Amicus Curiae Brief — Intel Corp. v. Advanced Micro Devices, Inc

No. 02-572 NOV 95 2000

IN THE

Supreme Court of the Anited States

INTEL CORPORATION,

Petitioner,

Vv.

ADVANCED MICRO DEVICES, INC..,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF AMICUS CURIAE OF THE

NATIONAL ASSOCIATION OF MANUFACTURERS

IN SUPPORT OF PETITIONER

JAN S. AMUNDSON DONALD B. VERRILLI, JR.*

QUENTIN RIEGEL LARA M. FLINT

NATIONAL ASSOCIATION JENNER & BLOCK, LLC

OF MANUFACTURERS 601 Thirteenth Street, N.W.

1331 Pennsylvania Avenue,N.W. Washington, DC 20005

Washington, DC 20004 (202) 639-6000

(202) 637-3000 -

November 15, 2002 * Counsel of Record

WILSON-EPES PRINTING CO., INC. - (202) 789-0096 - WASHINGTON, D.C. 20001

TABLE OF CONTENTS

GR GE PCMEEEEED vec cccccscccesccesencces i

INTEREST OF AMICUS CURIAE .........0.000000e: l

INTRODUCTION AND SUMMARY OF ARGUMENT .. 2

REASONS FOR GRANTING THE PETITION ......... 5

I. THIS COURT SHOULD GRANT REVIEW TO

CLARIFY THAT PRIVATE ENTITIES SHOULD

NOT BE PERMITTED TO INVOKE SECTION

1782 TO OBTAIN DISCOVERY IN THIS

COUNTRY WHEN THE DISCOVERY IS NOT

PERMITTED IN THE FOREIGN PROCEEDING

THEY INVOKE TO JUSTIFY SEEKING

DISCOVERY IN THIS COUNTRY ............... 8

Il. THIS COURT SHOULD GRANT REVIEW TO

CLARIFY THAT DISCOVERY MAY NOT BE

OBTAINED UNDER SECTION 1782 IF A

FOREIGN ADJUDICATORY PROCEEDING

IS NOT PENDING OR IMMINENT ............. 12

PPE Tere T Ty eerrrre rere Terre 16

TABLE OF AUTHORITIES

CASES

In re Application of Asta Medica, S.A., 981 F.2d

Tis 9. Seperrrrrste ee

In re Application of Ishihara Chemical Co.,

251 F.3d 120 (2d Cir. 2001) ................

In re Application of Malev Hungarian Airlines,

966 7.26 97 GOOG GEUED v ec sivceccescnuns

In re Bayer, AG, 146 F.3d 188 (3d Cir. 1998) ....

Euromepa, S.A. v. R. Esmerian, Inc., 154 F.3d 24

vie . Pritt Tt

Fonseca v. Blumenthal, 620 F.2d 322 (2d Cir.

SUED oc ccscccecscssseeeeskueeunan

John Deere Ltd. v. Sperry Corp., 754 F.2d 132

GOOG TSTED. oo cccccsscccscensnsenee

In re Lancaster Factoring Co., 90 F.3d 38 (2d Cir.

rem

In re Letter of Request from Crown Prosecution

Service of United Kingdom, 870 F.2d 686 (D.C.

CR. FDEP ncccccccccececsnseseeeuneeeuee

In re Letter Rogatory From First Court of First

Instance in Civil Matters, Caracas, Venezuela,

42 F.36 306 (SG Cis. 1995)... ncvcccccccess

In re Letters of Request to Examine Witnesses

from the Court of Queen's Bench for Manitoba,

Canada, 59 F.R.D. 625 (N.D. Cal.), aff'd, 488

© Fit. je 3. Serer

TABLE OF AUTHORITIES - continued

Page

In re Letters Rogatory Issued by the Director of

Inspection of the Government of India, 385 F.2d

ceca eekcceasbescoec 12, 13, 15

In re Request for Assistance From Ministry of

Legal Affairs of Trinidad & Tobago, 848 F.2d

CGM CD gcecscccccecccceces 3, 8, 14, 15

In re Request for International Judicial Assistance

(Letter Rogatory) for the Federative Republic of

Brazil, 936 F.2d 702 (2d Cir. 1991) ......... 3, 13, 15

Societe Nationale Industrielle Aerospatiale v.

