Rule 37(a) against the eleven resisting defendants that are the subjects of plain- tiffs’ motions. The remaining question is whether we should exercise our discretionary power to issue those or- ders, after weighing the three factors described earlier in this memorandum. We conclude that we should. The first consideration is the strength of the Congres- sional policies underlying the statute which forms the basis for plaintiffs’ action. Plaintiffs’ complaint chal- lenges activities by the defendants which, if true, would constitute massive violations of this nation’s antitrust 40a laws. “These laws have long been considered corner- stones of this nation’s economic policies, have been vig- orously enforced and the subject of frequent interpreta- tion by our Supreme Court.” United States v. First National City Bank, 396 F.2d 897, 903 (2d Cir. 1968). “They are as important to the preservation of economic freedom and our free-enterprise system as the Bill of Rights is to the protection of our fundamental personal freedoms.” United States v. Topco Associates, Inc., 405 U.S. 596, 610 (1972). More specifically, Congressional concern with the very practices at issue here, and with the antitrust implications of those practices, is evidenced by extensive subcommittee investigations into the alleged international uranium cartel. See Hearings Before the Subcommittee on Oversight and Investigation of the House Committee on Interstate and Foreign Commerce, 95th Cong., 1st Sess. (1977). Governmental concern with this issue achieved choate form when the Justice De- partment convened a grand jury which eventually charged Gulf with criminal antitrust violations arising out of the same transactions identified by Westinghouse. United States v. Gulf Oil Corp., Cr. No. 78-123 (W.D. Pa. 1978). The existence of this public enforcement action does not supplant plaintiffs’ private civil action. Indeed, Congress specifically intended to encourage civil antitrust actions by allowing private litigants to gain certain estoppel advantages from government antitrust actions. Minne- sota Mining & Mfg. Co. v. New Jersey Wood Finishing Co., 881 U.S. 311 (1965). From these indicators, it is clear that the policies supporting an inquiry into cor- porate activities and structure are at least as weighty, and probably stronger, with the antitrust statutes here than they were in the Trading with the Enemy Act in Societe Internationale. See W. Fugate, supra at 122. The second consideration is whether the requested documents are crucial to the determination of a key issue in the litigation. Plaintiffs’ showing on this factor is simply overwhelming. All of the discovery requests now “*F. + 4la at issue are directly relevant to a number of fundamental issues in the complaint, answers, affirmative defenses and counterclaims in this litigation. Plaintiffs seek vital information relating to, among other things, the time period when the alleged conspiracy of uranium producers was carrying out its activities, defendants alleged efforts to conceal their conspiracy, the impact of that alleged conspiracy on United States interstate and foreign com- merce, the defendants’ defenses of sovereign compulsion, and information on uranium sales and market conditions. Plaintiffs have submitted voluminous exhibits which give a sketchy picture strongly supporting their allegations in these areas but also suggesting that there are larger gaps in defendants’ document production. The strength of plaintiffs’ need for these documents is perhaps best demonstrated by these facts. First, Gulf has admitted the “establishment of an international ura- nium cartel under which price controls and market alloca- tions were established” for at least some sales of ura- nium. (Gulf Brief, p. 18). Second, the information which plaintiffs seek is of such exceptional significance that the three foreign governments have sought to authorize de- fendants to withhold that information for the express purpose of frustrating United States judicial inquiries into the activities of this cartel. Third, ten defendants have withheld documents under their control which are said to be within the scope of the secrecy legislation. The inevitable inference is that the withheld information is _ likely to be the heart and soul of plaintiffs’ case. Severai defendants counter that the unproduced docu- ments are merely cumulative of presently available dis- covery (Gulf, pp. 56-57) or that their own examination of the documents has convinced them that they have little significance to the case (Federal, pp. 14-15). These ar- guments were persuasively rejected by the district court in the Societe Internationale litigation: 42a Under the rules of United States Courts a party is not required to accept the assurance of opposing counsel as to what has been made available. He is entitled to draw his own conclusions on examina- tion of the papers. 111 F. Supp. at 442. Other defendants argue that they are equally prejudiced by the nondisclosure laws, since they may be prevented from using exculpatory documents which are covered by those laws. (See, e.g. Noranda, pp. 24-25). However, the solution to this “problem” lies in the fullest possible disclosure, not in a mutual limitation on relevant information. Finally, we recognize that, as one commentator has put it, “the heart of any American antitrust case is the dis- covery of business documents. Without them, there is virtually no case.” Note, Discovery of Documents Located Abroad in U.S. Antitrust Litigation: Recent Develop- ments in the Law Concerning the Foreign Illegality Ex- cuse for Non-Production, 14 Va. J. Int’l. L. 747 (1974). That is especially true when plaintiffs allege an anti- trust conspiracy which has taken deliberate and elaborate steps to cloak its activities. “If true, the nature of the activities must be ferreted out of dark and obscure cor- ners.” Societe Internationale, supra, 111 F. Supp. at 443. The documents at issue here are crucial to plain- tiffs’ proof. The third consideration involves an appraisal of the chances for flexibility in a country’s application of its nondisclosure laws. The degree of leniency in the ap- plication of the nondisclosure laws varies from country to country. South Africa has taken the most flexible position. It has allowed Westinghouse to inspect Utah’s uranium-related