Disclosure of Evidence in Cartel Litigations in the eu: is Balance of Victims' Rights and Public Interests Possible?
| Author | N. Mosunova |
| Position | Adecco Group Russia (Moscow, Russia) |
| Pages | 125-155 |
dISCLoSuRE of EvIdEnCE In CaRTEL LITIgaTIonS In ThE Eu:
IS BaLanCE of vICTImS’ RIghTS and PuBLIC InTERESTS PoSSIBLE?
NATALYA MOSUNOVA,
Adecco Group Russia
(Moscow, Russia)
The research focus is an assessment of disclosure rules in the European Union and
a perspective for implementation of the US discovery rules to improve European private
enforcement. For these purposes the EU disclosure rules are compared with the US discovery
rules; the inuence of tension between disclosure of evidence and leniency programme
on the eectiveness of protection of information is analyzed in order to propose areas
for improvement and solutions to nd a balance between some inconsistencies of the EU
disclosure rules with interests of European plaintis in cartel litigations.
The research method is not limited to a doctrinal approach to the EU and US legislation,
but includes case law, and secondary sources. This paper does not deal with particular
types of evidence and generic issues of disclosure unrelated to the cartel cases.
The author contends that the American model of discovery in cartel cases cannot be
transferred to the European context completely, even though disclosure of evidence in
the EU is rather inecient, and new rules are unlikely to protect consumers’ interests.
In terms of consumers’ interests, protection facilitating follow-on actions looks more
relevant on the EU level. Practically, the design of the US disclosure rules and priority of
consumers’ rights eectively allow victims from the EU to sue in the US and obtain all
necessary documents in the US proceeding. In this context convergence of the US and EU
positions on disclosure of leniency materials could bring more certainty both to plaintis
and defendants in cartel litigations.
Keywords: cartels; litigations; damages; disclosure of evidence; leniency.
Recommended citation: Natalya Mosunova, Disclosure of Evidence in Cartel
Litigations in the EU: Is Balance of Victims’ Rights and Public Interests Possible?, 2(1)
BRICS LJ (2015).
BRICS LAW JOURNAL Volume II (2015) Issue 1 126
1. Introduction
The purpose of this article is to evaluate the eectiveness of disclosure rules
in the European Union in comparison with the discovery of evidence in the US as
a jurisdiction with eective private enforcement1 and to determine to what extent
the US approach can be implemented to improve European private enforcement.
The impact of disclosure rules on cartel private enforcement is invaluable.
Disclosure of evidence directly aects the number of compensated victims; increases
the accuracy of fact-nding, damage assessment and probability of the victim’s
winning at trial;2 facilitate victims in suing for damages3 and decreases litigation
costs.4 Consequently, weakness of disclosure rules results in a lack of private
enforcement in the EU despite a universal legal basis for compensation claims.5
According to some estimates, private enforcement in the European Union barely
reaches 10%6 mainly due to the following-on actions while in the US private actions,
including high percentage of stand-alone actions, constitute up to 90% of the total
number of cases against cartels. Only very little credible data on stand-alone claims
can be found in the UK but the number of such claims has been relatively limited.7
Altogether, disclosure of evidence contributes to cartel deterrence by improving
private enforcement. For example, in the US private antitrust enforcement probably
deters more anticompetitive conduct than the Department of Justice’s anti-cartel
programme.8 Therefore, adequate disclosure rules not only increase accessibility of
1 Making Antitrust Damages Actions More Eective in the EU: Welfare Impact and Potential Scenarios:
Report for the European Commission, Contract DG COMP/2006/A3/012, at 11 (December 21, 2007), at
(accessed Aug. 11, 2015).
2 Id. at 17.
3 Id. at 19.
4 Id. at 345.
5 The Impact of Cartels on the Poor, U.N. Conference on Trade and Development, Trade and Development
Board, Trade and Development Commission, Intergovernmental Group of Experts on Competition Law
and Policy, 13th Sess., Item 3(a) of the Provisional Agenda: Consultations and Discussions Regarding Peer
Reviews on Competition Law and Policy, Review of the Model Law on Competition, and Studies Related
to the Provisions of the Set of Principles and Rules, ¶ 39, U.N. Doc. TD/B/C.I/CLP/24/Rev.1 (2013), at
unctad.org/meetings/en/SessionalDocuments/ciclpd24rev1_en.pdf> (accessed Aug. 11, 2015).
6 Cliord A. Jones, Private Enforcement of Antitrust Law in the EU, UK and USA 16 (Oxford University Press
1999); Andreas Heinemann, Private Enforcement in Europe, in The Development of Competition Law: Global
Perspectives 302 (Roger Zäch et al., eds.) (Edward Elgar Pub. 2010). doi:10.4337/9781849803571.00019
7 Marc Israel et al., United Kingdom: Private Antitrust Litigation, in The European Antitrust Review 2014,
at 306, at (accessed
Aug. 11, 2015).
8 Robert H. Lande & Joshua P. Davis, Comparative Deterrence from Private Enforcement and Criminal
Enforcement of the U.S. Antitrust Laws, 2014 BYU L. Rev. 315, available at
byu.edu/cgi/viewcontent.cgi?article=2591&context=lawreview> (accessed Aug. 11, 2015).
NATALYA MOSUNOVA 127
justice in cartel cases, which is essential for the deterrence of infringements but also
free up resources of the competition authorities for other purposes.
Access to evidence in private actions, designed to correct the harm caused to
consumers, is of particular value for the poorest groups of individuals and small
or medium-sized enterprises which are the most aected by anti-competitive
agreements among competitors.9 These groups of victims, seeking to obtain
evidence in private litigations, are the most vulnerable to an obvious structural
information asymmetry,10 when courts expect direct evidence of an anti-competitive
agreement from victims of cartel, but a substantial part of the documents explaining
the operation of a cartel is held by the cartelists. Thus, disclosure rules to facilitate
evidence gathering are the main challenge to cartel private enforcement11 especially
in original actions when there is no prior decision from a competition authority
establishing the infringement.
Evolution of disclosure in the EU and its controversial nature have been reected
in academic literature, ocial reports and legislation in the last decade. The Ashurst
Report identied the diculty of proving the various elements of liability as a serious
obstacle to damages actions and compared disclosure rules in a number of Member
States.12 The Green Paper investigated whether there should be special rules on
disclosure for damage actions and which form such disclosure should take.13 The
White Paper compared civil law and common law disclosure rules and their impact
on private enforcement in the EU.14 The provisions of these documents, rejecting
the US model of discovery, have caused heated debate in various jurisdictions.15
Representatives of the American Bar Association evaluated the European
disclosure as ‘a relatively little’ 16 and proposed principles of US discovery as an ideal
9 The Impact of Cartels on the Poor, supra n. 5, ¶ 6.
10 White Paper on Damages Actions for Breach of the EC Antitrust Rules, COM(2008) 165 nal, para. 2.2,
at (accessed
Aug. 11, 2015) [hereinafter White Paper].