United States District Court for the Southern

District of Iowa, 482 U.S. 522 (1987) ........... 6,7

STATUTES

cee eGedesccsccccccccceeces passim

MISCELLANEOUS

Bruce W. Bean, Doing Business in the New

Russia: Rebirth of the Russian Nation, 35

EE icc kcedcecéeceeccccoccecs

Oscar G Chase, American “Exceptionalism”

and Comparative Procedure, 50 Am. J. Comp.

eee eee cee baecdecsccccccece 6,7

Lawrence W. Newman & Michael Burrows,

U.S. Evidence for Foreign Tribunals, 6/30/95

Tee ee eck ced eeecoences 10

iv

TABLE OF AUTHORITIES - continued

Craig P. Wagnild, Civil Law Discovery in Japan:

A Comparison of Japanese and U.S. Methods of

Evidence Collection in Civil Litigation, 3 Asian-

Pe ss DOE o dcudccusenesueucuecst 6

Jeffrey A. Wortman, /n Search of Discovery: the

Split Between the Circuits Surrounding a

Threshold Discoverability Requirement to

Provide Assistance under 28 U.S.C. § 1782,

Fe Ee Ces SEP ENED co cv ecccscéécavceees 11

http://europa.eu.int/comm/secretariat_general/sgb/

droit_com/pdf/infr_statseriel_tablell_en.pdf ....... 5

PU, oc knccéckcctccisiostisccdedeine 6

WD ccccanncocccccoseséesconiaces 6

INTEREST OF AMICUS CURIAE

The National Association of Manufacturers (NAM) —

eighteen million people who make things — is the nation’s

largest industrial trade association. The NAM represents

14,000 members (including 10,000 small and mid-sized

companies) and 350 member associations serving

manufacturers and employees in every industrial sector and

all 50 states.

NAM members have an important interest in the correct

interpretation and enforcement of 28 U.S.C. § 1782. Many

NAM members do business in foreign countries, and are thus

subject to the kind of official investigations that gave rise to

the discovery dispute addressed by the Ninth Circuit in this

case. By vastly expanding the scope of allowable discovery

in this country pursuant to § 1782, the Ninth Circuit’s ruling

threatens a significant increase in the already substantial

burdens and costs American corporations face as a result of

judicial discovery. The Ninth Circuit’s ruling also poses the

particular danger of allowing companies that do business

overseas to obtain sensitive, and competitively damaging,

information from their business rivals by the simple

expedient of petitioning foreign enforcement authorities to

commence an investigation — even where the foreign

authority would not itself authorize discovery and where the

company seeking the discovery is not a party to any foreign

judicial proceeding.

The NAM seeks review because it believes that the

Ninth Circuit’s egregiously expansive reading of § 1728

should be reversed, and that the provision should be

interpreted in a manner that comports with the intent of

Congress and with common sense. At a minimum, however,

achieving a clear and uniform national rule concerning the

scope of allowable discovery under § 1782 is important to

2

NAM members and to other businesses that are, or are

contemplating, doing business in foreign countries. Such

companies need to be able to factor the costs and risks of

such discovery (especially the risk of disclosure of valuable

competitive information) into their assessments of the

wisdom of entering new markets.’

INTRODUCTION AND SUMMARY OF ARGUMENT

As the petition for certiorari filed in this case

demonstrates, the Ninth Circuit’s interpretation of 28 U.S.C.

§ 1782 raises two significant issues on which the Circuits

are in direct conflict.

The first conflict involves the question whether a private

entity may obtain discovery in this country pursuant to

§ 1782 when the same discovery is not authorized in the

alleged foreign “proceeding” on which the entity relies to

invoke § 1782 in the first place. The Ninth Circuit has held

in this case that discovery under § 1782 is available in those

circumstances. Pet. App. 8a. The Second and Third Circuits

have similar rules. Euromepa, S.A. v. R. Esmerian, Inc., 154

F.3d 24, 28 (2d Cir. 1998); In re Bayer, AG, 146 F.3d 188,

193 (3d Cir. 1998). The First, Fifth and Eleventh Circuits

hold that discovery under § 1782 is not available in those

circumstances. Jn re Application of Asta Medica, S.A., 981

F.2d 1, 7 (Ist Cir. 1992) (“a litigant requesting assistance

‘Pursuant to Rule 37.2 of the Rules of this Court, the parties have

consented to the filing of this brief. The parties’ letters of consent are on file

with the Clerk of the Court. Pursuant to Rule 37.6 of the Rules of this

Court, the NAM states that no counsel for a party has written this brief in

whole or in part and that no person or entity, other than the amicus curiae,

its members, or its counsel, has made a monetary contribution to the

preparation or submission of this brief.