documents in that country, and is cur- rently considering a request from Engelhard to allow a similar inspection of its documents. Australia has re- jected all past requests for a waiver of its regulations, 48a but interprets its laws as authorizing the Attorney Gen- eral to grant such waivers. The Attorney General is presently considering requests for waivers from Engel- hard, Getty and Utah. Canada has taken a completely inflexible position. It has consistently rejected all re- quests for waivers, stating that its government officials have no authority to grant them. It has opposed West- inghouse’s unsuccessful efforts to secure letters rogatory from a Canadian court for production of uranium-related documents. It has rejected all requests to modify or amend the regulations and has refused to give any as- surances of non-prosecution for any violations. Canada has also sent numerous diplomatic notes to the U.S. State Department in which it has expressed a firm position that any disclosure of documents covered by its regula- tions would be inimical to its national interests. Canada’s position has not been relaxed by its amicus submission. On balance, we have concluded the issuance of Rule 37(a) orders is required. The entry of such orders may lead to a further narrowing of the defendants’ foreign law objections. That process has already been evidenced by the increased disclosures which have occurred since Westinghouse filed the present motions. Even if some defendants subsequently conclude, as they now suggest, that they have already done everything within their powers to comply with such an order, we do not think an order at this time would be a futile gesture. The order will serve to declare Westinghouse’s right to the discovery it seeks, thereby framing the competing inter- ests of the United States and the foreign governments on a plane where the potential moderation of the exer- cise of their conflicting enforcement jurisdictions can be meaningfully considered. We do not seek to force any defendant to violate foreign law. But we do seek to make each defendant feel the full measure of each sovereign’s conflicting commands, so that, in the words of Chief Judge Kaufman of the Second Circuit, it now 44a “must confront... the need to ‘surrender to one sovereign or the other the privilege received there- from’ or, alternatively, a willingness to accept the consequences.” United States v. First National City Bank, 396 F.2d 897, 905 (2d Cir. 1968). Accordingly, plaintiffs’ motions to compel Utah, Gulf, GMCL, Noranda, Denison Canada, Engelhard, Getty, Federal, and Rio U.S. to produce foreign documents are granted in their entirety and are granted in part and denied in part as to Uranerz and are denied as to Deni- son U.S. Defendants’ alternative objections to produc- tion of foreign documents on grounds such as attorney- client privilege and overbroad definitions are reserved for ruling at such time as defendants announce their ability to comply with this order. Production hereunder to be made on or before January 2, 1980. The motions of defendants Getty, Gulf and Utah to compel Westinghouse to comply with Pretrial Order No. 5 are granted in part and Westinghouse is directed to provide defendants with a list identifying the foreign documents which it has produced from its domestic files. ENTER: /s/ Prentice H. Marshall PRENTICE H. MARSHALL United States District Judge Dated: November 7, 1979. 45a APPENDIX F EXCERPTS FROM MARCH 26, 1980 TRANSCRIPT OF PROCEEDINGS IN NOR'HERN DISTRICT OF ILLINOIS CASE NO. MDL 342, pp. 11-12 * * * * [11] THE COURT: My friend, I want to tell you one thing: I am not going to change the scheduling of this case with the rise and fall of the Canadian Government or any other common- [12] wealth government. We have stayed our hands. We have deferred to them. And we are not going to do it anymore. So from now on, if you want to make that argument, put it in writing, make it on the record, but don’t take up my time with it. And you may transcribe these remarks and you may transmit them to the Government of Canada, Australia, Great Britain and South Africa. * * * * THE COURT: I hope that Trudeau has more sense than Clark, but I doubt it, because he was there before Clark. 46a APPENDIX G IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION MDL 342 IN RE URANIUM ANTITRUST LITIGATION Master File No. 342 A IN RE TENNESSEE VALLEY AUTHORITY URANIUM ANTITRUST LITIGATION No. 76 C 3830 WESTINGHOUSE ELECTRIC CORPORATION, Plaintiff, V. Rio ALGOM LIMITED, et al., Defendants. MEMORANDUM OF GOVERNMENT OF CANADA AS AMICUS CURIAE The Government of Canada hereby appears as amicus curiae, responding to this Court’s invitation to express its views on the relief sought in pending disvovery mo- tions filed by Tennessee Valley Authority (TVA) and Westinghouse Electric Corporation (Westinghouse). The motions in question urge this Court to compel parties to 47a this lawsuit to produce documents and information in contravention of the Canadian Uranium Information Se- curity Regulations (Regulations). The Government of Canada respectfully submits that the course of judicial action urged by movants would violate established prin- ciples of international comity embraced by United States law. Part I of this brief (and Attachments A-D)? sets forth pertinent background facts, focusing particularly on the critical importance that Canada attaches to those national policies and laws underlying the present dispute. Part II of this brief discusses the applicable legal prin- ciples that compel the conclusion that this Court should defer to Canadian law. 1 The deference to be accorded to the Regulations appears to be at issue in TVA’s motions directed to Uranerz, Noranda Mines, Rio Algom, Gulf Oil and Gulf Minerals Canada, Ltd., and in West- inghouse’s motions directed to Rio Algom, Federal Resources, Getty Oil, Gulf Oil, Gulf Minerals Canada, Ltd., Noranda Mines and Denison Mines. The Court also has before it similar issues relating to Swiss, South African and Australian law. Further, we are in- formed that the United Kingdom, acting under its Shipping Con- tracts and Commercial Documents Act of 1964, has prohibited Rio Tinto Zinc, Ltd. from disclosing documents related to the interna- tional uranium marketing arrangement. 