11 Denis Waelbroeck et al., Study on the Conditions of Claims for Damages in Case of Infringement of
EC Competition Rules: Comparative Report 11 (Ashurst, August 31, 2004),
competition/antitrust/actionsdamages/comparative_report_clean_en.pdf> (accessed Aug. 11, 2015)
[hereinafter Ashurst Report].
12 Id.
13 Green Paper on Damages Actions for Breach of the EC Antitrust Rules, COM(2005) 672 nal, at
www.europarl.europa.eu/meetdocs/2004_2009/documents/com/com_com(2005)0672_/com_
com(2005)0672_en.pdf> (accessed Aug. 11, 2015) [hereinafter Green Paper].
14 White Paper, supra n. 10.
15 Daniel A. Crane, Optimizing Private Antitrust Enforcement, 63 Vand. L. Rev. 675 (2010), available at
repository.law.umich.edu/cgi/viewcontent.cgi?article=1129&context=articles> (accessed Aug. 11,
2015).
16 Comments of the ABA Sections of Antitrust Law and International Law on the European Commission’s
Draft Guidance Paper on Quantifying Harm in Actions for Damages Based on Breaches of Article 101 or
102 of the Treaty on the Functioning of the European Union (October 7, 2011),
competition/consultations/2011_actions_damages/aba_en.pdf> (accessed Aug. 11, 2015).
BRICS LAW JOURNAL Volume II (2015) Issue 1 128
model.17 Contrariwise, some authors assume that European rules have to be even
more limited in favour of ‘a complete protection of the leniency applications.’18 The
long-waited Directive of the European Parliament and of the Council on certain
rules governing actions for damages under national law for infringements of the
competition law provisions of the Member States and of the European Union, which
retains a cautious approach to disclosure of evidence, barely gives incentives to
harmonize procedural law of Member States, but does not give eective remedies
to obtain evidence. Although the reasons for dierences in private enforcement of
competition law in the EU and the US19 and ideas of borrowing from the US discovery
have been discussed by European and American academics and practitioners,20 it
is still an open question whether American style discovery in car tel cases would
work in the European Union. Another unsolved issue is a proper balance between
interests of victims in disclosure of evidence and interests of whistleblower applied
for leniency, which results in the practical question whether victims of cartels can use
dierences between the EU disclosure and US discovery to protect their interests. The
interaction of leniency programmes and disclosure in actions for damages remains
uncertain area on the global level.21
The main method is doctrinal research of the EU and US legislation, case law, and
secondary sources including academic literature and experts’ opinions. This research
does not deal with particular types of evidence (such as e-mail correspondence and
other digital evidence, testimony, etc.) and generic issues of disclosure unrelated to
the cartel cases.
In order to identify areas of weakness in the EU disclosure and weigh probability
of borrowing from US discovery, Ch. 2 compares the EU disclosure rules with the US
discovery rules and examines the relation of disclosure to legal traditions. Chapter 3,
rstly, investigates the tension of two main remedies to deter cartels – disclosure of
evidence and leniency programme – among the obstacles to extend the European
17 Comments of the ABA, supra n. 16, at 4.
18 Alex Petrasincu, Discovery Revisited: The Impact of the US Discovery Rules on the European Commission’s
Leniency Programme, 32 European Competition Law Review (ECLR) 356, 367 (2011).
19 Jones, supra n. 6.
20 Crane, supra n. 15; Comments of the ABA, supra n. 16.
21 Caroline Cauman, The Interaction of Leniency Programmes and Actions for Damages, 7 Competition Law
Review 181 (2011), available at
(accessed ug. 11, 2015); Samuel R. Miller et al., U.S. Discovery of European Union and U.S. Leniency Applications
and Other Condential Investigatory Materials, 2010(1) The CPI Antitrust Journal 2, available at
sidley.com/~/media/les/publications/2010/03/us-discovery-of-european-union-and-us-leniency-a__/
les/view-article/leattachment/2010-03-14--competition-policy-international--no__.pdf> (accessed
Aug. 11, 2015); Frédéric Louis, It Is Always Darkest Before the Dawn: Litigating Access to Cartel Leniency
Documents in The EU, in The International Comparative Legal Guide to: Competition Litigation 2013, at 11
(5th ed., Global Legal Group 2012), available at
Shared_Content/Files/Editorial/Publication/CL13_Chapter-2_WilmerHale.pdf> (accessed Aug. 11, 2015).
NATALYA MOSUNOVA 129
rules, and, secondly, evaluates eect of these restrictions on protection of declared
values. Chapter 4 provides solutions to balance some inconsistence of the EU
disclosure in order to protect interests of European plaintis in cartel litigation.
Finally, the Conclusion (Ch. 5) estimates disclosure rules in the EU; contends that the
American model of discovery in cartel cases cannot be transferred to the European
context completely and evaluates some aspects which can be harmonized in order
to facilitate disclosure of evidence.
2. In Which Aspects Are Disclosure Rules in the EU Weaker
Than the US Discovery?
This Chapter outlines aspects in which the EU disclosure is less ecient than the US
discovery and attempts to nd their interrelations with specicity of legal systems.
2.1. Disclosure v. Discovery
Disclosure of evidence is designed ‘to reveal relevant facts that the parties analyze
to develop their respective claims or defenses and eventually present them to the
judge or jury at tr ial’22 when relevant evidence is not publicly available and is held
by the alleged infringer or by third parties.23 In the EU the term ‘disclosure’ is used
in the same sense as ‘discovery’ in the US, however, the scope of disclosure varies
between countries that follow a civil law tradition (the majority of the EU members)
and countries that follow a common law tradition (such as the US, the UK, Ireland
and Cyprus).
