April 27, 2018
Under the Federal Rules of Civil Procedure, there are no geographical limitations on discovery requests.
A U.S. court could theoretically order the production of documents held anywhere in the world, so long as those documents pertain to a “nonprivileged matter that is relevant.”1 These broad discovery procedures create tension between the various foreign antitrust enforcement agencies and the U.S. federal courts, particularly with respect to documents submitted to foreign enforcement authorities as part of their confidential investigations.2 In order to incentivize parties to self-disclose information through amnesty programs and more generally to cooperate with investigations, most, if not all, enforcement authorities take the position that confidential submissions made during their antitrust investigations cannot be used for any other purpose other than the investigation itself. U.S. regulators that have received documents from their counterparts in foreign jurisdictions, as well as multinational defendants embroiled in antitrust litigation and investigations in multiple jurisdictions, have resisted requests to produce these documents in civil litigation, citing principles of international comity – the concept of judicial respect for the sovereignty of foreign nations3 – to argue that courts should curtail broad U.S. discovery where it would intrude on the sovereignty of other nations.4
To assess whether international comity should limit discovery in the antitrust context, U.S. federal courts have adopted a five-factor test that considers: (i) the documents’ importance to the litigation; (ii) the request’s specificity; (iii) whether the information originated in the United States; (iv) the availability of alternative means of securing the information; and (v) the extent to which noncompliance with the request would undermine important interests of the United States, or compliance with the request would undermine important interests of the state where the information is located.5
The modern trend is for U.S. courts to decline to order production in civil discovery of confidential submissions to foreign competition enforcement authorities on grounds of comity.6 However, a recent decision in the U.S. District Court in the Northern District of California took a different approach and ordered the production of confidential submissions made to the Korean Fair Trade Commission (KFTC) and the European Commission (EC). There are substantial reasons for distinguishing this result from several prior cases addressing discovery of these kinds of confidential submissions, but this case is a reminder that firms contemplating the submission of such materials to foreign enforcers can have no firm assurance that they will be protected from civil discovery in the United States.
In FTC v. Qualcomm, Qualcomm faced multiple investigations across a number of jurisdictions, including by the United States Federal Trade Commission (FTC), for alleged monopolistic behavior in the sale of semiconductor devices used in mobile phones and the licensing of related technology.7 Qualcomm sought from the FTC certain documents that foreign competition enforcement authorities had shared with the FTC in connection with their related investigations of Qualcomm. These documents had been provided to the foreign enforcement agencies by various firms, including customers, competitors and licensees of Qualcomm.8 The FTC argued that the documents should not be produced to Qualcomm because of international comity concerns.9 The EC and the KFTC filed letters, siding with the FTC and objecting to the discovery based on the confidentiality interests of the third parties that had provided information in their investigations and the agencies’ continuing interests in protecting the integrity of their investigatory process by ensuring confidentiality.10
The court, however, did not accept the FTC’s international comity argument and ordered the FTC to produce the documents.11 Skeptical that international comity applied at all, the court’s decision focused on the FTC’s physical possession of the documents in the United States.12 Further, the court held that even if international comity were at play, Qualcomm would still be entitled to the documents under the five-factor test.13 Focusing on the last factor, the court discounted the foreign enforcers’ confidentiality interests, because the enforcers’ letters did not state how disclosure would directly conflict with specific laws in their jurisdiction. Accordingly, the court concluded that Qualcomm’s need for the documents outweighed the confidentiality concerns of the foreign entities.14
The decision in In re Rubber Chemicals Antitrust Litigation is an example of a different approach to the comity issue. In Rubber Chemicals, the plaintiff brought private antitrust claims against a defendant chemical company whose foreign affiliate had recently been under investigation by the EC for potential antitrust violations.15 The plaintiff sought the production of documents that the defendant had provided to the EC as part of an effort to cooperate with the regulator’s antitrust investigation.16 The defendant objected, citing international comity, and the court agreed, denying the plaintiff’s motion to compel.17 The court put particular emphasis on the third factor in the comity analysis, noting that the documents were “created, transmitted, and used only in Europe and in conjunction with European enforcement proceedings.”18 As is common in multi-jurisdictional antitrust investigations, the defendant provided its EC submission only to the EC, and there is no indication that its submission was ever provided to any agency in the United States.19 The court credited a letter submitted by the EC in support of the defendant’s objection, finding that it “raise[d] concerns that discovery of the EC documents could impact U.S.-EU cooperation in the enforcement of the antitrust laws.”20 Taking these factors together, the court concluded that “[c]omity is a sensitive balance” but that “in this case the principles of comity outweigh the policies underlying discovery.”21
International comity can be used by litigants in U.S. antitrust litigation to limit the production of documents submitted to foreign enforcement agencies. While at first glance Rubber Chemicals and other cases like it may seem directly contrary to the FTC v. Qualcomm decision, important differences in the facts and contexts of the two cases suggest that they are reconcilable and that U.S. litigants, especially amnesty or leniency applications, continue to have strong, albeit not ironclad, arguments to keep their submissions to foreign enforcers confidential. As these cases demonstrate, the context of the submission is very important: For confidential leniency or amnesty submissions to a foreign agency enforcing its own laws that were not provided to U.S. agencies or otherwise used in the United States, U.S. courts have tended to give a higher degree of deference to comity concerns and to foreign enforcers’ desire to maintain the confidentiality of their cooperators. In other contexts, however – such as FTC v. Qualcomm, where the foreign enforcer voluntarily shared the submissions with a U.S. agency that was itself a party in the U.S. case – courts may find the comity interest substantially less compelling and may be more inclined to order the submissions to be produced. Although the five-factor test described above is well-established, it is impossible to provide firm assurances as to how U.S. courts will apply the test and resolve the issue in every instance.