2 Attachment A is an October 14, 1977, press release issued by Hon. A. W. Gillespie, the Canadian Minister of Energy, Mines and Resources at that time, attaching (inter alia) the text of the Regu- lations and various pertinent diplomatic communications; Attach- ment B is a March 15, 1978 diplomatic note (No. 116) from Cana- dian Embassy to U.S. Department of State; Attachment C is Cana- da’s amicus curiae brief filed on April 17, 1978, in the United States Supreme Court in connection with General Atomic Co. Vv. Felter, 436 U.S. 904 (1978); Attachment D is a November 8, 1978 diplo- matic note (No. ECP-25) from Hon. Donald Jamieson, Canadian Secretary of State for External Affairs, to Mr. Thomas Enders, the United States Ambassador to Canada. 48a I. Background Facts Canada’s uranium resource industry expanded vigor- ously through the 1950’s, largely to meet United States demands. In the 1960’s, the United States government took actions aimed at protecting its domestic uranium producers, and effectively closed the large United States market to Canadian and other foreign uranium pro- ducers. These American actions threatened the survival of the entire Canadian uranium industry, thereby im- perilling Canada’s National Security and vital economic interests. In an effort to minimize the disruptive effects threat- ened by United States policies, the Canadian government, acting in cooperation with governments of other produc- ing countries, initiated and participated in an interna- tional uranium marketing arrangement. Canadian gov- ernment statements reflect its involvement in this arrangement: During the early 1970’s the Canadian government tried to elicit consuming nation support for the ura- nium industry and its dependent mining communities .... Lacking support from consuming nations, and convinced that a viable nucleus of the producing in- dustry was essential in the light of all projections of future demand, the Canadian government initi- ated discussions with producing nations which led ultimately to an informal marketing arrangement among non-U.S. producers. Att. A, Statement dated September 22, 1976. The Canadian Government .. . initiated the discus- sions which led to an informal marketing arrange- ment among non-U.S. producers. The Canadian Government took this initiative and secured compli- ance of Canadian producers with the terms of the arrangement because it was convinced that preser- 49a vation of a viable uranium producing industry was essential to the Canadian national interest in the light of projections of future uranium requirements. The long history of close Canadian Government in- volvement in and regulation of the uranium resource industry clearly establishes the degree to which the government regards the industry as vital to Cana- dian interests and the importance it consequently attaches to industry compliance with Government policy respecting uranium marketing. Att. D at 2. The purpose of the international marketing arrange- ment was to allocate the meager non-U.S. demand among the non-U.S. producers, and to stabilize prices for a tran- sitional period.* The arrangement did not apply to sales to consumers in the participating countries and in the United States. The marketing arrangements were dis- continued in 1975. During 1972-75, however, the par- ticipation of all Canadian uranium producers in this marketing arrangement was a matter of firm Canadian government policy. Compliance with this policy was se- cured primarily through the Atomic Energy Control Act and Regulations. This policy, which was defensive in nature and temporary in application, was considered to be in the vital national interest of Canada. Canada considered it contrary to her sovereign pre- rogatives for foreign tribunals to question the propriety or legality of the actions of Canadian uranium producers that were taken outside the United States and were re- quired by Canadian law or taken in implementation of ®The Canadian government, which had previously objected through diplomatic channels to the United States foreclosure of its uranium market, promptly advised the American government of the initiation of the marketing arrangement. See Att. A, Note No. 210, August 4, 1969; Aide-Memoire of July 24, 1970; Note 359, December 8, 1971; February 14, 1972 letter from H.C. Arm- strong to A.S. Freidman. 50a Canadian government policy. Accordingly, when it be- came clear that documents located in Canada bearing on the international uranium marketing arrangement might be removed to the United States in response to proceed- ings there, the Canadian government promulgated the Uranium Information Security Regulations, on Septem- ber 23, 1976. The Canadian government promulgated the Regulations to serve a vital national interest, par- ticularly the preservation of Canada’s past and future sovereign authority to secure compliance with its own laws and policies respecting a vital Canadian natural resource in the face of assertions of jurisdiction by non- Canadian tribunals. These Regulations were not procured by members of the uranium industry, and they were not adopted to protect the commercial interests of those com- panies.* The pertinent terms of the Regulations® are as fol- lows: No person who has in his possession or under hi‘ control any note, document or other written or printed material in any way related to conversa- tions, discussions or meetings that took place be- tween January 1, 1972 and December 31, 1975 in- * Westinghouse has flagrantly misrepresented the position taken by Joseph S. Stanford in a 1978 law review article, suggesting that Mr. Stanford stated that the Regulations were promulgated to pro- vide an ex post facto cloak for a commercially motivated combine. Westinghouse Mem. at 27. In fact, in that article Mr. Stanford affirmed the national interests that led to passage of the Regula- tions. (Mr. Stanford, formerly legal officer in the Canadian De- partment of External Affairs, was expressing his personal views). Westinghouse’s misrepresentations of Mr. Stanford’s remarks (Westinghouse Mem. at 25, 27) may be compared with the actual text of his article, which is entry 23 in the Appendix to the Memo- randum of Gulf Oil Company and Gulf Minerals Canada, Ltd. 5 P.C. 1976-2368, amended by P.C. 1977-2923 as of October 13, 1977. 