Competition

• Author: International Law Group

Advanced Micro Devices, Inc. (AMD), a manufacturer of microprocessors, filed a complaint with the European Commission, Directorate-General for Competition. It charged that Intel Corporation has been abusing its dominant market position in violation of Article 82 of the EC Treaty (abuse of dominant position in common market). To support its complaint, AMD filed a petition under Section 1782 in a California district court, seeking the production of documents and transcripts from a proceeding in another district court. Intel objected, arguing that the matter before the EC Commission is not a "proceeding in a foreign or international tribunal" within the meaning of Section 1782.

The district court disallowed the discovery, and AMD appealed. As a matter of first impression, the U.S. Court of Appeals for the Ninth Circuit reverses and remands. The Court addresses (1) whether the proceeding for which discovery is sought is taking place in a "foreign or international tribunal", and (2) if so, whether Section 1782 requires a preliminary showing that the information sought would be discoverable or admissible in that proceeding.

Here, the Competition Directorate of the EC Commission conducts the investigation. Upon receipt of a complaint, the Directorate conducts a preliminary, nonadversarial investigation. The Director may seek information from the alleged infringer and may search the alleged infringer's business premises. At the end of the investigation, the Directorate decides whether to pursue the complaint further. If the Directorate concludes that infringement may have occurred, it will hold a hearing. Thereafter, the Directorate will make a recommendation on how to proceed. If it decides to dismiss the matter, the complainant may appeal to the EC Court of First Instance. If it decides to proceed, the EC Advisory Committee will issue an opinion which may become enforceable within the EC if adopted by the Commission. While the EC Commission is an administrative body, the investigations it conducts constitute quasi-judicial or judicial proceedings.

The language of Section 1782 is broad and inclusive and does not distinguish between civil and criminal proceedings. Ninth Circuit cases have read Section 1782 broadly to include "bodies of quasi- judicial or administrative nature" as well as preliminary investigations leading to judicial proceedings.

"Intel argues that the process for which AMD seeks...