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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0610%3A17

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2003
- **Citation:** 537 U.S. 1102

## Text

No. 02-572 OTEINE 07 TH

ne

In the Supreme Court of the Anited States

INTEL CORPORATION,

Petitioner,
V.

ADVANCED MICRO DEVICES, INC.,

Respondent.

On Writ of Certiorari to the United States
Court of Appeals for the Ninth Circuit

BRIEF OF THE CHAMBER OF COMMERCE OF
THE UNITED STATES AS AMICUS CURIAE
IN SUPPORT OF PETITIONERS

ROBIN S. CONRAD Roy T. ENGLERT, JR.*
National Chamber : MAX HUFFMAN
Litigation Center, Inc. Robbins, Russell, Englert,
1615 H Street, N.W. Orseck & Untereiner LLP
Washington, D.C. 20062 1801 K Street, N.W.
(202) 463-5337 Suite 41]

Washington, D.C. 20006
(202) 775-4500

* Counsel of Record

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TABLE OF CONTENTS

Se Ge HF REOEEED occ cccccceseseveseces
INTEREST OF THE AMICUS CURIAE ............
EEE Sateueecdcesébesenscecnedeceneus

A. The Statutory Scheme .......cccccccccces

B. The Proceedings Below and the

Ninth Circuit’s Decision .................

I. Judicial Assistance Under Section 1782 Is
Available to Litigants, to Persons
Otherwise Denominated “Interested Persons”
Under Applicable Foreign Law, and to the
Foreign or International Tribunal —

But Not to Respondent ..................

II. Section 1782 Permits Judicial Assistance
in Connection With A Proceeding in a
Foreign or International Tribunal — And Not
as Part of a Mere Investigation by

Law-Enforcement Authorities .............

Ill. Section 1782 Does Not Authorize
Circumvention of Foreign Tribunals’

Limitations on Discovery ................

EY bavedscensandivececcceecsveeves

ii

TABLE OF AUTHORITIES

Page(s)
Cases:
AKZO Chemie BV v. Commission,
1 CAGLR. 238 GB.CS. FORE oc cc cccsvennseepuens 7
Department of Revenue v. ACF Indus., Inc.,
SEO UB. SSS CED «oc ccncesasaueheneeee 12, 19
Egelhoff v. Egelhoff, 532 U.S. 141 (2001) ............ 1]

F. Hoffman-LaRoche, Ltd. v. Empagran S.A.,
No. 03-724, cert. granted Dec. 15,2003 ... 2,27, 28, 29

Fonseca v. Blumenthal,
vod w Br-fy fo o. 19

In re Application for an Order for Judicial
Assistance in a Foreign Proceeding,
147 F.R.D. 223 (C.D. Cal. 1993), overruled by
Advanced Micro Devices, Inc. v. Intel Corp.,
292 F.34 664 (Sth Civ. 2002)... ccccccccescccess 28

In re Application of Asta Medica, S.A.,
Jey i te 2. | eee 25, 27, 28

In re Application of National Broadcasting Co.,
No. M-77 (RWS),1998 WL 19994
(S.D.N.Y. Jam. 3i, GGG)... 0 0see0eeeeneee 25-26

In re Euromepa, 154 F.3d 24 (2d Cir. 1998) ........... 22
In re International Judicial Assistance for the

Federative Republic of Brazil Gen. Univ.

Trading Corp., 936 F.2d 702 (2d Cir. 1991) ....... 21

In re Ishihara Chemical Co.,
231 F.36 120 (26 Cie. BBB4) oc cccccscvenene 22

ili
In re Lancaster Factoring Co.,
90 F.3d 38 (2d Cir. 1996) .............55. 13, 15, 16

In re Letter Rogatory from the Justice Court,
523 F.2d 562 (6th Cir. 1975) ........ 0.0 cece eens 3

In re Letters Rogatory Issued by Dir. of
Inspection of the Gov't of India,
385 F.2d 1017 (2d Cir. 1967) ..............4.4.. 5, 16

In re Malev Hungarian Airlines,
964 F.2d 97 (2d Cir. 1992) ...........0055. 8, 15, 26

In re Request for Judicial Assistance from
Ministry of Legal Affairs of Trinidad &
Tobago, 848 F.2d 1151 (2d Cir. 1988) 11, 12, 22, 23, 25

International Tel. & Tel. Corp. v. international

Bhd. of Elec. Workers, 419 U.S. 428 (1975) ....... 17
Kolovrat v. Oregon, 366 U.S. 187 (1961) ............. 17
Lujan v. Defenders of Wildlife,

re 13-14
Morales v. Trans World Airlines, Inc.,

ELECT TT TTI TT 20
PBGC v. LTV Corp., 496 U.S. 633 (1990) ............ 15
Republic of Kazakhstan v. Biedermann Int'l,

168 F.3d 880 (Sth Cir. 1999) ............44.. 16, 24

Rodriguez v. United States,
480 U.S. 522 (1987) (per curiam) ................ 15

S&S Machinery Co. v. Masinexportimport,
706 F.2d 411 (2d Cir.), cert. denied,
ee ccecccccccccocccece 17

Shaw v. Delta Air Lines, Inc., 463 U.S. 85 (1983) ...... 20

iv

Société Nationale Industrielle Aérospatiale v.

U.S. District Court, 482 U.S. 522 (1987) ieeaeus 25, 26
Sorenson v. Secretary of Treasury,

— . * 5 a ere ree 12
Stork Amsterdam BV v. Commission,

5 C.M.L.R. 31 (Ct. of First Instance 2000) ......... 7-8
United Sav. Ass'n of Texas v. Timbers of

Inwood Forest Associates, Ltd.,

Ge SED vocendchacncuneenenesiaseus 23
United States v. Lopez, 514 U.S. 549 (1995) ........... 20
Warren v. Wasserman, Comden & Casselman,

271 Cal. Rptr. 579 (Cal. App. 1990).............. 14
Statutes, Regulations, and Rules:
is Oe nc canenasosnsecanéetseus 14
Foreign Trade Antitrust Improvements Act,

ae in subacececsesndcetheouuseesasues 28
Antitrust Civil Process Act,

Bp Geese Oe SOUS occcccccccsccaucns 7, 14,18
es ED db besutdiaendaceuencecannaue 18
ep es te Sn dc dddnetcccceutnecnenuecuees 14
PED Scuoucssdcutadincsecenuuueunen 23, 24
SP ET coecesdécndadesasaauedsuaanene 23
Ss ED 6ueenccctsdédecuseeennansuneneues 7
es Oe sn dadeddetsekeseunssseeenias 12

CDE COD ivvnccceccciigescocen 4, 12, 19, 20, 25

Fp es OF GED 0 cv ednccécvcecavescccesedees 4,12
Ps UUEE a nbececedeaccesacsosesscesoseneds 4
SO OED cecncecncesecscncesececececes passim
49 U.S.C. § 1305(a)(1) (now 49 U.S.C. § 41713(b)(1)) .. 20
Act of June 25, 1948, ch. 646, 62 Stat. 949 ............. 3
Act of May 24, 1949, ch. 139, § 93, 63 Stat. 103 ........ 3

Act of 1994, Pub. L. 103-488 ..............0006. 24
Pub. L. No. 104-106, Div. A, Title XII,

SEE GED becccccosuensecesedsccneseceass 5, 23
European Council Regulation 17/62 ................. 18
European Council Regulation 17/64 .................. 7
Pe LG cccecdneseceecusecenccccoeséeotes 14
Pee Ee UD occ cccccvccccccavesesecsesedsuenses 2
BD Ge Ge BO cencccccccccccccscenseusacesds 2,14
Pes Se GO Te GRD scwccccccnnccescveqescontes 14
Pa Ee GOR TRAD Sccccecccecscccéstedasieses 26
PRED ch6csdceccdcdeeseeceesescunet 14
Fed. R. Civ. P.27......... ssdasukariedmasaasiecee 26
PO GES cncccdsaduucedccusecesseoacecess 19

Ue Se GS I cccccccceccccecosecsscececeses 19

Miscellaneous:

Antitrust Contact Information, published at
http://www.ftc.gov/ftc/bccontact.htm .............. 7

Complaints from the Public on Competition Matters,
published at http://europa.eu.int/comm/
competition/citizen/citizen_complaints en.html .... 6-7

Corporate Leniency Policy, 4 Trade Reg.
Rep. (CCH) 4 13,113 (Aug. 10, 2003) ............ 26

Deputy Assistant Attorney General Makan
Delrahim, Department of Justice Perspectives
on International Antitrust Enforcement: Recent
Legal Developments and Policy Implications
(Nov. 18, 2003), available at http://www.usdoj.
gov/atr/public/speeches/201509.pdf ........... 27, 29

EU Imposes Almost €70 Million in Fines for
Organic Peroxide Cartel Over 29 Years,
Vol. 85 ISSN No. 2135 (Dec. 12, 2003) ......... 26-27

European Commission, Eleventh Report on
OED cddcecdcéccoccocccecse 17

European Commission Directorate-General
for Competition, XXX7st Report on Competition
Policy (2001), available at http://europ.
eu.int/comm/competition/annual_reports/2001/

competition_policy/eu.pdf .................... ;- 6
How to Report a Possible Violation, published at |

http://www.usdoj.gov/atr/contact/newcase.htm .....\. 7
http://www.fic.gov/ftc/bccontact.htm .............. oe | 7
http://www.usdoj.gov/atr/contact.html#cases ........... | 7

S. REP. NO. 88-1580, 88th Cong., 2d Sess.
(1964), reprinted in 1964 U.S.C.C.A.N. |
DUE ceveidceceuceceens 3, 4, 5, 9, 12, 13, 25, 2. 28

vii

S. REP. No. 103-388, 103d Cong., 2d Sess. (1994)

BRIEF OF AMICUS CURIAE CHAMBER OF
COMMERCE OF THE UNITED STATES IN
SUPPORT OF PETITIONERS

INTEREST OF THE AMICUS CURIAE'

The Chamber of Commerce of the United States, the
world’s largest business federation, is a nonprofit corporation
organized under the laws of the District of Columbia. The
Chamber represents an underlying membership of more than
three million companies and professional organizations of every
size, in every industry sector, and from every region of the
country. An important function of the Chamber is to represent
the interests of its members in matters before Congress, the
Executive Branch, and the courts. To that end, the Chamber
regularly files amicus curiae briefs in cases that raise issues of
vital concern to the Nation’s business community. The Cham-
ber is well situated to address the merits of this case on behalf
of companies collectively responsible for a substantial portion
of total U.S. economic activity.

The Chamber is particularly concerned about ihe growing
trend of private actors — including litigants, class-action counsel,
and complainants before foreign administrative authorities — to
engage in global forum shopping by attempting to export U.S.
laws and procedures worldwide. More troubling is that these
actors recently have been successful in making U.S. courts
complicit in this process, despite foreign countries’ protests. In
one case in which this Court recently granted certiorari, foreign
litigants and their counsel sued in U.S. courts, alleging antitrust

' Pursuant to Rule 37.3 of the Rules of this Court, the parties have
consented to the filing of this brief. The parties’ letters of consent
have been lodged with the Clerk of the Court. Pursuant to Rule 37.6
of the Rules of this Court, the Chamber 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.

2

injuries sustained outside of U.S. commerce. F. Hoffman-
LaRoche, Ltd. v. Empagran S.A., No. 03-724, cert. granted
Dec. 15, 2003. In Empagran, the D.C. Circuit held plaintiffs
entitled to U.S. laws and procedures, regardless whether U.S.
laws and procedures were different from, or even inimical to,
those of the jurisdiction where any harm may have occurred. In
this case, respondent has convinced the Ninth Circuit that it
might be entitled to discovery of documents and testimony from
petitioner, based on the existence of a mere preliminary
investigation by the European Commission. Respondent claims
such a statutory right whether or not (1) it is a litigant before a
foreign tribunal; (2) there is any adjudicative proceeding before
a foreign tribunal under way at all; and (3) the laws and pro-
cedures of the foreign jurisdiction allow the discovery respon-
dent seeks.

The Chamber believes that the decision below impermis-
sibly broadens the scope of discovery allowed to private parties
seeking information from their business rivals under 28 U.S.C.
§ 1782. The unreasonably permissive rules applied below oper-
ate any time that the company from which discovery is sought
is subject to the jurisdiction of any foreign sovereign’s courts or
regulatory bodies. Burdensome discovery requests are not
unique to these broad interpretations of Section 1782, but the
Ninth Circuit’s decision magnifies the burden. Under that deci-
sion, parties can obtain discovery without themselves bearing
any of the expenses of litigation and without being required to
surmount even the low hurdles of Federal Rules of Civil Pro-
cedure 8 and 11. Important disincentives to harassing and un-
warranted discovery requests are eliminated. If the Ninth Cir-
cuit’s ruling stands, a business can obtain broad discovery by
merely filing a complaint with a foreign enforcement agency.

The Ninth Circuit’s ruling allows competitors to seek this
discovery even if the relevant foreign nation does not allow it.
That circumvention of foreign discovery rules can place compa-
nies like members of the Chamber, which have a presence in the
United States, at a substantial disadvantage vis-a-vis their

3

foreign rivals. Rivals can inquire into competitively sensitive
information, under the imprimatur of a U.S. District Court, even
though the information is not needed by the foreign sovereign’s
court or administrative body.

The Ninth Circuit attributed to Congress an intent to impose
substantial burdens on U.S. businesses conducting business in
foreign countries. Members of the Chamber, many of which
conduct business abroad and are therefore subject to the juris-
diction of foreign sovereigns’ courts and administrative bodies,
have a substantial interest in the restoration of appropriate limits
on discovery under Section 1782.

STATEMENT
A. The Statutory Scheme

Section 1782 of Title 28 of the U.S. Code was enacted to
permit district courts to assist litigants in foreign adversary
proceedings to obtain discovery in the United States. Congress
enacted the modern Section 1782 in 1948 and amended the
section in significant part in 1964.7 The 1964 amendments were
part of a larger piece of legislation with the express purpose of
“providing equitable and efficacious procedures for the benefit
of tribunals and litigants involved in litigation with international
aspects.” S. REP. NO. 88-1580, 88th Cong., 2d Sess. (1964),
reprinted in 1964 U.S.C.C.A.N. 3782, 3783. The goal of the
changes was to “bring[] the United States to the forefront of
nations adjusting their procedures to those of sister nations * * *
[and] invite foreign countries similarly to adjust their
procedures.” Jbid.

2 Section 1782 actually is descended from a statute originally enacted in
1855. See Jn re Letter Rogatory from the Justice Court, 523 F.2d 562,
566-569 (6th Cir. 1975) (appendix detailing the history of judicial
assistance statutes). The statute was enacted in 1948 at its current place
in the U.S. Code. Act of June 25, 1948, ch. 646, 62 Stat. 949. In 1949,
Congress amended Section 1782 in pertinent part to replace the phrase
“civil action” with “judicial proceeding.” Act of May 24, 1949, ch. 139,
§ 93, 63 Stat. 103.

4

This legislation was forwarded to Congress in 1963 by the
Commission and Advisory Committee on International Rules of
Judicial Procedure. With the proposed legislation, the Commis-
sion included a May 27, 1963, letter by President John F.
Kennedy, expressing the administration’s view that the pro-
posed legislation “would be most desirable from the standpoint
of the administration of international justice on behalf of private
litigants.” Jd. at 3794. Walter Olney III, the Director of the Ad-
ministrative Office of the U.S. Courts, wrote to the Chairman of
the Senate Judiciary Committee in 1964, noting the approval of
the Judicial Conference of the United States. Director Olney
stated: “The procedures that would be presented by this legis-
lation * * * would alleviate some of the many procedural prob-
lems private litigants now face in prosecuting litigation with
international aspects.” Jbid.