In the EU many eorts of plaintis injured by cartels to redress their damages
have been frustrated by strictness of disclosure rules.24 Eectively, the plainti in
cartel litigation, applying for disclosure of evidence in the majority of EU Member
States, has to gather an initial amount of information, which is very close to the
documentary evidence needed to ultimately win the case.25 Another serious
obstacle is the requirement to have evidence in hand prior to ling lawsuits. These
limits usually are justied by probability of requests for more information than
defendants are ready to provide; that can increase the business risks and risks of
unfair competition (e.g., the requested information may be used in bad faith for
commercial benet rather than for protection of the violated rights). However, the
restrictions have led to the lack of private enforcement26 in the EU. In contrast, in the
22 Comments of the ABA, supra n. 16, at 2.
23 Making Antitrust Damages Actions More Eective in the EU, supra n. 1, at 345.
24 Comments of the ABA, supra n. 16, at 2.
25 Making Antitrust Damages Actions More Eective in the EU, supra n. 1, at 671.
26 Ashurst Report, supra n. 11, at 11.
BRICS LAW JOURNAL Volume II (2015) Issue 1 130
US, where plaintis can le a lawsuit vir tually with no evidence at hand,27 private
enforcement prevails over public enforcement. The vivifying eect of disclosure
rules on antitrust private enforcement is also conrmed by popularity of the UK
jurisdiction for bringing private antitrust actions,28 where the disclosure is more like
discovery rules in the US.
The EU position that the plaintiff has pleaded facts plausibly showing the
existence of an antitrust violation does not dier from that of the US29 because
recently, the United States shifted away from the notice-based exceptionalism when
a claimant was required to provide just ‘fair notice of what the plainti’s claim is and
the grounds upon which it rests’30 without details, toward a fact-based model which
is the global norm in the rest of the world.31
2.2. Dierences of Disclosure Rules in Cartel Cases in the EU and the US
2.2.1. Nature of Collection of Evidence
Discovery procedure in common law is more adversarial and allows the plainti
almost immediate access to the opponent’s information on the pre-trial phase whilst
in civil law countries relevant evidence becomes available to the parties gradually
only after cour t permission during the trial. In the UK and the US, parties exchange
the information upon the ling of a complaint and before the judge is called to assess
whether the case has merit.32 The pre-trial phase often brings parties’ position closer and
consequently leads to a voluntary settlement amongst the parties. However, the scope
of documents subject to mandatory disclosure in the UK proceedings is more limited
than the discovery allowed under the broader and more general US standard.33
In the US, plaintis in cartel cases obtain the necessary evidence from both
parties and third parties without specication of evidence unless the scope of
discovery is limited by court order if it ‘is relevant to any party ’s claim or defense –
including the existence, description, nature, custody, condition, and location of any
documents or other tangible things and the identity and location of persons who
27 S.I. Strong, Regulatory Litigation in the European Union: Does the U.S. Class Action Have a New Analogue?,
88 Notre Dame L. Rev. 899, 949, 950 (2012), available at
viewcontent.cgi?article=1361&context=facpubs> (accessed Aug. 11, 2015) [hereinafter Strong,
Regulatory Litigation].
28 Israel et al., supra n. 7.
29 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007); S cott Dodson & James M. Klebba, Global Civil
Procedure Trends in the Twenty-First Century, 34 B.C. Int’l & Comp. L. Rev. 1 (2011), available at
lawdigitalcommons.bc.edu/iclr/vol34/iss1/2> (accessed Aug. 11, 2015).
30 Conley v. Gibson, 355 U.S. 41, 47, 48 (1957).
31 Dodson & Klebba, supra n. 29.
32 Fed. R. Civ. P. 26(c); Civil Procedure Rules 2013 [hereinafter CPR], Rule 31.5(3).
33 S.I. Strong, Jurisdictional Discovery in United States Federal Courts, 67 Wash. & Lee L. Rev. 489, 501, 522
(2010), available at (accessed Aug. 11, 2015).
NATALYA MOSUNOVA 131
know of any discoverable matter.’34 This generous rule covers matters inadmissible
as evidence if they ‘lead to the discovery of . . . evidence’ in order to assist a party ‘in
the preparation or presentation of his case.’35 In the UK, a party is only required to
disclose documents that adversely aect its own case, or that support or adversely
aect another par ty’s case. However, plaintis in the UK can obtain documents
from a subsidiary company located in another state if a defendant has a UK parent
company because the obligation to disclose documents extends to those that are
within a party’s possession, control or right to inspect.36
In the majority of the EU Member States, as civil law countries, the collection of
evidence in private litigation normally starts during the proceeding, after the ling of
the claim under the direct supervision of the judge. For example, the German Code
of Civil Procedure37 (Sec. 142) requires that parties produce their own evidence and
documents that they intend to use themselves in a case and set limited disclosure
rules. Firstly, litigants in cartel cases in Germany must obtain cour t approval to
engage in discovery. Secondly, the court will per mit the taking of evidence only if
the discovery sought is (a) relevant to the outcome of the case, and (b) necessar y
to clarify disputed facts. Moreover, under Sec. 142 ZPO38 it is not enough to plead
that such a document ‘usually exists’ – a party must refer to the actual document in
one of its pleadings.
2.2.2. Regime of Information
Evidence in private cartel litigations usually contains sensitive business information
related to infringement of the law, causality between anticompetitive behaviour
and damages or the amount of damages arising from anticompetitive conduct. The
common law system allows disclosure of trade secrets, other condential research,
development, or commercial information with some exceptions including the right for
a protective order39 while in civil law countries this information is generally secret.40
Parties in US private antitrust actions typically obtain internal correspondence,
transactional data, price lists, other price information, supply information, business
plans and projections, market share information, conspiratorial communications with
competitors, documents produced pursuant to subpoena to the government, grand
34 Fed. R. Civ. P. 26(b)(1).
35 Notes of Advisory Committee on Rules – 1946 Amendment, subdivison (b), at
cornell.edu/rules/frcp/rule_26> (accessed Aug. 12, 2015) (citing: Engl v. Aetna Life Ins. Co., C.C.A.2,
1943, 139 F.2d 469; Mahler v. Pennsylvania R. Co., E.D.N.Y.1945, 8 Fed. Rules Serv. 33.351, Case 1).
36 CPR, Rule 31.8.
37 Zivilprozessordnung [hereinafter ZPO]. English version is available at
de/englisch_zpo/englisch_zpo.html> (accessed Aug. 12, 2015).