5la volving that person or any other person in relation to the exporting from Canada or marketing for use outside of Canada of uranium or its derivatives or compounds, shall (a) release any such note, docu- ment or material, or disclose or communicate the contents thereof... unless... (ii) he does so with the consent of the Minister of Energy, Mines and Resources. *® The two Canadian court decisions which have considered these Regulations have upheld their validity.?’ Substan- tial criminal penalties are provided in the event that the Regulations are violated.® It has been the continuing and oft-stated policy of the Canadian government to enforce these Regulations. Thus, the Canadian government opposed an application for letters rogatory seeking information covered by the Regulations,*® and the Minister of Energy, Mines and Re- sources has refused all applications for exemptions or ® While the Regulations provide for waiver of the prohibition by the Minister, the High Court of Ontario on November 10, 1977, struck down the authority of the Minister to grant such dispensa- tions. Re Clark et al. and Attorney General 81 D.L.R. [3d] (Ont. High Ct. 1977). Since that time no Canadian officia] has had the authority to waive the terms of the Regulations. The Regulations also provide, in Section 3(a)(i), an exception for disclosure of documents or information when fequired by or under a law of Canada. *Re Clark et al. and Attorney General 81 D.L.R. [3d] (Ont. High Ct. 1977); Re Westinghouse Electric Corporation and Duquesne* Light Co. et al. 78 D.L.R. [8d] (Ont. High Ct. 1977). *The maximum penalty for violation of the Regulations is im- prisonment for up to five years and a fine not exceeding ten thou- sand dollars. Atomic Energy Control Act, R.S.C. 1970, c. A-19, Section 19(1). * Re Westinghouse Electric Corporation and Duquesne Light Co. et al., supra. 52a other relief from the terms of the Regulations which in- volved documents bearing upon the international market- ing arrangement.” Canada’s unwavering insistence that the Regulations be enforced reflects the governmental policy decision that disclosure of documents and infor- mation covered by the Regulations would be inimical to the national interest of Canada.” The Canadian government has, on a number of occa- sions, expressed the seriousness with which it regards efforts of U.S. litigants to obtain United States court orders that would induce behavior in Canada violative of the Regulations. For example, in a November 8, 1978 diplomatic note, Hon. D. Jamieson, Canada’s Secretary of State for External Affairs, stated: A situation in which courts of the United States imposed sanctions for failure to produce documents or information located in Canada where such pro- duction would violate Canadian laws and regulations would be a matter of serious concern to the Govern- ment of Canada because it would subordinate to the procedures of U.S. courts the authority of the Gov- ernment of Canada to prohibit the disclosure of certain information in Canada relating to the pro- duction and marketing of Canadian uranium. Such 10 Applications for such relief have been presented by various companies. The Minister refused all applications before Novem- ber 10, 1977, on the grounds that exemptions or other relief would be contrary to Canada’s national interest. Thereafter, the Minister refused all applications because he no longer had authority to grant exemptions or other relief. See note 6 supra. We note that one exemption from the Regulations was granted Before Novem- ber 10, 1977; it did notinvolve documents or litigation relating to the international marketing arrangement. 11 Although certain pleadings contain statements which may imply that the Regulations have been violated (e.g. Westinghouse Mem. at 15), Canada’s Attorney General does not have reason to believe that any violations have occurred. 53a a failure on the part of the courts in the United States to recognize the authority of the Canadian Government to prohibit such disclosure would be contrary to generally accepted principles of inter- national law and would have an adverse impact on relations between the USA and Canada. Att. D at 1. Canada’s concern extends to the present case, where the pending motions seek to compel certain parties to produce documents and information covered by the Regulations, i.e., documents located in Canada that relate to uranium exporting or marketing during 1972-75. II. Legal Discussion The starting point for consideration of the present motions is that the Uranium Information Security Regu- lations, expressing national policy on an issue of vital concern to Canada, prohibit the disclosure of a category of documents (or their contents) located in Canada that relate to uranium exporting or marketing. Canadian law provides for substantial criminal penalties in the event this prohibition is violated. Canada insists that the prohibitions contained in these Regulations be obeyed by all persons subject to them. These Regulations, an act of state that has the effect of barring certain discovery in the present litigation, are entitled to the full respect of this Court. Every sovereign state is bound to respect the inde- pendence of every other sovereign state, and the courts of one country will not sit in judgment on the acts of the government of another done ‘within its own territory. Redress of grievances by “:ason of such acts must be obtained through the means open to be availed of by sovereign powers as between themselves. Underhill v. Hernandez, 168 U.S. 250, 252 (1897). 54a As we have stated, these Regulations were put into place to protect Canada’s sovereign prerogatives and its pres- ent and future ability to organize sectors of its economy as it sees fit. They were not promulgated for the benefit of private commercial interests. In any event, the fac- tors in the Canadian political process that led to the pro- mulgation of these Regulations may not be the subject of American judicial inquiry or challenge. These Regu- lations were deferred to in the case of In Re Westing- house Electric Corp. Uranium Contracts Litigation, 563 F.2d 992 (10th Cir. 1977), where the Tenth Circuit ob- served : The records . . . are physically located in Canada. Such being the case, it would not seem unreasonable that the Canadian Government should have some- thing to say about how those records will be made available to interested outsiders. That Canada has a legitimate “national interest” in this matter is perhaps best illustrated by reading the opinion of the Ontario Supreme Court, wherein it... . deter- mined that the nondisclosure regulations were in furtherance of a national interest in controlling and supervising atomic energy. 