The scheme adopted in 1964 to assist private litigants in-
cluded new statutory sections as well as amendments to pre-
existing sections, all of which have the same express purpose of
assisting with “litigation with international aspects.” Jd. at
3785. For example, Congress added 28 U.S.C. § 1696, which
provides for service of process in the United States in “litigation
with international aspects” (id. at 3784) pursuant to a letter
rogatory or request “by a foreign or international tribunal,” or
“upon application of any interested person.” 28 U.S.C.
§ 1696(a). Congress also amended 28 U.S.C. § 1781 (which
had been enacted in 1948 together with Section 1782), giving
the Department of State express authority to respond to letters
rogatory or requests “by foreign and international tribunais.”
1964 U.S.C.C.A.N. at 3787.

In the same legislation Congress amended Section 1782, to
“clanif[y] and liberalize[] existing U.S. procedures for assisting
foreign and international tribunals and litigants” and “adjust[]
those procedures [for obtaining evidence in the United States]
to the requirements of foreign practice and procedure.” Jd. at
3788. The Senate Report noted specifically the increasing use
of “investigating magistrates” and “the constant growth of ad-

5

ministrative and quasi-judicial proceedings all over the world”
as reasons for replacing the prior term “judicial proceeding”
with “proceeding in a foreign or international tribunal.” Jbid.
This change was made in part to ensure judicial assistance for
French juges d’instruction, which are factfinders roughly
equivalent to the grand jury in U.S. criminal practice. Jn re
Letters Rogatory Issued by Dir. of Inspection of the Gov't of
India, 385 F.2d 1017, 1020 (2d Cir. 1967) (Friendly, J.). The
Senate Report also described a purpose of the amendments as
clarifying who (in addition to the foreign or international
tribunal) was entitled to seek discovery under Section 1782: “an
interested person, such as a person designated by or under a
foreign law, or a party to the foreign or international litigation.”
1964 U.S.C.C.A.N. at 3789.

In 1996, Congress added a single phrase to indicate that “a
proceeding in a foreign or international tnbunal” includes
“criminal investigations conducted before formal accusation.”
Pub. L. No. 104-106, Div. A, Title XII, § 1342(b), 110 Stat.
496. In its current form (as amended in 1949, 1964, and 1996),
Section 1782 reads in pertinent part (emphasis added):

(a) The [U.S.] district court * * * may order [a person] to
give his testimony or statement or to produce a document
or other thing for use in a proceeding in a foreign or
international tribunal, including criminal investigations
conducted before formal accusation. The order may be
made pursuant to a letter rogatory issued, or request made,
by a foreign or international tnbunal or upon the applica-
tion of any interested person * * *. The order may pre-
scribe the practice and procedure, which may be in whole
or part the practice and procedure of the foreign country or
the international tribunal, for taking the testimony or
statement or producing the document or other thing. To the
extent that the order does not prescribe otherwise, the
testimony or statement shall be taken, and the document or
other thing produced, in accordance with the Federal Rules
of Civil Procedure.

6

Companies and individuals have sought the assistance of
U.S. courts in obtaining discovery on the theory that they are
“interested persons” even when they are not litigants or
otherwise authorized by foreign law to seek discovery; even
when there is no “proceeding in a foreign or international tri-
bunal” taking place; and even when foreign law does not permit
the discovery of the documents or testimony sought. Splits of
authority have developed over what constitutes a “proceeding
in a foreign or international tribunal” and over whether the
documents or testimony sought must be discoverable under the
law of the sovereign country where the proceeding is taking
place. This Court granted certiorari to resolve those splits and
other questions raised by petitioner and the Acting Solicitor
General.

B. The Proceedings Below and the Ninth Circuit’s
Decision

Respondent Advanced Micro Devices, Inc., is one of
petitioner Inte] Corporation’s primary competitors in the pro-
duction and sale of computer microchips. Respondent filed a
complaint with the European Commission Directorate General-
Competition (Directorate), one of more than 100 such com-
plaints the Commission receives yearly. European Commission
Directorate-General for Competition, XXX/Jst Report on
Competition Policy 11, 53 fig. 1 (2001), available at http://
europ.eu.int/comm/competition/annual_ reports/2001/
competition_policy/eu.pdf. In much the same manner, myriad
complaints are filed yearly in the United States with the
Antitrust Division of the U.S. Department of Justice and with
the Federal Trade Commission.

To file a complaint with the European Commission, a party
like respondent need only send a letter or a facsimile; with “the
complainant’s name and address,” the “identity of the firms in
question,” “[e]vidence of the complainant’s legitimate interest
in the matter,” and a “clear description of the subject of the
complaint and the reasons for thinking that the practice infringes
[European] Community competition law.” Complaints from the

7

Public on Competition Matters, published at http://europa.eu.
int/comm/competition/citizen/citizen_complaints_en.htm]
(visited Dec. 13, 2003). A similar complaint procedure exists
in both U.S. antitrust enforcement agencies. See How to Report
a Possible Violation, published at http://www.usdoj.gov/atr/
contact/newcase.htm (visited Dec. 13, 2003); Antitrust Contact
Information, published at http://www. ftc.gov/ftc/bccontact.htm
(visited Dec. 13, 2003).

By filing the complaint, respondent initiated an investiga-
tion, in which the Directorate “may gather information on its
own and provide the complainant with an opportunity to support
its allegations.” Pet. App. 3a. “The Directorate also has the
authority to seek information directly from the alleged infringer
{of Community competition law] and may punish a failure to
provide information.” Jbid. (citing Council Regulation 17/64,
arts. 11, 14). The process — which is not an adversary proceed-
ing (ibid.) — is extremely similar in all pertinent respects to the
investigatory process following a complaint made to the U.S.
antitrust enforcement agencies. During an investigation by the
Antitrust Division or Federal Trade Commission, anybody may
comment simply by sending an e-mail to the agency. See
http://www.usdoj.gov/atr/contact.html#cases; http://www. ftc.
gov/ftc/bccontact.htm. Complainants regularly present allega-
tions of anticompetitive conduct to the U.S. agencies. Both
agencies possess authority under the Antitrust Civil Process Act,
15 U.S.C. §§ 1311-1314 (CID Statute), to issue “civil investiga-
tive demands” seeking documents or testimony, and compliance
is compelled by the criminal code, 18 U.S.C. § 1505.

The investigation by the Directorate is a preliminary in-
vestigation, which, as the Ninth Circuit itself recognized, “is not
considered an adversarial proceeding.” Pet. App. 3a (citing
AKZO Chemie BV v. Commission, 1 C.M.L.R. 231, 248 (E.C.J.
1986)). At this point, the Directorate still could simply decide
not to pursue the complaint, an exercise of prosecutorial
discretion potentially subject to limited review by the European
Court of First Instance. Pet. App. 4a (citing Stork Amsterdam

8

BV v. Commission, 5 C.M.L.R. 31, 42 (Ct. of First Instance
2000)); U.S. Br. 19 & n.7 (Oct. 6, 2003) (explaining limited
nature of judicial review of Commission decision not to pro-
ceed). If, after concluding the preliminary investigation, the
Commission were to decide to proceed by issuing a formal
statement of objections against petitioner, petitioner — and not
respondent — would have the right to a hearing before an inde-
pendent hearing officer. The hearing officer would issue a re-
port on the hearing, and thereafter the Commission’s staff would
make a recommendation. Then, based on that recommendation,
the Commission would either dismiss the complaint or issue a
decision drafted by the investigative staff finding a violation.
In this case, the matter has not progressed beyond the pre-
liminary investigation by the Directorate. But, despite the
absence of an adversary proceeding between the Commission
and petitioner, respondent — which would not be a litigant even
at a future stage — seeks discovery under Section 1782.