38 Id.
39 Fed. R. Civ. P. 26(c)(1)(G).
40 Making Antitrust Damages Actions More Eective in the EU, supra n. 1, at 348.
BRICS LAW JOURNAL Volume II (2015) Issue 1 132
jury materials, and materials submitted as part of leniency applications relating to the
anticompetitive conduct at issue and source materials of formal submissions which
participants of cartel have made to the authorities.41 Disclosure in the UK context is
also considerably broader than across most legal systems in continental Europe,42
although some limits are set in Hutchison 3G UK Ltd. v. O2 (UK) Ltd., particularly, ‘the
need for a highly focused application.’43
In the EU, the condentiality of business secrets or other condential information
is considered a necessary limit on disclosure44 and evidence is classied as the ‘black’
list (evidence which may never be disclosed including leniency documents), the
‘grey’ list (information prepared by a neutral or legal person specically for the
proceedings of a competition authority, such as the parties’ responses to statements
of objections and information requests, which may be disclosed after a competition
authority has closed its proceedings) and the ‘white’ list (evidence which may be
disclosed at any time). It is noteworthy that, under no circumstances can evidence
from the black or grey lists be used in a private ac tion even if a party obtains
them through access to the le of a competition authority during the course of
proceedings. Eectively, this means that the EU disclosure rules are removed back
from the Peiderer judgment of the ECJ,45 which held that leniency material could
be disclosed and the strictest approaches of the EU Member States are unlikely to
be changed. For example, German courts refuse disclosure of leniency documents
following a broad interpretation of the concept investigation, which covers the
overall activity of competition authorities in detecting cartels46 and refuse to grant
the disclosure because the purpose of the investigations could be jeopardized.47 The
role of secret materials in the calculation of the quantum of the damage and the
availability of alternative elements to prove the existence of damage are supposed to
be less important than role leniency programmes, which contribute indirectly to the
41 Sebastian Jungermann & Terri A. Mazur, How to Obtain a nd Use US Discovery in Europe an Private
Antitrust Actions, IFLR Magazine (Jan. 21, 2013),
and-use-US-discovery-in-European-private-antitrust-actions.html> (accessed Aug. 12, 2015).
42 Barry J. Rodger, Competition Law Litigation in the UK Courts: A Study of All Cases 2005–08 – Part II, 2009
Global Competition Litigation Review 136, 144, available at
GCLR_article_part_2.pdf> (accessed Aug. 12, 2015).
43 [2008] EWHC 55 (Comm.), paras. 38–40.
44 Green Paper, supra n. 13, at 6.
45 Case C-360/09, Peiderer AG v. Bundeskartellamt, 2011 E.C.R. I-5161, at
liste.jsf?language=en&num=C-360/09> (accessed Aug. 22, 2015).
46 The German Code of Criminal Procedure (Strafprozeßordnung (StPO)), Sec. 406e(2). English version
is available at (accessed
Aug. 12, 2015).
47 Pablo G. de Zárate Catón, Disclosure of Leniency Materials: A Bridge between Public and Private Enforcement
of Antitrust Law para. 4.2.1 (College of Europe, Department of European Legal Studies, Research Papers
in Law 08/2013), ton.pdf>
(accessed Aug. 12, 2015).
NATALYA MOSUNOVA 133
success of cartel damage actions due to binding eect of the German competition
authorities before the national court.48
2.2.3. Judicial Involvement
In common law states, obligations to disclose evidence are set by the law, and
do not require any ad hoc disclosure order by the court. The parties are under two
general obligations during the pre-trial phase: the disclosure obligation and the duty
to fulll discovery requests.49 In civil law states, only the court may issue an order
requesting the opponent or a third party to disclose a specic document.50 Although
the conditions to be fullled to obtain a disclosure order vary widely across Member
States, a need to apply for a court order certainly does not facilitate disclosure
process. In addition, in civil law jurisdictions courts are involved in a preliminary
assessment of the robustness of the case which is independent and conditional
to the proof of some facts.51 Often parties have to prove specic and substantiated
reasons why they cannot produce the do cumentary evidence, and to specify the
relevant categories of evidence as precisely as can reasonably be expected.
However, the wider the judge’s right to supplement the plainti’s request for
disclosure, the fewer restrictions for specication of documents are imposed on
the requesting party: France, Czech Republic, Denmark, Latvia, Luxembourg, Malta,
the Netherlands, Poland and Sweden provide more powers to the court regarding
integration of evidentiary requests by parties and set less strict requirements to
a disclosure order. In France, for example, the party is not required to name the
exact document, but must at least specify what kind of document they want to be
produced.52 In contrast, in Austria, Belgium, Estonia, Finland, Germany, Greece, Italy,
Lithuania, Portugal, Slovak Republic, Slovenia and Spain parties have to specify the
document required, its content, its location, the relevance for the case and the reason
why they are not able to produce it directly in the trial.53 The Directive keeps both
types of court interventions54 and obliges judges to assess the disclosure requests
for relevance, necessity, and proportionality.55
48 Zárate Catón, supra n. 47, para. 4.2 (citing AG Bonn, 18.01.2012 – 51 Gs 53/09, NJW 2012, 947).
49 Fed. R. Civ. P. 26(c); CPR, Rule 31.5(3).
50 ZPO, Sec. 142.
51 Making Antitrust Damages Actions More Eective in the EU, supra n. 1, at 348.
52 Ashurst Report, supra n. 11, at 65.
53 Id. at 64.
54 Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 on Certain
Rules Governing Actions for Damages under National Law for Infringements of the Competition
Law Provisions of the Member States and of the European Union, Art. 5, 2014 O.J. (L 349) 1, 12–13, at
Aug. 12, 2015) [hereinafter Directive].
55 White Paper, supra n. 10, at 5; Directive, supra n. 54, Art. 5(3).
BRICS LAW JOURNAL Volume II (2015) Issue 1 134
2.3. Legal Traditions as Foundation of Dierences between US Discovery and
EU Disclosure
The outlined similarities of disclosure in the UK and discovery in the US raise the
question of the correlation of availability of evidence and disclosure limits within the
law family and, consequently, of prevailing types of enforcement. Indeed, the procedure
in civil law countries is more inquisitorial than in the common law countries including
the UK and the US.56 Then, the US system for enforcement of antitrust law follows the
paradigm of private antitrust enforcement57 which has widely used cartel deterrence
through the private plaintis’ lawsuits; public enforcement by the US Department
of Justice [hereinafter DoJ] and Federal Trade Commission (FTC) was added only at
a later stage.58 Сollective or so-called class actions can also promote the development
of discovery of evidence in common law states.59 Similar processes, including generous
disclosure rules, made the UK courts the popular ‘forum of choice’ in private antitrust
actions.60 In contrast, even private damages actions for breach of competition law have
been in doubt till the middle of the 1990s in the EU.61 The dominance of public interests
over compensation of damages in protection of whistleblowers from disclosure also
indicates a greater role of public enforcement in civil law countries.
These fundamental dierences increase costs of any convergence of disclosure
rules. For example, shift toward common law style disclosure, when parties have to
provide opponents with a list of all relevant documents in their possession unless the
court decides that the disclosure requests are disproportionate, in all the EU Member
States would entail very high harmonization costs, since all civil law countries would
be forced to adapt their legislation to introduce a completely dierent procedural
structure, similar (but not exactly comparable) to the one currently adopted in the
UK.62 Such harmonization would require not only the specication of a new set of rules
for antitrust claims, but also training costs for both judges and lawyers everywhere
in the EU except the UK, Ireland and Cyprus.63 For this reason harmonization costs
have been considered to be highest for this option.