563 F.2d at 998. Cases, such as this, involving potential conflicts be- tween the discovery procedures of United States federal courts '* and the laws of foreign sovereigns are deter- mined in accordance with principles of international comity, which are recognized by and reflected in United States law. E.g., Application of Chase Manhattan Bank, 297 F.2d 611, 6138 (2d Cir. 1962); cf. Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 423 (1964) (inter- national law principles as part of American law). These 12 That is, Rules 26-37 and 45, Fed.R.Civ.P, and Rule 17, Fed.R. Crim.P. We assume for present purposes that, but for the Canadian Regulations, the documents and information in question would fall within the scope of the civil discovery rules. 55a principles require, in appropriate cases, that U.S. courts refrain from enforcing the prescriptions of the Federal Rules of Civil Procedure. Such deference does not con- stitute, as certain parties would have this Court believe, an abdication of judicial responsibility to apply United States law. It represents, rather, a judicial decision that American law, because it incorporates principles of in- ternational comity, properly mandates a course of defer- ence. Canadian courts, like U.S. courts, recognize the pro- priety of deferring to foreign law in accordance with principles of comity. For example, in Frischke v. Royal Bank of Canada, 1977 17 O.R.2d 888 (Ontario C.A.), the Ontario Court of Appeal reversed a trial court’s order directing a third party to contravene Panamanian law and provide certain information. In reversing, the court cited analogous United States cases and declared: An Ontario court would not order a person here to break our laws; we should not make an order that would require someone to compel another person in that person’s jurisdiction to break the laws of that State. We respect those laws. The principle is well recognized. 17 O.R.2d at 399." We respectfully submit that deference to foreign law is required in this case by two factual circumstances, namely (a) that the documents sought are located in Canada, and (b) that the law of Canada prohibits the production or identification of such documents, subject to criminal sanctions. In cases involving these factual ele- ments, United States courts have consistently refused to 18 The Ontario court cited United States v. First National City Bank, 396 F.2d 897 (2d Cir. 1968) and Application of Chase Man- hattan Bank, 297 F.2d 611 (2d Cir. 1962). It observed that Ca- nadian courts would defer to foreign law except in “. . . cases of very special circumstances.” 17 O.R.2d at 399. 56a compel the production of documents,” reflecting the view that these particular factors tip the balance decisively and finally against the compulsion of discovery. In Re Westinghouse Electric Corp. Uranium Contracts Litiga- tion, 563 F.2d 992 (10th Cir. 1977) (law of Canada) ; Application of Chase Manhattan Bank, 297 F.2d 611, 618 (2d Cir. 1962) (law of Panama) ; see Federal Mari- time Commission v. DeSmedt, 268 F. Supp. 972, 974, 975 (S.D.N.Y. 1967) (law of Great Britain and Canada) ; see also Ings v. Ferguson, 282 F.2d 149, 152, 153 (2d Cir. 1960) (law of Canada); First National City Bank of N.Y. v. Internal Revenue Service, 271 F.2d 616, 619 (2d Cir. 1959), cert. denied, 361 U.S. 948 (1960) (law of Panama); see generally United States v. First Na- tional City Bank, 396 F.2d 897, 901-905 (2d Cir. 1968) (law of Germany).® Thus, in Ings v. Ferguson, the Second Circuit stated: 14 That is, they have either refused to enter an order directing production or, in the alternative, have refused to enter sanctions for a party’s failure to comply with such an order. The distinc- tion between a decision ordering discovery and a decision ordering sanctions is discussed infra at 15-19. 15In United States v. First National City Bank, 396 F.2d 897 (2d Cir. 1968), the Second Circuit, while upholding a contempt order imposed upon a grand jury witness who had refused to pro- duce documents because of German civil law, implicitly reaffirmed the principle that such compulsion would have been improper had a foreign law with criminal sanctions been involved: Citibank concedes, as it must, that compliance with the sub- poena does not require the violation of the criminal law of a foreign power .... or risk the imposition of sanctions that are the substantial equivalent of criminal penalties... . [T]he government urges vigorously ... [that] a witness... must show that following compliance it will suffer criminal liability in the foreign country. We would be reluctant to hold, however, that the mere absence of criminal sanctions abroad necessarily mandates obedience to a subpoena. . . . The vital national interests of a foreign nation, especially in mat- ters relating to economic affairs, can be expressed in ways other than through the criminal law. 396 F.2d at 901, 902 (citations omitted). 57a Upon fundamental principles of international comity, our courts dedicated to the enforcement of our laws should not take such action as may cause a violation of the laws of a friendly neighbor or, at the least, an unnecessary circumvention of its procedures. Whether removal of records from Canada is pro hibited is a question of Canadian law and is best resolved by Canadian courts. ... If upon such pro- ceedings, i.e. letters rogatory . . . production were declared illegal the motion to quash should be grant- ed . . . because the exception of illegality under foreign law would have been met. 282 F.2d at 152, 153 (citations omitted). Although other factual elements need not be consulted in deciding to defer to the Regulations here, we nonethe- less observe that other factors in the present setting but- tress the conclusion that deference is the proper course of action.'® (a) Canada is a friendly government. Ings v. Fergu- son, 282 F.2d 149, 152 (2d Cir. 1960). 