The Ninth Circuit interpreted Section 1782 to give mere
complainants before the Commission a right to discovery. The
court held that the Commission’s preliminary investigation
sufficed to allow Section 1782 discovery because “the investiga-
tion being conducted by its [the Commission’s] Directorate is
related to a quasi-judicial or judicial proceeding” and,
“{a]lthough preliminary, the process qualifies as a ‘proceeding
before a tribunal’ within the meaning of’ Section 1782. Pet.
App. 7a. The court also was unconcerned that the law of the
European Union does not enable complainants to access the
materials respondent sought from petitioner, holding instead
that Section 1782’s failure expressly to exclude materials not
discoverable under the law of the foreign tribunal means that
those materials are discoverable. Pet. App. 8a. The Ninth
Circuit justified its “allowance of liberal discovery” by citing
the “twin aims of Section 1782: providing efficient assistance
to participants in international litigation and encouraging
foreign countries by example to provide similar assistance to
our courts.” /bid. (citing Jn re Malev Hungarian Airlines, 964
F.2d 97, 100 (2d Cir. 1992)). The Ninth Circuit therefore

.. =".

9

ordered the district court to “consider” respondent’s discovery
request “on the merits.” /d. at 9a.

SUMMARY OF ARGUMENT

The text of Section 1782 limits the parties that may seek
judicial assistance from a U.S. district court under the section to
the tribunal itself and to “interested persons.” In this case the
Directorate expressly declined to request the documents respon-
dent seeks under Section 1782, and the Court of First Instance
certainly has not sought them — so only an “interested person”
may avail itself of the statute. Although the Ninth Circuit failed
to consider the question, respondent cannot be an “interested
person.” The only reasonable reading of the statute limits per-
sons entitled to discovery to litigants and those (principally gov-
ernmental officials) otherwise denominated by foreign law as
having the kind of “interest” that gives them discovery rights
under foreign law — and, unsurprisingly, all indications are that
the reasonable construction is just what Congress intended.
1964 U.S.C.C.A.N. at 3789. Respondent is not a litigant, and
may never be a litigant; and there is no provision of European
Union law that grants respondent the right to discovery.

Section 1782, by its text, permits judicial assistance to
parties seeking discovery only when the request is for use in a
“proceeding in a foreign or international tribunal.” A tnbunal,
in turn, is an adjudicative agency. Respondent sought discovery
under Section 1782 while the Directorate was conducting a pre-
liminary investigation — the result of which at most could be a
decision by the Commission to issue, or not to issue, a formal
statement of objections. Finally, the Commission’s ultimate
decision regarding a formal statement of objections was
reviewable by a tribunal — the European Court of First Instance.
No basis exists for interpreting the phrase “for use in a pro-
ceeding in a * * * tribunal” to encompass discovery at all stages
of investigation that may, or may not, end up before an adjudi-
cative body.

10

The Ninth Circuit also erred by holding that Section 1782
authorzes discovery in the United States even if the materials
sought would not be discoverable in the foreign tribunal.
Despite the Ninth Circuit’s statements to the contrary, this
holding impedes, rather than advances, Congress’s important —
and clearly expressed — concerns for international comity. But
the court’s error extends fu-t%«~, because respondent would not
even be entitled to discovery under U.S. law. The Ninth Circuit
erred by attributing to Congress an intent to enact a discovery
scheme that has no precedent either in domestic or in foreign
law and allows easy circumvention of limitations on discovery
that foreign sovereigns consider important.

ARGUMENT

The Ninth Circuit has adopted a reading of Section 1782
that eliminates ary symmetry of obligations between the United
States and foreign sovereigns; that does violence to the lan-
guage, structure, history, and purposes of the statute; and that
produces far-reaching results that Congress could not have in-
tended. Because the discovery that respondent seeks from peti-
tioner is not available under Section 1782, the Court should re-
verse the decision of the Ninth Circuit. The Ninth Circuit was
wrong on each of the three issues raised by the petition; reject-
ing its position on any one of those issues would dispose of this
case.

The Ninth Circuit’s interpretation of Section 1782 does
violence to the text, structure, and purposes of the statute in
three significant respects. First, by failing to limit discovery to
litigants before the foreign proceedings and a carefully circum-
scribed class of other “interested persons,” the Ninth Circuit’s
interpretation of the statute expands discovery in foreign
proceedings ad infinitum, allowing discovery by any person
who can claim an “interest” in some potential future proceeding
in the broadest possible sense of that term. Second, by treating
an investigation by the Directorate as sufficient because it is,
relates to, or leads to a “proceeding in a foreign * * * tribunal,”
the Ninth Circuit upended the statutory mandate that discovery

11

be permitted only after an adversary proceeding has been
initiated. Third, by allowing discovery that is not permitted
under EU law, the Ninth Circuit undermined the important
international comity rationale underlying Section 1782.
I. Judicial Assistance Under Section 1782 Is
Available to Litigants, to Persons Otherwise
Denominated “Interested Persons” Under

Applicable Foreign Law, and to the Foreign or
International Tribunal — But Not to Respondent

Section 1782 should be construed to limit “interested
person{s]” who may achieve discovery under the section to
litigants before a foreign tribunal — or persons (generally,
governmental officials) that foreign law otherwise permits to
obtain discovery. The Eleventh Circuit has interpreted the
phrase “interested persons” to include private /itigants and
“foreign official[s] properly designated under foreign law.” Jn
re Request for Judicial Assistance from Ministry of Legal
Affairs of Trinidad & Tobago, 848 F.2d 1151, 1155 (2d Cir.
1988). This interpretation imposes a sensible and necessary
limit on the discovery available to private parties under Section
1782. The Ninth Circuit reached the wrong decision largely
because it utterly failed to consider the question whether
respondent was a statutory “interested person.”

Failing to read such a sensible limitation into the phrase
“interested person({s]” has the perverse result of removing all
limits on the set of persons who are authorized by the section to
seek discovery of petitioner’s, and others’, confidential business
or This Court looks to statutory structure, purpose,

and history to read limitations into statutory language that
otherwise is unbounded. See Egelhoff v. Egelhoff, 532 US.
141, 147 (2001) (limiting the scope of the logically unbounded
statutory phrase “relating to” in ERISA preemption). The Court
should do so here.

Congress used precisely the same wording that is found in
Section 1782 — “upon application of any interested person” —

12

elsewhere in the 1964 legislation. ““[I]dentical words used in
different parts of the same act are intended to have the same
meaning.” Department of Revenue v. ACF Indus., Inc., 510
U.S. 332, 342 (1994) (quoting Sorenson v. Secretary of
Treasury, 475 U.S. 851, 860 (1986)). In 28 U.S.C. § 1696(a),
Congress authorized district courts to offer judicial assistance
for service of process in response to a request “by a foreign or
international tribunal or upon application of any interested
person.” The purpose of Section 1696 is to “provide for service
of documents in litigation with international aspects.” 1964
U.S.C.C.A.N. at 3785. If respondent, a non-party, is entitled to
judicial assistance under Section 1782, non-parties likewise are
entitled to judicial assistance making service of process under
Section 1696. But that result makes no sense.

Rather, the phrase “any interested person” should be read
so that both uses are defensible. Restricting “any interested
person” to parties that might have reason to want to effect
service — e.g., litigants — produces just such defensible results.
And the reference in the legislative history to a “person
designated by foreign law” (1964 U.S.C.C.A.N. at 3789; see
Trinidad & Tobago, 848 F.2d at 1155 (“a foreign official
properly designated under foreign law may fall within the
definition of ‘interested person’”)) might readily denote an
official designated to assist in service and discovery matters in
foreign litigation. Compare 28 U.S.C. § 1608(a)(4) (U.S.
Secretary of State designated by U.S. law to assist in service of
process on foreign sovereigns).

All indications are that when enacting Section 1782
Congress intended to limit “any interested person” to private
litigants, or to foreign officials properly designated by foreign
law as having the kinds of responsibilities that entitle them to
discovery as non-litigants. According to the legislative history
of Section 1782, an “interested person” is a “person designated
by foreign law, or a party to the foreign or international
litigation.” 1964 U.S.C.C.A.N. at 3789. See Trinidad &
Tobago, 848 F.2d at1 154-1155 (quoting the legislative history);

13

see also Jn re Lancaster Factoring Co., 90 F.3d 38, 42 (2d Cir.
1996) (“The legislative history to § 1782 makes plain that
‘interested person’ includes ‘a party to the foreign * * *
litigation.””) (quoting 1964 U.S.C.C.A.N. at 3789). President
Kennedy and Director Olney (of the Administrative Office of
the U.S. Courts) spoke only of “private litigants,” and the legis-
lative history otherwise discussed “litigation with international
aspects.” See p. 4, supra. Notably absent from the legislative
history is any discussion of parties, like respondent, that are not
litigants and have no right under foreign law to conduct
discovery in the proceeding for which the U.S. discovery sup-
posedly is sought.

