Leniency, Comity, Commission Proceedings and US Discovery (Rule 26 of Federal Rules of Procedure)
What happened was this. In 2002, attorneys representing Flexsys N.V. met with officials of the European Commission. Flexsys N.V. disclosed the existence of anti-competitive practices in the rubber chemicals industry and requested immunity from fines for Flexsys N.V. pursuant to the Commission’s leniency program. The Commission then investigated the matter and ultimately adopted a decision finding that there was indeed a cartel (see also Commission's press release) and containing highly detailed findings of fact based on specific evidence, including evidence that was submitted by Flexsys N.V. Then in 2006 Korea Kumho Petrochemical Co., Ltd. filed a complaint against defendant Flexsys America L.P., its affiliate Flexsys N.V., and others, alleging that defendants engaged in unlawful conduct to exclude Kumho from the U.S. rubber chemicals market. Kumho then served Flexsys, but not Flexsys N.V., with requests under Rule 26 of the Federal Rules of Procedure for documents related to investigations of suspected antitrust violations in the rubber chemicals industry that were conducted by the governments of the United States, Canada, and the European Union. Flexsys objected.
The US District Court for Northern California handed down an order denying Kumho's motion to compel discovery.
In essence, the District Court had regard to international comity and relied on Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004). It applied those general principles to the particular facts of the case in order to justify its refusal to order discovery.
See also the European Commission's Directrate general for Competition submission to the Antitrust Modernization Commission on US discovery and its leniency program.
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