3

under Section 1782 has to show that the information sought

in the United States would be discoverable under foreign

law”); In re Letter Rogatory From First Court of First

Instance in Civil Matters, Caracas, Venezuela, 42 F.3d 308,

310 (Sth Cir. 1995) (same when private party makes request);

In re Request for Assistance From Ministry of Legal Affairs

of Trinidad & Tobago, 848 F.2d 1151, 1156 (11th Cir. 1988)

(same).

The second conflict involves the question whether an

adjudicative proceeding must be pending, or at least

imminent, in a foreign tribunal before discovery under

§ 1782 is permitted in this country. In this case, the Ninth

Circuit refused to impose such a limitation. Pet. App. 6a.

The Second Circuit, in contrast, requires that a foreign

adjudicatory proceeding be imminent before granting § 1782

discovery. Jn re Application of Ishihara Chem. Co., 251

F.3d 120 (2d Cir. 2001); Jn re Lancaster Factoring Co., 90

F.3d 38, 42 (2d Cir. 1996); In re Request for Int'l Judicial

Assistance (Letter Rogatory) for Federative Republic of

Brazil, 936 F.2d 702, 706 (2d Cir. 1991). See also In re

Request for Assistance From Ministry of Legal Affairs of

Trinidad & Tobago, 848 F.2d at 1155-56 (indicating that

private party may need to be actual litigant in pending

proceeding to invoke § 1728).

There is a pressing need for resolution of these conflicts.

The issues are certain to recur. Indeed, they will arise more

frequently as commerce becomes increasingly global in

scale. The current conflicts encourage inappropriate forum-

shopping. And the scope of § 1782 discovery to which NAM

members, and other U.S. companies, will be subjected will

be determined by the fortuity of where they are located rather

than by a uniform national rule. Moreover, the Ninth

4

Circuit’s expansive interpretation of § 1782 raises serious

issues of international comity by allowing foreign litigants to —

circumvent the limits on discovery that foreign nations have

imposed, and thereby threatens to undermine fundamental

choices these nations have made about how to structure their

judicial systems.

Most importantly for NAM members and other U.S.

businesses, the Ninth Circuit’s sweeping expansion of

§ 1782 discovery will inflict serious harms and lead to

widespread abuse. It should go without saying that the

judicial discovery process already imposes massive burdens

and costs on American businesses, even in the purely

domestic context. ~ :form efforts in this country uniformly

focus on simplifying and streamlining the discovery process

to make it less burdensome, costly and contentious. The

Ninth Circuit’s reading of § 1782 threatens a dramatic

increase of the very burdens and costs that federal and state

authorities in this country have been striving to control. In

this case, the Ninth Circuit adopted the most sweeping

interpretation of § 1782 possible, choosing at every turn to

reject sensible limits that other Circuits have placed upon the

availability of such review. And the court did so for reasons

untethered to any purpose of Congress or to common sense.

Section 1782 was enacted to further international comity by

assisting foreign and international tribunals in developing

evidence relevant to their functions. The Ninth Circuit has

gone far beyond that objective — indeed, it has turned that

objective on its head — by authorizing domestic discovery

whenever a private company petitions a foreign

governmental entity for relief, irrespective of whether that

entity would grant the discovery and irrespective of whether

it would even conduct an adjudicatory proceeding.

5

REASONS FOR GRANTING THE PETITION

The Ninth Circuit’s expansive interpretation of 28

U.S.C. § 1782 will inflict serious practical harms on NAM

members and other U.S. companies. The decision has the

potential to affect each and every one of the thousands of

U.S. firms that operate or export overseas — as well as their

corporate affiliates, investors, officers and employees located

in the United States.