56 John T. Lang, Foreword, in Jones, supra n. 6, at viii.
57 Jones, supra n. 19, at 3.
58 Jungermann & Mazur, supra n. 41; Jones, supra n. 19.
59 Strong, Regulatory Litigation, supra n. 27.
60 EU Parliament Backs Cartel Evidence Release Proposals But Leniency Corporate Statements to Remain
Confidential, Out-Law.com (Apr. 23, 2014),
eu-parliament-backs-cartel-evidence-release-proposals--but-leniency-corporate-statements-to-
remain-condential/> (accessed Aug. 12, 2014).
61 Jones, supra n. 19, at 70–75 (citing: Joined Cases C-6/90 and C-9/90, Francovich v. Italian Republic, 1991
E.C.R. I-5357; Case C-128/92, H.J. Banks & Co. Ltd. v. British Coal Corporation, 1994 E.C.R. I-01209).
62 Making Antitrust Damages Actions More Eective in the EU, supra n. 1, at 372.
63 Id. at 383.
NATALYA MOSUNOVA 135
Complexity of the system of priorities of EU competition law also entails limits in
disclosure rules in antitrust litigations. Although consumer welfare, the promotion
of small and medium-sized business and single market integration have all been
announced as the objectives of EU competition law,64 ‘the basic sin in Europe is not so
much restricting competition but creating an obstacle for integration.’65 The objective
of US antitrust law is more specic: the US antitrust laws have had protection of the
process of competition for the benet of consumers, making sure there are strong
incentives for businesses to operate eciently, keep prices down, and keep quality
up as the basic objective.66 Thus, the broader scope and plurality of objectives of EU
competition law made the procedure more complicated.67
To sum up, disclosure in the EU is more complicated for plaintis because it is
court-ordered (rather than party-initiated, as in the United States); applicants have
to convince the court that they cannot reasonably obtain the facts except through
the procedure and specify the precise categories of information to be disclosed in
spite of informational asymmetry. However, considering that the majority of the
EU members belong to the civil law system, the European plaintis are unlikely to
have the same opportunity to obtain evidence as their US fellows, not only because
both the White Paper and following Directive68 reject the US model of discovery,69
but also because there are no necessary system elements for implementation of the
US model and transferred rules would not work eectively in the existing European
system. The next chapter examines the main obstacle to extension of the current
scope of disclosure in the EU in order to nd a way to make disclosure of evidence
in cartel cases more ecient.
3. Obstacles to Extend Disclosure in the EU
Chapter 2 has concluded that borrowing the US discovery rules would be
inecient due to characteristics of the civil law system; however, since disclosure
in the EU is limited, options for its expansion and objections should be considered.
Protection of condential information is one of objections against wide disclosure,
especially in antitrust litigation when parties’ requests can invade business secrets
or leniency documentation and disclosure of evidence not only to consumers but
64 First Report on Competition Policy, European Commission (April 1972), at
competition/publications/annual_report/ar_1971_en.pdf> (accessed Aug. 12, 2015).
65 Jones, supra n. 6, at 26.
66 Guide to Antitrust Laws, Federal Trade Commission,
guidance/guide-antitrust-laws/antitrust-laws> (accessed Aug. 12, 2015).
67 Jones, supra n. 19, at 27.
68 Supra n. 54.
69 Crane, supra n. 15, at 676.
BRICS LAW JOURNAL Volume II (2015) Issue 1 136
also to competitors can result in unfair competition. Chapter 3 assesses protection
of information as the main reason for restrictions of disclosure and eectiveness of
these restrictions in order to set forth areas for improvement.
3.1. Access to Trade Secrets and Disclosure
Interestingly, objections relating to the protection of trade secrets do not create
a special obstacle for disclosure of evidence in cartel cases in spite that nature of
valuable information regarding products, prices, companies’ strategies and market
data in this context is similar to leniency documentation. Indeed, limits on disclosure
of business secrets are more procedural than substantive and aimed to exclude
‘shing expeditions,’ i.e. using the disclosure to nd out information beyond the fair
scope of the lawsuit.70 Both EU and US jurisdictions allow disclosure of business secrets
with appropriate protection by such special measures as the possibility of redacting
sensitive passages in documents, conducting hearings in camera, restricting the
circle of persons entitled to see the evidence, and instruction of experts to produce
summaries of the information in an aggregated or otherwise non-condential form71
or by moving for a protective order.72 In the UK, courts, among other measures,
consider whether there are other ways of obtaining the information which is sought.73
Therefore, since disclosure of business secrets primarily protects vic tims’ interests
and only secondarily – business secrets of parties, the rules protecting business
secrets and other condential information seem unlikely to impede the exercise of
the right to compensation more than other procedural rules. Disclosure of leniency
documentation has much more ambiguous status.
3.2. Disclosure of Evidence and Leniency Programme: Seeking a Priority
Tensions of disclosure with leniency programmes are the most fundamental
reason explaining the restrictiveness of disclosure in private antitrust litigation in
Europe. On the one hand, both disclosure rules and leniency programmes constitute
the remedy to detect and deter cartels, but, on the other hand, disclosure of leniency
statement decreases the attractiveness of leniency programmes for business
signicantly: news that the European Commission or the US DoJ’s Antitrust Division
is conducting an investigation often prompts the ling of civil class action suits in
the United States and requests for discovery of materials submitted by defendants
to competition authorities.74
70 Duhaime’s Law Dictionary,
(accessed Aug. 21, 2015); Macmillan Dictionary,
british/shing-expedition> (accessed Aug. 21, 2015).
71 Directive, supra n. 54, Preamble, para. 18.
72 Fed. R. Civ. P. 26(c)(1)(G).
73 Paul Matthews & Hodge M. Malek, Disclosure 436 (4th ed., Sweet & Maxwell; Thomson Reuters 2012).
74 Miller et al., supra n. 21, at 2.
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3.2.1. The EU: Evolution from Case-by-Case Basis to Direct Prohibition
The EU position on disclosure of leniency statements has evolved from neutral
permission to solve this issue in national courts of Member States in accordance
with national rules in the landmark judgement in Peiderer75 to direct prohibition in
the Directive. In Peiderer a customer of German decorative paper producers sought
to obtain access to the competition authorities’ (Bundeskartellamt) documentation
to strengthen its damages claim against the producers who participated in the
cartel agreement. The Bundeskartellamt refused access to all leniency documents.