The Acting Solicitor General seems to think discovery
should be denied in this case (see U.S. Br. 18 (Oct. 6, 2003)),
yet he urges that the matter is completely discretionary with dis-
trict judges around the country and that this Court should hold
that mere complainants in European Commission proceedings
are “interested persons” (id. at 16, 18). His sole reasoning in
support of that argument, however, is the ipse dixit that “the
words ‘interested person’ are broad” coupled with the correct
observation that Congress’s selection of that phrase —
posed to “litigant” — was “intentional.” Jd. at 16. But no one
contends that “interested persons” are only litigants — rather, the
dispute is whether the class of “interested persons” who are not
litigants is a very narrow class consistent with the legislative
history, the purposes of the statute, and the use of that phrase in
other provisions of the 1964 legislation; or is instead expansive
so that any old “interest” in the non-legal sense of that word will
suffice. Surely even the Acting Solicitor General would recog-
nize some limits on the “interest[s]” that will trigger Sec-
tion 1782; a scholar’s or corporate gadfly’s or journalist’s literal
“interest” in the European proceedings could not possibly entitle
that person to invoke Section 1782. But the Acting Solicitor
General offers no limiting principle that would draw the line
beyond litigants but short of the entire universe of persons
willing to say, “I’m interested.” Cf. Lujan v. Defenders of Wild-
life, 504 U.S. 555, 567-568 n.3 (1992) (“It is unclear to us what

14

constitutes a ‘genuine’ interest; how it differs from a ‘non-
genuine’ interest (which nonetheless prompted a plaintiff to file
suit); and why such an interest in animals should be different
from such an interest in anything else that is the subject of a
lawsuit.”). Petitioner and the Chamber, by contrast, offer
defensible lines well grounded in both statutory structure and
legislative history.

Interpreting the statute to limit the persons entitled to take
advantage of Section 1782 makes perfect sense in light of the
limitations on discovery available under U.S. law. Under the
Federal Rules of Civil Procedure, discovery is available only if
a party first files a complaint adequate to survive a motion to
dismiss. See Fed. R. Civ. P. 3, 12(b)(6). A defendant’s ability
to seek dismissal under Rule 12(b)(6) — and the ability to seek
sanctions under Rule 11 — ensure that the discovery process is
not employed frivolously. Also, the tort of abuse of process is
available to U.S. defendants who can plead and prove that their
adversary sought to gain from the process, but not from the end,
of the litigation. See, e.g., Warren v. Wasserman, Comden &
Casselman, 271 Cal. Rptr. 579, 581 (Cal. App. 1990)
(describing abuse of process under California law). And the
federal rules permit strict limitations on access to discovery by
non-parties, in the form of protective orders under Rule 26(c).’

Finally, the statutory purposes fully support limiting use of
Section 1782 to litigants and a narrow class of other “interested

* Stringent protections also exist for companies being investigated by
U.S. administrative agencies - including the Antitrust Division and
Federal Trade Commission. The CID statute provides: “[N]o
documentary material, answers to interrogatories, or transcripts of oral
testimony, or copies thereof, so produced shall be available for
examination, without the consent of the person who produced such
material.” 15 U.S.C. § 1313(c)(3). And the Freedom of Information Act
contains express exemptions for “trade secrets and commercial or
financial information obtained from a person and privileged or
confidential” and certain “records or information compiled for law
enforcement purposes.” 5 U.S.C. § 552(b)(4), (b)(7).

15

persons” with legally cognizable interests defined by foreign
law. As the Ninth Circuit itself described “the twin aims of
Section 1782,” they were “providing efficient assistance to
participants in international litigation and encouraging foreign
countries by example to provide similar assistance to our
courts.” Pet. App. 8a (emphasis added) (citing Malev, 964 F.2d
at 100). The obvious conclusion to draw from the fact that these
are the statutory purposes is that only litigants and a small class
of other interested persons closely linked to court proceedings
are the intended beneficiaries of the statute, yet the Ninth
Circuit without analysis announced the polar opposite
conclusion that these purposes support “allowance of liberal
discovery,” Pet. App. 8a, apparently meaning that all statutory
terms are to be construed as expansively as possible. This mode
of statutory interpretation will not do.* Rather, as this Court’s
statutory interpretation jurisprudence dictates, “interested
persons” must be construed no more expansively than the text,
structure, purposes, and history of Section 1782 will support.
As shown above, all of those indicia of legislative intent support
a narrow construction that does not include mere complainants
in European Commission investigations.

Il. Section 1782 Permits Judicial Assistance in Con-
nection With A Proceeding in a Foreign or Inter-
national Tribunal — And Not as Part of a Mere
Investigation by Law-Enforcement Authorities

“The principal requirement imposed by § 1782 is that the
requested discovery be for use in ‘a proceeding.” Jn re Lan-
caster Factoring, 90 F.3d at 41. This Court may reverse the

* — “*Njo legislation pursues its purposes at all costs. Deciding what
competing values will or will not be sacrificed to the achievement of a
particular objective is the very essence of legislative choice — and it
frustrates rather than effectuates legislative intent simplistically to
assume that whatever furthers the statute's primary objective must be the
law.’"” PBGC v. LTV Corp., 496 U.S. 633, 646-647 (1990) (quoting
Rodriguez v. United States, 480 U.S. 522, 525-526 (1987) (per curiam)).

16

decision below because the investigation by the Directorate was
not a proceeding before a tribunal, and not every proceeding
“related to” such a proceeding (Pet. App. 7a) can trigger the
statute. A “tribunal” is a proceeding “in which an adjudicating
function is being exercised.” Lancaster Factoring, 90 F.3d at
41 (holding that a then-pending foreign bankruptcy proceeding
met the statutory requirement). “[N]ot every conceivable fact-
finding or adjudicative body is covered, even when the body
operates under the imprimatur of a foreign government.”
Republic of Kazakhstan v. Biedermann Int'l, 168 F.3d 880, 882
(Sth Cir. 1999). The range of applications for Section 1782 is
limited; as Judge Friendly observed, the section does not “go to
the full extent of authorizing a district court to execute letters
rogatory whenever requested by a foreign country or party
there.” Gov't of India, 385 F.2d at 1020.

The Ninth Circuit held that the preliminary investigation by
the Directorate was sufficient to tigger Section 1782, offering
a justification based on two faulty conclusions. First, by
rejecting petitioner’s argument that the Commission “is not a
tribunal” (Pet. App. 6a), the Ninth Circuit seems to have con-
cluded that at some point the Commission will become a “tri-
bunal,” presumably because the court saw the final decision by
the Commission after a second-phase investigation as a quasi-
judicial proceeding. Second, the Ninth Circuit concluded that
it was adequate that the preliminary investigation in which re-
spondent sought the discovery was “related to a quasi-judicial
or judicial proceeding.” Pet. App. 7a. Both conclusions are
wrong.

A. The proceedings leading to an ultimate Commission
decision are not quasi-judicial. In urging this Court to grant
certiorari in this case, the European Commission stated that
“{t]he Ninth Circuit’s holding fundamentally misconstrues the
nature of the European Commission. The Commission func-
tions primarily as a law enforcement agency in the antitrust field
* * * The Commission * * * never adjudicates disputes be-
tween parties.” Brief of the Commission of the European Com-

17

munities as Amicus Curiae in Support of Petitioner 4-5
(Nov. 15, 2002). The district court reached the same conclu-
sion, citing the European Commission’s Eleventh Report on
Competition Policy (1981): “The Commission{’s] * * * ‘pro-
cedure[] relating to restrictive practices and abuse of dominant
position [the substance of the complaint underlying the Com-
mission’s investigation of petitioner] is administrative and not
judicial; it must not be turned into a trial.’” Pet. App. 14a.