To understand the scope of the problem caused by the

Ninth Circuit’s reading of § 1782, it is critical at the outset to

bring into focus both the enormous range of foreign

investigations and proceedings to which American

companies are now routinely subject and the fundamental

differences between our system of adjudicating legal disputes

and those of most other nations of the world. U.S.-based

companies are subject to the jurisdiction of foreign

authorities in any number of subject areas, from intellectual

property rights to environmental issues to antitrust and

competition matters to basic contract disputes. Numerous

foreign and international entities investigate potential legal

violations by U.S. firms. Many institute investigations in

response to complaints from private parties. The European

Commission itself has fifteen different Directorates General

governing various aspects of European Union law, from

antitrust policy to customs requirements. Indeed, the

European Commission entertained 1,300 complaints of

infringement in 2001 alone, in addition to the investigations

that the Commission instituted on its own.’ Likewise,

individual nations empower countless agencies — from

*See http’//europa.eu.int/comm/secretariat_general/sgb/

droit_com/pdf/infr_statseriel_ tablel1 en.pdf.

6

securities commissions to tax regulators to competition

authorities — to investigate companies operat::g in those

countries. For example, the Republic o/ Ireland’s

Competition Authority investigates monopolies, mergers and

cartels, see www.tca.ie; the Canadian International Trade

Tribunal conducts inquiries into dumping, NAFTA

compliance and other trade-related issues, see

www.citt-tcce.gc.ca; and the Australian Securities and

Investments Commission inquires into various complaints

about corporations, see WWW.aSIC.gOVv.au.

In foreign investigations and proceedings, discovery is

typically far more limited than in American courts. See

Societe Nationale Industrielle Aerospatiale v. United States

District Court for the Southern District of Iowa, 482 U.S.

522, 542 (1987) (“It is well known that the scope of

American discovery is often significantly broader than is

permitted in other jurisdictions . . .”). For example,

“{njothing approaching [American] out-of-court fact

discovery is permitted by civil law courts” in continental

Europe. Oscar G Chase, American “Exceptionalism” and

Comparative Procedure, 50 Am. J. Comp. L. 277, 293

(2002). Even compared to other common law legal systems,

American discovery rules are far broader. See id. at 294

(American discovery rules provide “a set of mandatory

investigation tools available to private litigants not found in

the United Kingdom or elsewhere’). See also, e.g., Bruce W.

Bean, Doing Business in the New Russia: Rebirth of the

Russian Nation, 35 Int’| Law. 961, 990 (2001) (“There is no

discovery, as American lawyers know it, involved in Russian

litigation.”); Craig P. Wagnild, Civil Law Discovery in

Japan: A Comparison of Japanese and U.S. Methods of

Evidence Collection in Civil Litigation, 3 Asian-Pac. L. &

Pol’y J. 1 (2002) (explaining stricter limitations on discovery

7

in Japanese litigation). Other countries not only place more

limitations on document discovery, but also typically do not

permit any testimonial discovery or discovery of entities that

are not parties to the lawsuit. See Chase, 50 Am. L. Comp.

L. at 294; Societe Nationale Industrielle Aerospatiale, 482

U.S. at 561 n.18 (Blackmun, J., dissenting) (“In England, for

example, although document discovery is _ available,

depositions do not exist, interrogatories have a strictly

limited use, and discovery as to third parties is not generally

allowed.”) (citation omitted).

It is one thing for NAM members and other American

companies to be subject to the jurisdiction, laws and

regulatory procedures of the foreign nations in which they do

business. It is quite another to subject these companies to

onerous American-style discovery sought by their direct

competitors — both foreign and domestic — when that

discovery is unauthorized by the foreign country whose laws

the competitor invokes and when the competitor is not a

party to any pending or even imminent adjudicatory

proceeding in a foreign country. In both of these key respects

— allowing discovery that another nation would not allow

and allowing discovery even where an adjudication is not

imminent — the Ninth Circuit has ignored sensible, and

textually supported, limitations on the scope of § 1782

imposed by other Courts of Appeals. The bizarre result of

this remarkably broad interpretation of the statute is that U.S.

companies and related third parties are vulnerable to

wide-ranging, American-style discovery simply because they

operate overseas and for no other reason.

8

I. THIS COURT SHOULD GRANT REVIEW TO

CLARIFY THAT PRIVATE ENTITIES SHOULD

NOT BE PERMITTED TO INVOKE SECTION

1782 TO OBTAIN DISCOVERY IN_ THIS

COUNTRY WHEN THE DISCOVERY IS NOT

PERMITTED IN THE FOREIGN PROCEEDING

THEY INVOKE TO JUSTIFY SEEKING

DISCOVERY IN THIS COUNTRY.