Upon appeal by Peiderer as a plainti, the Amtsgericht Bonn disagreed with the
Bundeskartellamt and decided that Peiderer was entitled to access under German
rules, but agreed to refer preliminary questions to the Court of Justice ‘to weigh
and balance the possibly diverging interests of ensuring the ecacy of leniency
programmes . . . with the right of any individual to claim damages for harm suered
as a result of . . . cartels.’76 Among arguments ‘pro’ disclosure of leniency material in this
case was the fact that the Bundeskartellamt’s investigation into the decorative paper
cartel was over, so access to the leniency documents could not harm the investigation
in that particular case.77 The opponents argued, that in that case the disclosure ‘could
seriously undermine the attractiveness and thus the eectiveness of that authority’s
leniency programme,’ leniency applicants ‘will nd themselves in a less favourable
position in actions for civil damages, due to the self-incriminating statements and
evidence which they are required to present to the authority, than the other cartel
members’ and, consequently, potential applicants will ‘abstain from applying for
leniency altogether or alternatively be less forthcoming with a competition authority
during the leniency procedure.’78 In addition, the Advocate General indirectly set
the priority of public enforcement over private enforcement: ‘[ T]he role of the
Commission and national competition authorities is . . . of far greater importance
than private actions for damages’79 and highlighted that victims of cartels also benet
from eective leniency programmes.80 Nevertheless, the Court ruled that applicable
national disclosure rules should not make obtaining of compensation practically
impossible or excessively dicult for plaintis and conrmed the right of national
courts ‘to weigh the respective interests in favour of disclosure of the information and
in favour of the protection of that information provided voluntarily by the applicant
for leniency’81 on the case-by-case basis for balancing interests exercise.
75 Peiderer, supra n. 45.
76 Peiderer, supra n. 45, Opinion of AG Mazák ¶ 2.
77 Id. ¶¶ 19–20.
78 Id. ¶ 38.
79 Id. ¶ 47.
80 Id. ¶¶ 41–46.
81 Peiderer, supra n. 45, Judgment ¶ 30.
BRICS LAW JOURNAL Volume II (2015) Issue 1 138
The Peiderer judgement has been criticized for several reasons. Firstly, because
‘most civil liability systems in the EU are purely compensatory in nature and do not
allow any “punitive” element in a damages award . . .’82 Secondly, the necessity of
additional monetary awards against cartel defendants for deterrence purposes has
been questioned due to success of administrative nes for anticompetitive conduct
to ensure deterrence. Finally, those actions have not helped to uncover cartel activity
because ‘all cartel damages actions to date have been so-called “follow-on” actions,
i.e. actions that were only started following on the announcement that a public
enforcement investigation had been initiated . . .’83
After Peiderer, positions of national courts on disclosure of leniency materials have
been varied in the EU Member States: the judgments of the German and the United
Kingdom courts on this issue were completely polar.84 For example, Amtsgericht Bonn85
decided that, under German law, it would not be in the public interest to disclose
any leniency document to Peiderer because disclosing the leniency documents
would prejudice the success of the Bundeskartellamt’s leniency programme, which is
a primary tool in ghting cartels,86 and, in addition, the leniency documents were not
necessary for Peiderer to bring its damages claim and that failure to disclose these
documents did not make the claim practically impossible or excessively dicult.87
Similarly, according to the Oberlandesgericht Düsseldorf, access to leniency documents
has relatively little value for the claimant in comparison with the cartel authority’s
nding of infringement and these documents would not necessarily assist a court’s
assessment of causation and damages. Therefore, in Germany the claimant’s interest
in accessing the leniency material did not outweigh the leniency applicant’s interest
in maintaining condentiality.88
The opposite position on disclosure of leniency documentation can be found in
National Grid.89 When the plainti sought access to condential pleadings of ABB,
Areva, and Siemens in leniency applications, the High Court considered that, rstly,
82 Louis, supra n. 21, at 12.
83 Id.
84 Michael Sanders et al., Disclosure of Leniency Materials in Follow-on Damages Actions: Striking ‘the Right
Balance’ between the Interests of Leniency Applicants and Private Claimants?, 34 European Competition
Law Review (ECLR) 174, 175 (2013).
85 AG Bonn, supra n. 48. The English press release (dated January 30, 2012) is available at
bundeskartellamt.de/SharedDocs/Meldung/EN/Pressemitteilungen/2012/30_01_2012_Peiderer.
html> (accessed Aug. 22, 2015).
86 Louis, supra n. 21, at 12 (citing AG Bonn, supra n. 48, ¶¶ 28–30).
87 Id. at 12 (citing AG Bonn, supra n. 48, ¶¶ 36–37).
88 Sanders et al., supra n. 84 (citing OLG Düsseldorf, 22.08.2012 – V-4 Kar t 5/11 (OWi), V-4 Kart 6/11
(OWi), BB 2012, 2459).
89 National Grid Electricity Transmission plc v. ABB Ltd. & Ors., [2012] EWHC 869 (Ch.).
NATALYA MOSUNOVA 139
risks to the Commission’s leniency programme could not justify a wholesale refusal
of disclosure of leniency materials.90 Then, the High Court identied a new standard
of assessment of public interest in protecting the Commission’s leniency programme
through the proportionality review inherent in applying the UK rules on discovery,
in particular through checking ‘(a) whether the information is available from other
sources and (b) the relevance of the leniency materials to the issues in this case.’91
Unfortunately, this attitude to the disclosure of leniency materials has not been
developed and the issues of standards in leniency disclosure have infrequently
arisen in other cases.92
Eventually, the Directive93 rejected compromising models of disclosure of
leniency materials and now it explicitly mirrors the opinion of the Advocate General
in Peiderer. Justifying the exclusion of leniency documentation from disclosure,
the Note from General Secretariat of the Council highlights the importance of
leniency programmes and settlement procedures for the public enforcement of
Union competition law, particularly for the detection, the ecient prosecution and
the imposition of penalties for the most serious competition law infringements.94
Following this message, the Directive, explaining exclusion of leniency documents
from disclosure, underlines the key role of undertakings which cooperate with
competition authorities under a leniency programme in detecting secret cartel
and assumes that the harm which could have been caused had the infringement
continued is mitigated.95 Therefore, there is a new challenge for the UK approach to
disclosure of leniency materials which has had an intermediate position between
nearly absolute discovery in the USA and conditional disclosure prescribed in
Peiderer. For example, a Consultation on Options for Reform96 proposed balanced
(and fair) scope of disclosure of leniency documents: to protect from disclosure
90 National Grid, supra n. 89, para. 36.
91 Id. para. 39.
92 Sanders et al., supra n. 84, at 177 (citing: Case T-2/03, Verein für Konsumenteninformation v. Commission,
2005 E.C.R. II-01121; Case T-237/05, Éditions Jacob v. Commission, 2010 E.C.R. II-02245; Case T-344/08,
EnBW Energie Baden-Württemberg v. Commission, 2012 E.C.R. I-0000).
