ARTICLES: EU COMMISSION - MATERIALS - USA - CIVIL ANTITRUST LITIGATION

Discovery of European Commission materials in U.S. civil antitrust litigation: An update

Private plaintiffs in U.S. civil litigation seeking damages alleged to have resulted from cartel activities often view the European Commission’s case file as an important source of evidence against cartel participants and seek through U.S. discovery procedures to obtain access to materials in the Commission’s file. However, Commission regulation prohibits defendants from disclosing this material to third parties. Defendants are therefore compelled to resist this discovery—and typically do. This note seeks to explore the outcomes of cases in which defendants, with or without the Commission’s support, have resisted efforts to produce materials from the Commission’s file.

[1] I. Introduction 1. The European Commission, through its Directorate-General for Competition (“DG Comp”), has become one of the most active competition law enforcement entities in the world. [2] In particular, DG Comp has been extremely active in investigating and fining participants in cartels, imposing cumulative fines of €8,448,780,579 between 2010 and mid-2014. [3] A significant percentage of DG Comp’s cartel cases are generated by its immunity and leniency programs. [4] Companies seeking to take advantage of the Commission’s immunity program are required to submit a significant amount of information to the Commission throughout the immunity process, including an immunity application and supporting materials. [5] These materials generally will contain detailed information about the

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Authors

  • Brunswick Group (Washington D.C.)
  • Freshfields Bruckhaus Deringer (Washington)

Quotation

Terry Calvani, Jennifer E. Mellott, Discovery of European Commission materials in U.S. civil antitrust litigation: An update, January 2015, Concurrences N° 1-2015, Art. N° 70987, www.concurrences.com

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