The Ninth Circuit’s interpretation of § 1782 produces

unfair and abusive results, disadvantages NAM members and

other U.S. firms in overseas legal battles against foreign

opponents, and disregards principles of international comity.

1. Allowing § 1782 to be used in the manner it was used

here will severely disadvantage American companies

involved in disputes with foreign competitors who do not do

substantial business in the United States. Under the Ninth

Circuit’s rule, such foreign competitors can obtain discovery

from both U.S. firms and related third parties under broad

American discovery rules, while remaining subject

themselves only to the more limited rules of the jurisdiction

where the foreign proceeding has been instituted.

To eliminate that inequity, several Courts of Appeals

have held that private parties cannot invoke § 1782 if the

information sought would not be discoverable in the foreign

proceeding. See Jn re Application of Asta Medica, S.A., 981

F.2d at 5-6; In re Request for Assistance from Ministry of

Legal Affairs of Trinidad and Tobago, 848 F.2d at 1156; Jn

re Letter Rogatory from the First Court of First Instance in

Civil Matters, Caracas, Venezuela, 42 F.3d at 310. As the

First Circuit explained, “a United States party involved in

litigation in a foreign country with limited pre-trial discovery

9

will be placed at a substantial disadvantage vis-a-vis the

foreign party. All the foreign party need do is file a request

for assistance under Section 1782 and the floodgates are open

for unlimited discovery while the United States party is

confined to restricted discovery in the foreign jurisdiction.”

In re Application of Asta Medica, 981 F.2d at 5-6. Imposing

the discoverability test on private parties invoking § 1782

avoids “assisting a foreign litigant who desires to circumvent

the forum nation’s discovery rules by diverting a discovery

request to an American court.” Jn re Letter Rogatory from

the First Court of First Instance in Civil Matters, Caracas,

Venezuela, 42 F.3d at 310; see also John Deere Ltd. v. Sperry

Corp., 754 F.2d 132, 136 (3d Cir. 1985) (refusing to

“countenance the use of U.S. discovery procedures to evade

the limitations placed on domestic pre-trial disclosure by

foreign tribunals”).

For example, in Jn re Application of Malev Hungarian

Airlines, 964 F.2d 97 (2d Cir. 1992), a U.S. airplane engine

manufacturer was subject to burdensome discovery pursuant

to § 1782 merely because it filed a basic breach of contract

suit in Hungarian court against Malev, the Hungarian

national airline. Four days after answering the complaint in

Hungarian court, Malev invoked § 1782, seeking depositions

of officials of the American manufacturer as well as

wide-ranging document discovery, including documents

related to the manufacturer’s contracts with other Eastern

European national airlines and its development of certain jet

engines. See id. at 98-99, 103. The district court denied the

request because Malev had not first sought the discovery in

Hungarian court, and cited the heavy burdens such an

expansive reading of § 1782 would impose on U.S. courts.

But the Second Circuit reversed — despite the fact that the

American company had already subjected itself to the

10

jurisdiction of the Hungarian court and that Malev’s broad

discovery requests appeared to be “part of a strategy of delay

and trench warfare.” Jd. at 103. The dissenting judge sharply

rejected the contention that “section 1782 can be used as a

matter of right against party litigants to supplant foreign

procedures with discovery under United States rules,”

particularly “where the party and all the information sought

are . . . subject to the process of the foreign court.” /d. at

105-06 (Feinberg, J., dissenting). The dissent further

predicted serious consequences for U.S. courts themselves if

they continued to allow such broad discovery under § 1782:

“{I]f the majority opinion stands, United States courts can be

required to become global ‘Special Masters for Discovery’ to

supervise proceedings in any court in the world . . . if either a

litigant in the foreign court or its evidence can be found

here.” Jd. at 103 (Feinberg, J., dissenting) (citations and

quotation marks omitted). As commentators have explained

in reaction to such decisions, “(t]he statute one-sidedly

makes the United States person subject to the full range of

discovery, as if the case were pending in the United States,

whereas the foreign adversary — unless it ‘resides or is found’

in the United States — is not subject to the statute and is thus

obliged to provide only such evidence as it may be required

to make available under the rules of the foreign tribunal.”