This Court should defer to the Commission’s understand-
ing of its own procedures both as a matter of comity and be-
cause the Commission is far better placed than any other source
to interpret its role. Compare Kolovrat v. Oregon, 366 U.S.
187, 194-195 (1961) (according weight to interpretations by the
government of the Kingdom of Serbia and the U.S. State
Department of a treaty between the countries); S&S Machinery
Co. v. Masinexportimport, 706 F.2d 411, 415 (2d Cir.)
(“[S]tatements of foreign officials — regardless of their political
or ideological orientation — have been accorded great weight in
determining whether an entity is entitled to claim the protection
of the FSIA.”), cert. denied, 464 U.S. 850 (1983). Such defer-
ence is accorded to U.S. agencies’ interpretations of their own
proceedings. See Jnternational Tel. & Tel. Corp. v. Internation-
al Bhd. of Elec. Workers, 419 U.S. 428, 441 (1975) (“While an
agency’s interpretation of the [Administrative Procedure] Act
may not be entitled to the same weight as the agency’s inter-
pretation of its own substantive mandate, its characterization of
its own proceeding is entitled to weight, and that characteriza-
tion may in turn have relevance in determining the applicability
of the Act.’’) (citation omitted).

This Court can reverse the Ninth Circuit’s misinterpreta-
tion of the “proceeding in a foreign * * * tribunal” requirement
on the basis of the Commission’s interpretation of its own law
and procedures. But an analysis of the investigation based on
which respondent sought discovery also leads to the conclusion
that neither the Directorate’s preliminary investigation nor even

18

its final decision is a “proceeding in a * * * tribunal” within the
meaning of 28 U.S.C. § 1782(a).

The preliminary investigation by the Directorate is func-
tionally indistinguishable from a preliminary investigation by
the Antitrust Division or the Federal Trade Commission.
According to European Council Regulation 17/62, art. 14(1):

In carrying out the duties assigned to it * * *, the
Commission may undertake all necessary investigations
* * * To this end the officials authorized by the

Commission are empowered:
(a) to examine the books and other business records;

(b) to take copies of or extracts from the books and
business records;

(c) to ask for oral explanations on the spot;

(d) to enter the premises; land and means of transport
of undertakings.

Also, the Directorate “may obtain all necessary information
from * * * undertakings and associations of undertakings. * * *
The owners of the undertakings or their representatives * * *
shall supply the information requested.” Council Regulation
17/62, art. 11(1), (4).

The Directorate’s investigative powers compare closely
with the powers exercised by the Antitrust Division under the
CID Statute (15 U.S.C. § 1312(a)):

Whenever the * * * Antitrust Division * * * has reason to
believe that any person * * * may have any information,
relevant to a civil antitrust investigation * * *, [it] may
* * * issue in writing * * * a civil investigative demand
requiring such person to produce such documentary
material for inspection and copying * * *, to answer in
writing written interrogatories, to give oral testimony * * *,
or to furnish any combination of such material, answers, or
testimony.

19

Other comparable powers under U.S. law include grand jury
investigations (Fed. R. Crim. P. 6) and search warrants executed
by the FBI (Fed. R. Crim. P. 41).

Once the investigation moves to a second phase — which
the investigation that is the subject of this case has not done —
it is true that the Commission may determine that the party
under investigation has violated the law and may take corrective
measures. But that fact alone does not make the Commission a
“tribunal.” Rather, because the Commission proceeds in the
second phase without an adversary process — a private com-
plainant such as respondent Advanced Micro Devices has no
right to do anything more than observe the non-evidentiary
hearing the Commission conducts before making its decision —
any conclusion by the Ninth Circuit that the Commission is a
“tribunal” is incorrect, even if the investigation reaches the
second phase.”

Also, again, the interpretation of the key phrase “proceed-
ing in a foreign or international tribunal” in Section 1782 must
be harmonized with the interpretation of the identical phrase in
Section 1696. ACF Indus., 510 U.S. at 342. Because Section
1696 allows assistance for service-of-process purposes, a “pro-
ceeding in a foreign * * * tribunal” in that section can only be
a proceeding in which service of process might occur —i.e., not
a mere administrative investigation. It is anomalous to interpret
“proceeding in a foreign * * * tribunal” in Section 1782 (as the
Ninth Circuit did) to encompass an administrative investigation
in which judicial assistance effecting service under Section 1696
would be unnecessary. :

* See Fonseca v. Blumenthal, 620 F.2d 322, 324 (2d Cir. 1980) (“Unlike
the [French] juges d’ instruction, the Superintendent * * * is charged to
act in the government’s interest to enforce the law * * *. He has
extraordinary powers to order and conduct far-reaching investigations.
Upon completion of his investigation, he is empowered to determine
whether violation of the law has occurred. Although the subject of the
investigation may be represented by counsel, the government’s sole
representative is the Superintendent itself.”).

20

The call for harmonization is accentuated in this case be-
cause Congress enacted Section 1696 as part of the same legis-
lation in which it amended Section 1782. Had Congress meant
for the change from “judicial proceeding” to “proceeding in a
foreign * * * tribunal” to render Section 1782 applicable to
administrative investigations or prosecutions, it would have pre-
served the prior statutory term “judicial proceeding” (or some
comparable phrasing) in Section 1696. But the new phrase
gives effect to both sections if “proceeding[s] in a foreign tribu-
nal” encompasses the range of adjudicative functions in which
service of process may be needed, but not other types of legal
procedures. Under that manifestly reasonable interpretation, a
“proceeding” in a “tribunal” does not include either the
preliminary investigation at issue in this case, or any subsequent
(and currently speculative) second-phase investigation.

B. The Ninth Circuit’s analysis is unclear whether it is the
Commission decision to issue, or not to issue, a formal com-
plaint that supposedly constitutes the “proceeding in a tribunal,”
or whether it is the possible later review by the Court of First
Instance. But, in either case, the Ninth Circuit further erred by
creating a “related to” test (Pet. App. 7a) for deciding whether
the investigation by the Directorate might qualify as a pro-
ceeding under Section 1782.

The Ninth Circuit’s exception to the clear statutory limita-
tions on the scope of permissible discovery cannot be justified.
To begin with, this Court has recognized the breadth of the
concept “relatedness.” In an Airline Deregulation Act preemp-
tion decision, Morales v. Trans World Airlines, Inc., 504 U.S.
374, 384 (1992), the Court held that the phrase “relating to” in
former 49 U.S.C. § 1305(a)(1) (now 49 U.S.C. § 41713(b)(1))
was intended to preempt any state law with “‘a connection with,
or reference to”” the subject of the preemption clause. (quoting
Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 97 (1983)). And
relatedness tests also permit courts to aggregate overall effects
of activities that individually may have only de minimis effect.
See United States v. Lopez, 514 U.S. 549, 558 (1995).

21

In creating a “related to” test, the Ninth Circuit apparently
believed that Section 1782 could be employed in any situation
with any connection with a proceeding in a tribunal, even if de
minimis in nature — a concept that readily might reach activities
such as extra-judicial settlement negotiations or mediation. No
basis exists to extend the plain language of Section 1782 this
broadly without any indication in the text of the statute or
elsewhere that Congress had that intent.

And the Ninth Circuit’s attempted justification in no way
explains its unwarranted extension of the plain language of
Section 1782. The court made much of the elimination of the
word “pending” from the text of Section 1782, as if that change
undermined even the clear interpretation of the language that
remains. Pet. App. 6a; accord U.S. Br. 16-17 & n.5 (Oct. 6,
2003). But that minor — and perhaps inadvertent — change in the
text of Section 1782 (see Jn re International Judicial Assistance
for the Federative Republic of Brazil Gen. Univ. Trading Corp.,
936 F.2d 702, 705 (2d Cir. 1991)) cannot bear the weight that
the Ninth Circuit and the Acting Solicitor General have placed
on it. Nothing in the legislative history indicates that Congress
ever intended that the existence of any and all possible future
“proceedings in a foreign * * * tribunal” would justify discovery
of U.S. companies’ documents and testimony. “If the omission
of ‘pending’ was intended to mean ‘eventually occurring,’ we
would expect to see at least some hint of that thought in the
authoritative reports issued by the members of the Senate and
House committees.” Jd. at 706.°

* The Chamber also agrees with the observation at page 9 of the
Commission’s own amicus brief filed December 23, 2003, concerning
possible future review of a non-prosecution decision by the Court of First
Instance: “[I]}f that feature were sufficient for a Section 1782 petitioner
to claim that discovery is ‘for use in a foreign ... tribunal,’ it would open
the statute to discovery requests in connection with every administrative
agency action, regulation, investigation, license or permit anywhere in
the world, so long as the action is ultimately subject to judicial review.
Congress cannot have intended such an extreme result.”