16 The scope of considerations that may be relevant, depending upon the factual matrix of the particular situation, is indicated by § 40 of the Restatement of Foreign Relations Law (Second), which sets forth criteria governing application of the principles of comity and fairness when there are conflicting rules. The Restatement cites such factors as: “(a) vital national interests of each of the states, (b) the extent and the nature of the hardship that incon- sistent enforcement actions would impose upon the person, (c) the extent to which the required conduct is to take place in the territory of the other state, (d) the nationality of the person, and (e) the extent to which enforcement by action of either state can reasonably be expected to achieve compliance with the rule prescribed by that state.” This section of the Restatement has been cited with ap- proval by U.S. courts. E.g., In Re Westinghouse Electric Corp. Uranium Contracts Litigation, 568 F.2d 992, 997 (10th Cir. 1977); Timberlane Lumber Co. v. Bank of America, N.T. & S.A., 549 F.2d 597, 614 (9th Cir. 1976). 58a (b) The Uranium Information Security Regulations are expressive of a vital Canadian national interest. In Re Westinghouse Electric Corp. Uranium Contracts Liti- gation, 563 F.2d 992, 998 (10th Cir..1977). The impor- tance that the Canadian Government attaches to enforce- ment of these Regulations has been underscored by its numerous protests to the exercise of enforcement juris- diction, as reflected in the attachments to this memoran- dum. See In Re Grand Jury Investigation of the Ship- ping Industry, 186 F.Supp. 298, 318 (D.D.C. 1960) (foreign governmental protests caused court to delay production) ; cf. Arthur Andersen and Co. v. Finesilver, 546 F.2d 338 (10th Cir. 1976), cert. denied sub nom. Arthur Andersen and Co. v. Ohio, et al., 429 U.S. 1096 (1977) (lack of foreign protest cited as contributing to subpoena enforcement) ; United States v. First National City Bank, 396 F.2d 897 (2d Cir. 1968) (no foreign or American protest) .” (ce) In contrast to a government enforcement proceed- ing, the effort of TVA and Westinghouse to obtain dis- covery in these private antitrust actions does not involve vital national interests of the United States. See In Re Westinghouse Electric Corp. Uranium Contracts Litiga- tion, 563 F.2d 992, 999 (10th Cir. 1977). This is par- ticularly true where, as here, the Department of Justice has previously investigated the matter in dispute and completed a prosecution on behalf of the American gov- ernment. It should be noted that the Department of Justice was able to bring its investigation to conclusion 17 Westinghouse asserts that the absence of a protest from the United States Executive Branch is a weighty factor to be con- sidered with regard to comity. American judicial authorities, how- ever, indicate only that the absence of-an American protest may be significant where, unlike here, the foreign government has itself failed to protest. See cases cited pp. 13-14 supre, and Banco Ne- cional de Cuba V. Sabbatino, 376 U.S. 398, 418-420 (1964). 59a without having access to documents covered by the Regu- lations. (d) The Canadian and American governments have been engaged in consultations exploring cooperation in enforcement of the countries’ respective antitrust laws and avoidance of potential conflicts between the applica- tion of the United States antitrust laws and Canadian sovereign interests. These consultations are in an ad- vanced stage, and a judicial decision insensitive to Cana- dian sovereignty could adversely affect this process. See Federal Maritime Commission v. De Smedt, 268 F.Supp. 972, 974, 975 (S.D.N.Y. 1967) (conflict a matter for diplomatic negotiation); cf. American Industrial Con- tracting, Inc. v. Johns-Manville Corp., 326 F. Supp. 879 (W.D. Pa. 1971) (no international relations problem). These factors confirm and reinforce the conclusion that deference to the Regulations is required, and that the parties in this case may not be penalized for complying with them. The remaining question is essentially one of timing—that is, whether this Court should deny the Rule 37(a) motions because they seek orders requiring conduct in violation of Canadian law, or should direct production and put off the issue of comity until sanctions are sought for non-production. With all respect, the Canadian gov- ernment suggests that the first approach is to be pre- ferred in the present case. The weight of United States authority indicates that the prohibitions contained in foreign criminal laws should be considered in deciding whether to order production, | and that such an order should only be entered in the face of such a law when necessary to facilitate a clari- fication of the scope of foreign law or the enforcement intentions of the foreign sovereign. Thus, in Applica- tion of Chase Manhattan Bank, 297 F.2d 611 (2d Cir. 1962), where clarification was not needed, the Second Circuit affirmed a trial court’s refusal to compel produc- 60a tion. Conversely, in Ings v. Ferguson, 282 F.2d 149 (2d Cir. 1960), the same appellate Court affirmed a trial court’s decision to enforce a subpoena while a clarifica- tion of Canadian law was being sought, observing that the subpoena should be quashed if that clarification re- vealed that Canadian law prohibited production.’* Simi- larly, in Societe Internationale v. Rogers, 357 U.S. 197 (1958), which affirmed the entry of a production order, the Supreme Court stated: Petitioner is in a most advantageous position to plead with its own sovereign for relaxation of penal laws or for adoption of plans which will at the least achieve a significant measure of compliance... . United States courts should be free to require claim- ants of seized assets who face legal obstacles under the laws of their own countries to make all such efforts to the maximum of their ability.... We do not say that this ruling would apply to every situation where a party is restricted by law from producing documents over which it is other- wise shown to have control. Rule 34 is sufficiently flexible to be adapted to the exigencies of particular litigation. 357 U.S. at 205, 206. Here, the Canadian government has, on a substantial number of occasions, expressed its continuing intention to enforce the Security Regulations in accordance with their terms. It has denied applications for exemptions and other relief. There appears to be, accordingly, no justification for the entry of any production order.”