Lawrence W. Newman & Michael Burrows, U.S. Evidence

for Foreign Tribunals, 6/30/95 N.Y.L.J. 3 (col. 1); see also

id. (“The consequence could be the expansive, almost

routine, use of United States evidence-gathering processes by

litigants in foreign cases involving either United States

parties or transactions with links to the United States.”’).

2. The Ninth Circuit’s decision invites abuse even

where — as here — both competitors have a significant

presence in the United States. Under the Ninth Circuit’s

11

view of § 1782, as long as a domestic entity can find a

foreign market in which its rival competes, that entity can

invoke a proceeding in that foreign country and then obtain

discovery in this country that it otherwise could obtain only

by undertaking the substantial obligations of initiating a

lawsuit. Companies will, therefore, have opportunities to

obtain the sensitive business information of their rivals in

circumstances where they would not otherwise be entitled

even to seek it.

3. The Ninth Circuit’s interpretation of § 1782 also

ignores principles of international comity by placing the U.S.

legal system “on a collision course with foreign tribunais and

legislatures, which have carefully chosen the procedures and

laws best suited for their concepts of litigation.” Jn re

Application of Asia Medica, 981 F.2d at 6. Broad discovery

is not contemplated by the other procedural rules in foreign

proceedings. As demonstrated, most foreign nations do not

provide the kind of expansive discovery that the judicial

systems of this nation allow. The Ninth Circuit’s reading of

§ 1782 allows participants in foreign proceedings to end-run

those limitations, and thus disrespects the fundamental

choices other nations have made about how to structure their

legal systems. See Jeffrey A. Wortman, Jn Search of

Discovery: The Split Between the Circuits Surrounding a

Threshold Discoverability Requirement to Provide

Assistance Under 28 U.S.C. § 1782, 30 Tex. Int’! L.J. 583,

592 (1995).

12

II. THIS COURT SHOULD GRANT REVIEW TO

CLARIFY THAT DISCOVERY MAY NOT BE

OBTAINED UNDER SECTION 1782 IF A

FOREIGN ADJUDICATORY PROCEEDING IS

NOT PENDING OR IMMINENT.

The Ninth Circuit also inappropriately rejected another

sensible limit that other Circuits have placed on the

availability of § 1782 discovery: the requirement that a

foreign adjudicatory proceeding be pending, or at least

imminent. The provision’s text makes clear that Congress

did not allow private parties to seek discovery in the United

States when there is no ongoing, or at least impending,

“proceeding in a foreign or international tribunal.” 28 U.S.C.

§ 1782(a). But the Ninth Circuit did just that, permitting

Advanced Micro Devices to obtain American-style discovery

from Intel — its chief competitor — even though the

European Commission was conducting only a preliminary

inquiry into potential antitrust violations, and no proceeding

was even remotely imminent. See Pet. at 12-16; Pet. App.

3a-7a. That decision has far-reaching implications, not only

for the many U.S. companies subject to European antitrust

inquiries like the one at issue here, but also for companies

and individuals subject to any number of investigations by

foreign and international entities.

Courts interpreting § 1782 often have sensibly denied

requests from foreign governmental entities serving purely an

investigatory function. For example, the Second Circuit has

refused to allow discovery by the Director of Inspection

enforcing India’s Income Tax Act because § 1782 cannot be

“so broad as to include all the plethora of [foreien]

administrators whose decisions affect private parties.” Jn re

Letters Rogatory Issued by the Director of Inspection of the

13

Government of India, 385 F.2d 1017, 1021 (2d Cir. 1967)

(Friendly, J.). Like tax assessors, other purely investigative

agencies also have been denied discovery where they had no

judicial function and no judicial or quasi-judicial proceedings

were contemplated. See, e.g., Jn re International Judicial

Assistance (Letter Rogatory) for the Federative Republic of

Brazil, 936 F.2d at 706 (denying request for written

discovery from Brazilian investigative agency); Fonseca v.

Blumenthal, 620 F.2d 322 (2d Cir. 1980) (per curiam)

(denying request for evidence by Superintendent of Exchange

Control in Colombia); /n re Letters of Request to Examine

Witnesses from the Court of Queen's Bench for Manitoba,

Canada, 59 F.R.D. 625, 629 (N.D. Cal.) (denying request for

testimony from Canadian Commission of Inquiry “whose

purpose is to investigate and report to the executive or

legislative branches of government”), aff'd, 488 F.2d 511

(9th Cir. 1973).