22

The Ninth Circuit’s view of the elimination of the word
“pending” removes any temporal limitation on the discovery
allowed under the statute.’ If it is not true after the amendment
that a proceeding must either be pending or be of the precise
type (pre-indictment criminal investigation) now specifically
identified in the statute, then a much more reasonable interpreta-
tion of the section has been adopted by the Second Circuit. That
court has held that a proceeding justifying discovery under
Section 1782 must be “imminent — very likely to occur and very
soon to occur in order to satisfy the statutory requirements.” Jn
re Euromepa, 154 F.3d 24, 29 (2d Cir. 1998) (internal quotation
omitted). In Jn re Ishihara Chemical Co., 251 F.3d 120 (2d Cir.
2001), although the original proceeding in which the discovery
was sought had concluded, the party seeking discovery argued
that the information would “be used in a new [patent] invalidity
proceeding to be instituted in Japan.” Jd. at 126. The Second
Circuit rejected that argument. The request for discovery was
based on “speculation not only as to the commencement of such
a proceeding, but also as to its need for discovery in such a
proceeding.” /d. at 127 n.4. So too here. Under the Ninth Cir-
cuit’s interpretation of the statute, not only could respondent
seek discovery without being a litigant now or in the near future,
but also respondent would never have to demonstrate that it ever
will be a litigant.*

-

Unwilling to carry his analysis to its logical conclusion, the Acting
Solicitor General rejects an “imminence” requirement but insists that
there is some limit here because the Commission investigation at issue
is “integrally linked to a later ‘proceeding in a foreign or international
tribunal.’” U.S. Br. 17 (Oct. 6, 2003) (emphasis added). But, of course,
the “integrally linked” formulation has no more textual basis than an
“imminence” requirement, and suffers from indeterminacy: it is just as
easy to argue that a Commission investigation is not integrally linked to
a speculative future adjudication as to argue that it is linked to a future
adjudicative proceeding.

* Even the Eleventh Circuit in Trinidad & Tobago - while holding that
the proceeding in a foreign tribunal need not necessarily be pending —

23

In 1996, Congress added to the section the phrase
“including criminal investigations conducted before formal
accusation.” Pub. L. No. 104-106, Div. A, Title XIII (emphasis
added). Congress expanded the judicial assistance permissible
in criminal cases under Section 1782 beyond the scope that was
contemplated previously by the section. Congress’s intent was
very clear. The amended Section 1782 now permits discovery
during the foreign equivalent of the grand jury process — a
statutory change that further harmonizes Section 1782 with U.S.
procedures. In the U.S. system, substantial pre-indictment
investigation occurs — but discovery in the civil system is not
allowed until after the complaint is filed. The need to amend
. Section 1782 specifically to allow pre-indictment judicial

assistance demonstrates that pre-complaint judicial assistance
generally is not contemplated by the Section.

Finally, this Court should read Section 1782 to be con-
sistent with related provisions in the U.S. Code. United Sav.
Ass'n of Texas v. Timbers of Inwood Forest Associates, Ltd.,
484 U.S. 365, 371 (1988) (“A provision that may seem ambig-
uous in isolation is often clarified by the remainder of the statu-
tory scheme * * * because only one of the permissible meanings
produces a substantive effect that is compatible with the rest of
the law.”). Another statutory section, 15 U.S.C. § 6203(a),
permits, “[o]n the application of the Attorney General,” pre-
complaint discovery in the U.S. as a part of foreign antitrust
investigations. Notably, Section 6203 does not permit foreign
antitrust investigative authorities to seek discovery under Sec-
tion 1782. Under the Ninth Circuit’s rule, respondent may use
Section 1782 to conduct discovery before the initiation of a
“proceeding,” but a foreign antitrust authority must apply for

limited its holding to requests from “official[s] properly designated under
foreign law.” 848 F.2d at 1155. “Therefore, the word ‘litigant’ in the
legislative history does not restrict a request for assistance from a foreign
official to ‘pending’ proceedings” (emphasis added) — but “a private
individual may need to be a litigant in order to be an ‘interested person.’”
Ibid.

24

such authority through the Attorney General. There is no basis
in law or policy for this supposed distinction.’

A similar analysis led the Fifth Circuit to hold that foreign
private commercial arbitration was not a “proceeding in a * * *
tribunal” for purposes of Section 1782. See Republic of
Kazakhstan, 168 F.3d at 882-883. In Republic of Kazakhstan,
the court compared to Section 1782 the judicial assistance
available in domestic private commercial arbitration, noting that
“domestically constituted arbitration panels, but not any
‘interested party,’ can invoke federal court jurisdiction to
compel discovery.” Jd. at 883. “It is not likely that Congress
would have chosen to authorize federal courts to assure broader
discovery in aid of foreign private arbitration than is afforded in
its domestic dispute-resolution counterpart.” Jbid. It similarly
is unlikely that Congress would implement careful procedures
(under Section 6203) under which assistance to the Directorate
might be permitted at this pre-complaint stage of the
proceedings, but leave district courts unfettered discretion to
grant private parties access to discovery (under Section 1782).

Ill. Section 1782 Does Not Authorize Circumvention
of Foreign Tribunals’ Limitations on Discovery

This Court should adopt the position of the First and
Eleventh Circuits requiring that “the information sought in the
United States would be discoverable under foreign law.” Jn re

* Section 6203 was enacted as part of the International Antitrust
Enforcement Assistance Act of 1994, Pub. L. 103-488. The Senate
Report accompanying the legislation cites testimony from a range of
corporate interests, including amicus curiae Chamber, which supported
the legislation and expressed concerns about protecting sensitive
information from improper disclosure. S. REP. NO. 103-388, 103d Cong.,
2d Sess., at 5 (1994). It strains credulity to believe that Congress took
pains to protect the privacy of companies subject to investigation where
international antitrust cooperation was concerned, but left untouched
Section 1782, which under the Ninth Circuit’s interpretation allows
unchecked discovery by private parties.

25

Application of Asta Medica, S.A., 981 F.2d 1, 2, 7 (1st Cir.
1992); see Trinidad and Tobago, 848 F.2d at 1156."° This
interpretation gives effect to Congress’s expressed intent to
“bring[{] the United States to the forefront of nations adjusting
their procedures to those of sister nations” — with the goal of
“invit{ing] foreign countries similarly to adjust their
procedures.” 1964 U.S.C.C.A.N. at 3783. In the related context
of the Hague Evidence Convention, this Court expressed
confidence that other sovereigns’ courts would respect U.S.
discovery rules. See Société Nationale Industrielle Aérospatiale
v. U.S. District Court, 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, and
we are satisfied that foreign tribunals will recognize that the
final decision on the evidence to be used in litigation conducted
in American courts must be made by those courts.”). In similar
regard, Section 1782 should be interpreted to require U.S. courts
to have respect for other jurisdictions’ discovery rules.