* 18 Accord: First National Bank of N.Y. v. Internal Revenue Serv- ice, 271 F.2d 616, 619 (2nd Cir. 1959); see also Sneaker Circus, Inc. V. Carter, 566 F.2d 396, 400 n.10 (2nd Cir. 1977). 19 This history flatly refutes Westinghouse’s suggestion (see Westinghouse Mem. at 17, 25-27) that a court order might alter Canada’s insistence that its Regulations be obeyed. 6la Westinghouse and TVA nonetheless seek entry of a production order, urging this Court to postpone any con- sideration of Canadian law and comity until a later stage in this proceeding. Movants’ primary argument— namely, that this Court should simply disregard foreign law in deciding whether to order production—is at odds with United States case law, including the materials they cite. More particularly: (a) They refer to decisions indicating that this Court has the power to enter a production order despite con- flicting foreign law. The fact that this Court possesses such power does not, of course, suggest that it is inap- propriate for the Court to consider foreign law in de- ciding whether to order production.” As we have shown, the weight of authority supports such consideration here. (b) Movants not only propound a purported rule re- quiring postponement of comity issues in the absence of supporting decisions, but also seek to dismiss the line of Second Circuit decisions refusing to direct production on the fallacious ground that those cases have been dis- avowed by that Court. The fact is, however, there has been no such disavowal;*' indeed, the Second Circuit re- 20 Movants rely heavily upon the decision in Arthur Andersen and Co. V. Finesilver, 546 F.2d 338 (10th Cir. 1976), cert. denied sub nom. Arthur Andersen and Co. v. Ohio, et al., 429 U.S. 1096 (1977), in which the Tenth Circuit held that a trial court was not required to consider foreign law in entering a production order, and that the Court would therefore not mandamus the trial judge who had ordered production while ignoring comity considerations. It is one thing to say that a trial court is not required to consider comity, and quite another thing to say the court may not or should not consider such factors. The Andersen case does not stand for the latter proposition. 21The alleged disavowal cited by Westinghouse is supposedly contained in the Second Circuit’s 1968 decision in United States v. First National City Bank, 396 F.2d 897 (2d Cir. 1968), discussed note 15 supra. Westinghouse’s argument is untenable because the 62a cently reaffirmed these cases.” (c) Westinghouse incorrectly refers to the language of $40 of the Restatement of Foreign Relations Law (Second) as if it supported a two-step process whereby the court “prescribes” a rule of law by ordering produc- tion and considers comity only when it “enforces” a production order at the sanctions stage. In fact the Re- statement, in addressing the situation where two states have jurisdiction to “prescribe and enforce” rules of law, recognizes the obligation of all courts to consider conflicting foreign law whenever the enforcement of ex- isting legal prescriptions—such as those found in the Federal Rules—is at issue. Here, a production order would enforce the discovery Rules and, under § 40 of the Restatement, the principles of comity are to be considered by this Court in deciding whether such implementation is proper. Movants’ remaining argument for postponing a de- cision on deference to Canadian law is that a full factual record on the issues of defendants’ “good faith” could be developed after entry of a production order. The Canadian government of course takes no position on the allegations of discovery-related misconduct which are said to support the imposition of sanctions on various of the defendants. But the presence of such issues, and the need Citibank case did not involve a definitive foreign prohibition carry- ing criminal sanctions; the court in fact recognized that a produc- tion order would not have been proper in the face of foreign crimi- nal law. 22 See Sneaker Circus, Inc. Vv. Carter, 566 F.2d 396, 400 n.10 (2d Cir. 1977), where the court referred with approval to “the line of cases which holds that production of documents should not normally be ordered if such an order would cause an individual to violate foreign law,” citing prior Second Circuit decisions, while recognizing that the Tenth Circuit had permitted a different ap- proach to such orders in Arthur Andersen and Co. V. Finesilvcr, supra. 63a to resolve them, do not require the Court to order pro- duction in violation of Canadian law—which would sug- gest insensitivity to Canadian sovereign interests and principles of comity. This Court has authority, without directing production, to conduct a hearing on the issues of alleged misconduct and to compile a full factual rec- ord. The Court could then determine whether the failure of any party to make discovery had been caused by fac- tors independent to the Regulations and, in the event such factors were found to exist, to enter thereupuii an ap- propriate order and sanctions. See Independent Produc- tions Corp. Vv. Lowes, Inc., 27 F.R.D. 426 (S.D.N.Y. 1961). Such a procedure would conform with U.S. pro- cedures without trenching upon considerations of comity. III. Conclusion We respectfully urge this court, for the foregoing rea- sons, to uphold accepted principles of international comity by refusing to order behavior that would violate Cana- dian law. Respectfully submitted, /s/ Lionel Kestenbaum LIONEL KESTENBAUM /s/ Daniel R. Chemers DANIEL R. CHEMERS BERGSON, BORKLAND, MARGOLIS & ADLER 11 Dupont Circle, N.W. Washington, D.C. 20036 (202) 462-5930 Attorneys for Amicus Curiae Government of Canada May 21, 1979 64a APPENDIX H IN THE UNITED STATES DISTRICT COURT FOR THE- NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION MDL 342 IN RE URANIUM ANTITRUST LITIGATION Master File No. 342 A IN RE TENNESSEE VALLEY AUTHORITY URANIUM ANTITRUST LITIGATION No. 76 C 3880 WESTINGHOUSE ELECTRIC CORPORATION, Plaintiff, v. R10 ALGOM LIMITED, et al., Defendants. MEMORANDUM OF GOVERNMENT OF CANADA AS AMICUS CURIAE ON MOTIONS TO IMPOSE SANCTIONS FOR FAILURE TO PRODUCE DOCUMENTS WHOSE PRODUCTION IS PROHIBITED BY CANADIAN .LAW LIONEL KESTENBAUM BARRY R. GOLDSMITH BERGSON, BORKLAND, MARGOLIS & ADLER 11 DuPont Circle, N.W. Washington, D.C. 20036 (202) 462-5930 Attorneys for