Under the Ninth Circuit’s interpretation, not only can

these foreign authorities obtain discovery from U.S.

companies when no judicial proceeding has been

contemplated, but also any party that claims to be

“interested” in an investigation could do the same. As a

practical matter, and as courts have recognized, such an

overly broad interpretation of § 1782 invites abuse. A

foreign party could request that a foreign entity investigate a

U.S. company solely so that the foreign party may invoke

§ 1782 — even where no foreign judicial proceeding is

ongoing or impending, and where the foreign party would

have no grounds to institute litigation in the United States or

abroad. In this way, § 1782 could be used to obtain

discovery where neither foreign nor domestic law would

otherwise permit it; indeed, U.S. companies could find

themselves besieged with discovery requests from abroad

14

despite being engaged in no pending or imminent overseas

litigation. And foreign prosecutors and private “interested”

parties could misuse information gathered via § 1782 in any

number of ways: to build an entirely different case against

the U.S. firm, either in U.S. covrt or overseas; to blackmail

certain persons within or related to the company; to profit by

selling the information to other entities; or (in the case of a

business rival) to compete more effectively against a U.S.

firm. That cannot be what Congress intended.

Indeed, that is precisely why U.S. courts have imposed

the types of limitations on § 1782 discovery that the Ninth

Circuit rejected below. Several courts require — even where

the request comes from a foreign government entity — that

the proceeding for which the discovery is sought be

imminent. That is, “to guard against abuse of section 1782,

the district court must insist on reliable indications of the

likelihood that [judicial or quasi-judicial] proceedings will be

instituted within a reasonable time.” Jn re Letter of Request

from Crown Prosecution Service of United Kingdom, 870

F.2d 686, 692 (D.C. Cir. 1989); see also In re Request for

Assistance from Ministry of Legal Affairs of Trinidad and

Tobago, 848 F.2d at 1156 (“If the judge doubts that a

proceeding is forthcoming, or suspects that the request is a

‘fishing expedition’ or a vehicle for harassment, the district

court should deny the request.”). These courts have

recognized that even foreign government institutions may

have ulterior motives for making their § 1782 requests, and

that therefore U.S. courts must be cautious in their

application of § 1782. As the Second Circuit put it in

rejecting a request from Brazilian authorities, “[w]e imply no

disrespect to the professionalism of the Brazilian

investigative agencies, but we are obliged to construe the

governing statute as it might be applied to a letter rogatory

15

from any country in the world.” /n re International Judicial

Assistance (Letter Rogatory) for the Federative Republic of

Brazil, 936 F.2d at 706; see also In re Letters Rogatory

Issued by the Director of Inspection of the Government of

India, 385 F.2d at 1020 (Congress did not “authoriz[e] a

district court to execute letters rogatory whenever requested

by a foreign country or a party there”). The risk of abuse is

even more acute when private parties are invoking the

provision, which is why the Eleventh Circuit has explained

that a private individual seeking discovery “may need to be a

litigant in a pending proceeding in order to be an ‘interested

person”” under § 1782. Jn re Request for Assistance from

Ministry of Legal Affairs of Trinidad & Tobago, 848 F.2d at

1155 (emphasis added). Indeed, without such limitations,

one could imagine a scenario where private individuals

collude with foreign government officials to institute a

preliminary investigation of a U.S. rival so that they can

invoke § !782 to obtain otherwise protected information

from the U.S. company.

The Ninth Circuit's decision entirely ignores the careful

balance struck by other courts to combat these opportunities

for abuse of the American discovery process. This Court

should grant certiorari and reverse.

16

CONCLUSION

The Petition for a Writ of Certiorari should be granted.

Respectfully submitted,

Jan S. Amundson Donald B. Verrilli, Jr.*

Quentin Riegel Lara M. Flint

NATIONAL ASSOCIATION JENNER & BLock, LLC

OF MANUFACTURERS 601 Thirteenth Street, N.W.

1331 Pennsylvania Avenue, Washington, DC 20005

N.W. (202) 639-6000

Washington, DC 20004

(202) 637-3000

November 15, 2002 *Counsel of Record