But there is more. Respondent would not be entitled to the
information sought in this case under U.S. discovery rules.
Except in rare circumstances not implicated here, there is no
discovery under the Federal Rules of Civil Procedure without
first filing a civil action. See Jn re Application of National
Broadcasting Co., No. M-77 (RWS), 1998 WL 19994, at *7

'© The Ninth Circuit “[{found] nothing in the plain language * * * of
Section 1782 * * * to require a threshold showing on the party seeking
discovery that what is sought be discoverable in the foreign proceeding.”
But the judicial assistance permitted by Section 1782 is for discovery of
documents or testimony “for use in a proceeding in a foreign or
international tribunal.” (emphasis added). It is difficult to imagine how
materials not discoverable in the foreign proceeding could be “for use in”
that proceeding. This understanding also is informed by Congress's
choice of the phrase “in connection with a proceeding in a foreign or
international tribunal” (emphasis added) in Section 1696. Had Congress
employed that broader phrase in Section 1782 as well as in Section 1696,
it might have justified the Ninth Circuit’s rule, but Congress did not do
so.

26

(S.D.N.Y. Jan. 21, 1998) (noting that discovery under the
Federal Rules is limited to parties to an action (per Rule
26(b)(1)) or — in limited circumstances — to a person who
desires to “perpetuate testimony” and who “expects to be a
party in such an action” (per Rule 27(a)). Respondent has done
nothing more than file a complaint with an antitrust enforcement
agency. If the Ninth Circuit’s interpretation of Section 1782
were correct, Congress would have enacted a discovery regime
that is not based either in the laws of the foreign sovereign
where the proceeding justifying the discovery is taking place, or
in the laws of the United States. Congress’s intent, expressed in
the legislative history and uniformly interpreted by the courts,
was to encourage foreign courts to have reciprocal respect for
U.S. litigation procedures. 1964 U.S.C.C.A.N. at 3783; see Pet.
App. 8a. No reason exists for Congress to enact a scheme
permitting judicial “assistance” to a degree that even the liberal
rules of discovery in the U.S. (see Aérospatiale, 482 U.S. at
542) could not possibly justify.

And the statute that Congress enacted must not be
broadened based on some misguided notions of comity. As the
European Commission explained in its certiorari-stage amicus
brief to this Court, the Ninth Circuit’s interpretation of Section
1782, far from “providing efficient assistance to participants in
international litigation” (Pet. App. 8a (citing Malev, 964 F.2d at
100)), actually will undermine foreign antitrust enforcement
efforts. Like the Antitrust Division, the EU Competition
Commission has adopted a corporate leniency policy, whereby
it encourages members of cartels subject to that agency’s
jurisdiction voluntarily to expose the cartel. EC Br. 6 (Nov. 12,
2002). Compare Corporate Leniency Policy, 4 Trade Reg. Rep.
(CCH) 4 13,113, at 20,649-21, 20,649-22 (Aug. 10, 2003)
(Antitrust Division Corporate Leniency Policy). And, like the
U.S. policy, the Commission’s leniency program has been
highly successful. On December 10, the Competition
Commission levied €70 million in fines against members of a
cartel that was exposed under the amnesty policy. EU Jmposes
Almost €70 Million in Fines for Organic Peroxide Cartel Over

27

29 Years, Vol. 85 ISSN No. 2135 (Dec. 12, 2003). The Ninth
Circuit’s rule “could undermine the EC’s Leniency Program by
destroying the confidentiality of submissions to the Commission
and thereby deterring companies from coming forward in the
first place with vital information about illegal cartel activity.”
Deputy Assistant Attorney General Makan Delrahim, Depart-
ment of Justice Perspectives on International Antitrust Enforce-
ment: Recent Legal Developments and Policy Implications 13-
14 (Nov. 18, 2003), available at http://www.usdoj.gov/atr/
public/speeches/201509.pdf (Delrahim Remarks).

As the First Circuit correctly predicted in Jn re Application
of Asta Medica, S.A., 981 F.2d at 6 “foreign countries may be
offended by the use of United States procedure to circumvent
their own procedures and laws.”"’ Indeed, at page 13 of its
merits-stage amicus brief filed December 23, 2003, the
Commission “object[ed] to the potential subversion of limits
that the European Union has imposed * * * on access by an
antitrust complainant to the information that the Commission
gathers in its investigation.”

In Empagran, the court of appeals reached a comparable
result — also from a misguided hyper-extension of policies

'! The Acting Solicitor General tepidly responds that, “[e]ven when
the requesting entity is a private party, the unavailability of discovery
under foreign law does not necessarily imply that foreign tribunals would
take offense at the application of Section 1782.” U.S. Br. 11 (Oct. 6,
2003) (emphasis added). But it is not plausible that a Congress palpably
concerned with international comity left to the case-by-case discretion of
hundreds of district judges the decision to do something that probably
would — but “does not necessarily” — offend a foreign court. It is a par-
ticularly strained interpretation of the will of Congress to conclude simul-
taneously both that private non-litigants before a non-tribunal can invoke
Section 1782, and that they are not limited to discovering that which
would be discoverable under foreign law. The Acting Solicitor General
notably does not believe that such discovery really should be authorized
(id. at 18) but implausibly attributes to Congress the intention to leave
these delicate questions to the discretion of district courts.

28

underlying a statutory scheme. In Empagran, the D.C. Circuit
relied primarily on a deterrence rationale as justification for
permitting worldwide plaintiff classes under the Foreign Trade
Antitrust Improvements Act, 15 U.S.C. § 6a, including plaintiffs
whose injuries occurred in transactions having no nexus to the
United States. In a brief urging rehearing, the Solicitor General
and the Antitrust Division argued that the increase in potential
liability threatened the opposite effect from deterrence. Because
companies that break from and expose a cartel remain civilly
liable, increasing civil liability has the perverse effect of
cementing cartels by making it more costly for a cartel member
to break from the cartel under the Justice Department amnesty

policy.

Of course, disincentives also arise, threatening the Anti-
trust Division’s leniency policy, if foreign countries adopt poli-
cies that somehow make it more expensive for members of
cartels with impacts on U.S. commerce to take advantage of the
leniency policy. The comity rationale that the Ninth Circuit
blithely cited in support of “liberal discovery” rules (Pet. App.
8a) ignores the equal importance of mutual respect for
sovereigns’ decisions how to enforce, and how not to enforce,
their laws. See Jn re Application for an Order for Judicial
Assistance in a Foreign Proceeding, 147 F.R.D. 223, 225 (C.D.
Cal. 1993) (“The intent behind [Section 1782] was to * * *
maintain respect for foreign countries’ sovereign jurisdiction.”),
overruled by Advanced Micro Devices, Inc. v. Intel Corp., 292
F.3d 664 (9th Cir. 2002) (see Pet. App. 9a n.4). The Ninth
Circuit’s rule risks encouraging other countries to adopt pro-
cedures that undermine the judicial processes of the United
States. See Asta Medica, 981 F.2d at 7 (“[T]he broader goal of
the statute — stimulating cooperation in international and foreign
litigation — would be defeated since foreign jurisdictions would
be reluctant to enact policies similar to Section 1782.”). That
result would be inimical to Congress’s intent in enacting Section
1782, which was to “bring[] the United States to the forefront of
nations adjusting their procedures to those of sister nations.”
1964 U.S.C.C.A.N. at 3783.

ata

29

Also like the D.C, Circuit in Empagran, a case that raised
international concern by imposing U.S. antitrust laws and
policies on foreign nations (see Delrahim Remarks, supra, at 9-
10), the Ninth Circuit has made the uniquely liberal U.S. discov-
ery system the choice option for litigants in foreign countries.
Such a race-to-the-bottom approach will inevitably have the
effect of encouraging global forum shopping and making the
most liberal legal system the worldwide standard. Congress
enacted both the FTAIA and Section 1782 to enhance interna-
tional comity. The effect that these decisions threaten — making
the United States the de facto courtroom to the world — was a
result that Congress never intended.

CONCLUSION
The judgment of the court of appeals should be reversed.
Respectfully submitted.

ROBIN S. CONRAD Roy T. ENGLERT, JR.
National Chamber Counsel of Record
Litigation Center, Inc. MAX HUFFMAN
1615 H Street, N.W. Robbins, Russell, Englert,
Washington, D.C. 20062 Orseck & Untereiner LLP
(202) 463-5337 1801 K Street, N.W.

Suite 41]

Washington, D.C. 20006
(202) 775-4500

DECEMBER 2003

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0610%3A17. Public record. Not legal advice.