93 Supra n. 54.
94 Proposal for a Directive of the European Parliament and of the Council on Certain Rules Governing Actions
for Damages under National Law for Infringements of the Competition Law Provisions of the Member
States and of the European Union – Analysis of the Final Compromise Text with a View to Agreement:
Note to the Permanent Representatives Committee, General Secretariat of the Council, RC 6 JUSTCIV 76
CODEC 885 2014, at 26 (recital 21a), at
8088%202014%20INIT> (accessed Aug. 21, 2015).
95 Directive, supra n. 54, Preamble, para. 26.
96 Private Actions in Competition Law: A Consultation on Options for Reform para. 7.4, Department for
Business Innovations and Skills (April 2012), at
uploads/attachment_data/le/31528/12-742-private-actions-in-competition-law-consultation.pdf>
(accessed Aug. 21, 2015).
BRICS LAW JOURNAL Volume II (2015) Issue 1 140
only documents which are directly involved in the leniency application and which
would not have been created if the company had not been seeking leniency.97 The
UK government in its Response to options for reforming the private antitrust actions
regime, decided that the issue of the protection of leniency materials from disclosure
would not be addressed in legislation in the UK.98
To sum up, conict of disclosure and leniency programmes in detecting and
deterring cartels in the EU results in the priority of protection of whistleblowers
over compensation for consumers. Whilst a step back from Peiderer and narrowing
of disclosure is unlikely to be noticed in the majority of Member States, it brings
uncertainty to plaintis in the UK.
3.2.2. The US: Case-by-Case Analysis
In the US, the conicts between the liberal scope of US discovery and sovereign
promises that certain information or evidence would remain condential are solved
on a case -by-case analysis because there is no explicit countervailing statute or
procedural rule that would clearly protect information provided by leniency
applicants, whereas Fed. R. Civ. P. 26(b) provides just a general presumption of
broad discoverability. The case-by-case basis does not bring cer tainty to litigants
and states. For example, in Flat Glass99 the District Court had compelled discovery of
amnesty-related documents which created a direct threat to the US government’s
leniency program.100 Later, in Intel Corp. v. Advanced Micro Devices101 the US Supreme
Court determined that the materials did not need to be independently discoverable
in either US or foreign proceedings and non-privileged confidential materials
(potentially including US and EU leniency applications and associated investigative
documents) may be subject to discovery.102 However, in Micron Technology103 the
court agreed with the DoJ’s position that the discovery would damage the leniency
programmes, current and future investigations and used the law enforcement
privilege to protect leniency materials from disclosure.104 A paperless p rocess of
application under the US DoJ antitrust leniency programme105 has been designed
to reduce risks of uncertainty for whistleblowers but it is unlikely to help to solve
issues of disclosure of the EU leniency materials.
97 Private Actions in Competition Law, supra n. 96, para. 7.6
98 Israel et al., supra n. 7.
99 In re Flat Glass Antitrust (I), MDL No. 98-0550 (W.D. Pa. 1998).
100 Miller et al., supra n. 21, at 8.
101 Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 260-63 (2004).
102 Miller et al., supra n. 21, at 9.
103 In re Micron Technology, Inc. Securities Litigation, No. 09-mc-00609 (Doc. No. 17) (D.D.C. Feb. 1, 2010).
104 Miller et al., supra n. 21, at 10.
105 Louis, supra n. 21, at 13.
NATALYA MOSUNOVA 141
Leniency materials of the European Commission are also under threat of discovery
in the US because, despite a paperless leniency process, EU cartel proceedings are
essentially conducted in writing and information extracted from leniency statements
is incorporated in Commission Statements of Objections (SO) and in the ultimate
ning decisions. However, in most cases,106 except the Vitamins litigation,107 the
Commission managed to prevent the disclosure of leniency documents through the
use of US pre-trial discovery by ‘writing to or intervening as amicus curiae before US
courts to oppose plaintis’ motions to compel discovery of leniency documents.’108
3.3. Discovery in the US and European Taboo: Does It Make Sense to Exclude
Leniency Materials from Disclosure?
The broad scope of discovery in the US raises a question of the relation between
the US discovery rules and the European Commission’s leniency programme because
the US procedural rules do not protect information provided by European leniency
applicants from discovery. On the one hand, immunity from discovery can be given
to a foreign sovereign’s amnesty programme pursuant comity agreement in cases
when those documents are granted immunity from civil litigations by a foreign
sovereign like, e.g., in Rubber Chemicals,109 when the court denied discovery of
communications with the European Commission regarding corporate leniency
programme due to a forceful comity analysis. On the other hand, this immunity is
not guaranteed: in the Vitamins110 case the Commission’s interests were recognized
as ‘not more important as the interests of the United States in open discovery and
enforcement of the antitrust laws.’111 So plaintis in civil litigations against cartels in
the United States may obtain leniency materials from European Commission rather
than from Antitrust Division in criminal investigations, because the Antitrust Division
is unlikely to request documents in the possession of foreign companies in other
states. A formal procedure for an oral leniency application has been introduced to
avoid the problems associated with US discovery but it is unlikely that this method
of application can totally prevent discoverability of leniency materials in the US112
106 Louis, supra n. 21, at 11 (citing: In re Methionine Antitrust Litigation, No. 00-1311, 2003 WL 22048232
(N.D. Cal. Jun. 17, 2002); In re Rubber Chemicals Antitrust Litigation, 486 F. Supp. 2d 1078 (N.D. Cal. 2007);
In re Flat Glass Antitrust Litigation (II), No. 08-180, 2009 WL 331361 (W.D. Pa. Feb. 11, 2009); In re TFT-LCD
(Flat Panel) Antitrust Litigation, No. M 07-1827 SI, 2011 WL 560593 (N.D. Cal. Feb. 15, 2011); In re Air Cargo
Shipping Services Antitrust Litigation, No. 06-MD-1775, 2010 WL 1189341 (E.D.N.Y. Mar. 29, 2010).
107 In re Vitamins Antitrust Litigation, 209 F.R.D. 251 (D.D.C. 2002).
108 Louis, supra n. 82, at 13.
109 Supra n. 106.
110 In re Vitamins Antitrust Litigation, No. 99-197, 2002 WL 34499542, at *10 (D.D.C. Dec. 18, 2002).
111 Id. at *82.
112 Petrasincu, supra n. 18, at 356.
BRICS LAW JOURNAL Volume II (2015) Issue 1 142
since the rest of leniency materials is still in paper. The risk that leniency materials
of companies considering co-operation with the Commission can be used in the US
civil proceeding as evidence against them still exists. It is argued, that this risk can
signicantly reduce the eectiveness of the Commission’s leniency programme.113
Specic threats must be examined in order to assess the reality of harm to the EU
leniency programme.