Amicus Curiae May 8, 1980 Government of Canada 65a IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION MDL 342 IN RE URANIUM ANTITRUST LITIGATION Master File No. 342 A IN RE TENNESSEE VALLEY AUTHORITY URANIUM ANTITRUST LITIGATION No. 76 C 3830 WESTINGHOUSE ELECTRIC CORPORATION, Plaintiff, v. RIo ALGOM LIMITED, et al., Defendants. MEMORANDUM OF GOVERNMENT OF CANADA ‘AS AMICUS CURIAE ON MOTIONS TO IMPOSE SANCTIONS FOR FAILURE TO PRODUCE DOCUMENTS WHOSE PRODUCTION IS PROHIBITED BY CANADIAN LAW The Government of Canada respectfully submits this memorandum as amicus curiae to. present its views on the propriety of imposing the sanctions sought by Westing- 66a house Electric Corporation (“Westinghouse”) and Ten- nessee Valley Authority (“TVA”) against certain de- fendants in the above entitled actions. The Government of Canada previously appeared as amicus curiae before this Court in connection with Westinghouse’s and TVA’s motions for an order to compel discovery.t In its Memo- randum Decision of November 7, 1979,? the Court adopted a.“two-step” approach to the discovery question ‘proposed by Westinghouse. It directed production of for- eign documents but deferred consideration of foreign law until an anticipated second step (on motions for sanctions) ‘ati which time it would place “the competing interests of the United States and the foreign govern- ments on a plane where the potential moderation of the exercise of their conflicting enforcement jurisdictions can be meaningfully considered.* The Government of Canada now requests the Court to consider the compelling inter- ests of international comity and foreign relations, and the interests of Canadian law and sovereignty. We submit that principles of international comity must be taken into account in determining the pending mo- tions. Under such principles, it would not be proper to take adverse action against any party because of the failure to produce documents or information when its failure is due to the fact that production is prohibited by the law of a friendly foreign country, such as Canada. 1Memorandum of Government of Canada as Amicus Curiae, dated May 21, 1979 (hereinafter referred to as “Canada Memo- randum”’). 2In re Uranium Antitrust Litigation, 480 F.Supp. 1138 (N.D. Ill. 1979). 3 Id. ab 1156. 67a The absence of such documents or information may have an effect upon the assessmert of the evidence before the Court in the light of the rules of burden of proof. In this case, the absence of evidence from Canada may be to the disadvantage of plaintiffs on. some issues and to the disadvantage of defendants on other. issues (e.9., proof of defenses based on foreign law). But these are consequences that flow from the absence of evidence— not from assigning fault or prejudice to any. party be- cause of. the non-production itself. It would be improper to resolve any issue adverse toa party in this case merely because that party declined to violate a criminal pro- hibition of the law of Canada and therefore was unable to produce documents subject ta this case. Furthermore, before considering the sanctions motions, it is the view of the Canadian Government that the Court should .ex- amine the extent of its subject matter jurisdiction. Such a consideraiton should assist in its disposition of the sanctions issues. The Canadian Government intends to seek leave of Court to file an amicus brief on the pend- ing motions of Denison, Gulf and GMCL which raise these jurisdictional questions. Part I of this memorandum, examines Canada’s long- standing and comprehensive government regulation of its uranium industry and the importance of the govern- ment’s steadfast adherence to the Canadian Uranium Information Security Regulations in the overall. regula- tory scheme. Part II of this memorandum speaks to the legal au- thority supporting the position taken by the Government of Canada. United States precedents require the consid- eration of the interests of foreign law and sovereignty. They also support the proposition that, under United. States law, a court may not impose any Rule 37(b) sanc- tion for failing to comply with a discovery order if the reason for non-production is a criminal prohibition under 68a foreign law rather than willfulness, bad faith or any fault of the party. Imposition of these sanctions, absent ‘the requisite finding of bad faith, would violate -estab- lished principles of international comity and would very likely have a deleterious effect on the relations between the United States and Canada. I. CANADA’S URANIUM RESOURCE INDUSTRY AND GOVERNMENT REGULATION A. The Development of the Canadian Government Pol- icy on the Uranium: Industry The Canadian uranium industry, since its birth in the late 1940’s, has developed primarily to supply the export market. Canadian Government policy governing the ex- port of Canadian’ uranium has evolved over the same period largely in response to changing market circum- stances but guided by a set of overall objectives that seek to bring optimum benefit to Canada from the devel- opment of its mineral. resources. These objectives devel- oped in cooperation with Provincial Governments have been : 1. to ensure adequate supplies for domestic needs; 2. to increase the return to Canadians from exportable surpluses; 8. to strengthen the knowledge base for: national decisionmaking ; 4. to contribute to orderly world mineral development and marketing; 5. .to realize opportunities for further processing; 6. to insure national self-determination in mineral - development. Policy statements which the Canadian Government has made with respect to uranium are attached as Appendix a? 69a A. In the early 1950’s, special incentives were given to the uranium industry to encourage its vigorous expansion largely to meet United States demand for: uranium for its nuclear weapons program. Prior to May 7, 1958, it was the Canadian “Government’s policy that Eldorado Mining and Refining Limited [a Crown corporation] be the sole buyer and seller of all uranium produced in Canada”.* As Eldorado was by legislation an agent of the Canadian Government for all of its purposes, the Government effectively controlled the volume and price at which uranium was exported from: Canada. In 1958, the Canadi [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1509%3A2. Public record. Not legal advice.