3.3.1. Are Rights of European Defendants Well Protected?
Leniency applications of the EU defendants are at risk of discovery114 since
plaintis in the US can directly require the defendants to provide the written leniency
applications they have submitted to the European Commission. Several privileges
can be used to limit discovery in this case albeit their success is also questionable. For
example, in the overwhelming majority of cases, the attorney-client privilege would
be waived by producing documents to government authorities and, consequently,
a leniency application to the European Commission would not be protected by
this privilege.115 Similarly, work-product immunity which is dened as a qualied
immunity of an attorney’s work-product from discovery in order to protect the
litigation strategy devised by the attorney116 can be waived if the document is
disclosed to an adversary;117 since any governmental authorities can be adversaries
in that sense,118 then any leniency applications to the European Commission would
not be protected by the this privilege. Law-enforcement investigatory privilege could
be useful if the European Commission can invoke this privilege.
3.3.2. How to Resist ‘Fishing Expedition?’
A wide-spread ‘shing expedition’ fear, based on knowledge of the existence of
a leniency application in Europe, is groundless due to the successful prevention by
the US federal courts, following the Supreme Court’s Twombly119 decision. The case
concerned a putative class action against major telecommunications providers,
suspected of engagement, rstly, in parallel conduct to inhibit the growth of upstart
competitive local exchange carriers by unfair agreements preventing access of new
competitors to the networks, and, secondly, in agreements not to compete with
113 Petrasincu, supra n. 18, at 361.
114 Id. at 363.
115 In re Vitamins Antitrust Litigation, No. 99-197, 2002 U.S. Dist. LEXIS 26490, at **94, 96 (fn. 50), 101–03.
116 Hickman v. Taylor, 329 U.S. 495, 509–12 (1947); Holmgren v. State Farm Mutual Automobile Insurance
Co., 976 F.2d 573, 576 (9th Cir. 1992); In re Syncor Erisa Litigation, 229 F.R.D. 636, 644 (C.D. Cal. 2005).
117 United States v. Massachusetts Institute of Technology, 129 F.3d 681, 687 (1st Cir. 1997); Westinghouse
Electric Corp. v. Republic of the Philippines, 951 F.2d 1414, 1429 (3rd Cir. 1991).
118 Westinghouse, supra n. 117, at 1428; In re Subpoenas Duces Tecum, 738 F.2d 1367, 1372 (D.C. Cir. 1984).
119 Supra n. 29.
NATALYA MOSUNOVA 143
each other. In support of this claim, the complaint pointed to the defendant’s failure
to meaningfully pursue attractive business opportunities. The Distric t Court had
dismissed the complaint for failure to state a claim, the Cour t of Appeals reversed,
the Supreme Court reversed arguing that defendant seeking to defend against the
allegations would have almost no idea where exactly to begin because plaintis
had no any assumption of a specic time, place, or person involved in the alleged
conspiracy.120 At the beginning, the Court underlined that a showing of parallel
behaviour is admissible as circumstantial evidence from which an agreement may
be inferred, but that parallel behaviour in itself does not conclusively establish an
agreement.121 Then, in order to suggest that an agreement was made, enough factual
matter has to be included in a claim under the Sherman Act (Sec. 1) to comply
with pleading standard.122 Moreover, a probabilit y requirement at th e pleading
stage is not imposed simply by asking for plausible grounds to infer an agreement;
it means that enough facts are required to raise a reasonable expectation that evidence
of an agreement in violation of the Sherman Act will be revealed by discovery.
It is notewor thy that in regard of discovery the Court emphasized the ‘potentially
enormous expense of discovery ’ and the pressure this might exert on defendants
to settle cases early-on even without reasonable ‘hope that the [discovery] process
will reveal relevant evidence.’123 Therefore, the Supreme Court eectively cancelled
the threat of its earlier holding in Conley v. Gibson when ‘a complaint should not be
dismissed for failure to state a claim unless it appears beyond doubt that the plainti
can prove no set of facts in suppor t of his claim which would entitle him to relief.’124
Findings from Twombly have been conrmed in a number of cases125 and improved in
the case Ashcroft v. Iqbal where the Court emphasized that plausibility is not deemed
to introduce a probability requirement, but it requires more than the mere possibility,
and considered that the probability requirement is not met if the plainti pleads facts
that are merely consistent with the liability of the defendant.126
The criteria of discoverability following the Supreme Court’s Twombly decision
can be articulated as follows: both direct or circumstantial evidence can be used for
alleging a violation of the Sherman Act (Sec. 1) but the plainti must demonstrate
120 Twombly, supra n. 29, at 565 (fn. 10).
121 Id. at 553; Theatre Enterprises, Inc. v. Paramount Film Distributing Corp., 346 U.S. 537, 540–41 (1954).
122 Twombly, supra n. 29, at 556.
123 Id. at 559.
124 Supra n. 30, at 45–46.
125 In re Elevator Antitrust Litigation, 502 F.3d 47, 50 (2d Cir. 2007); In re Air Cargo Shipping Services Antitrust
Litigation, 2008 U.S. Dist. LEXIS 107882, at *79 (E.D.N.Y. Sep. 26, 2008); In re Graphics Processing Units
Antitrust Litigation, 527 F. Supp. 2d 1011, 1023–25 (N.D. Cal. 2007).
126 129 S. Ct. 1937, 1949 (2009).
BRICS LAW JOURNAL Volume II (2015) Issue 1 144
enough factual matter to suggest plausible grounds to infer an agreement; otherwise
the allegation that defendants entered into an agreement is not sucient to meet
the pleading standard. The direct allegation of an agreement must include specic
dates, places and persons involved127 and a defendant’s activities.128 Therefore,
plaintis have to postulate specic allegations, not just allegations that anyone
could postulate without knowing any facts of the alleged agreement whatsoever.129
This attitude to discovery reminds the idea of UK Consultations on Private Actions in
Competition Law to protect from disclosure only documents which would not have
been created if the company had not been seeking leniency130 and could be used
as guidance for disclosure of leniency materials instead of totally hiding them from
plaintis especially in view of the intensive courts’ role in disclosure of evidence in
European traditions.
Consequently, although priority of public enforcement resulted in prohibition of
disclosure of all leniency materials in the EU, this prohibition is nearly meaningless
since plaintis can seek discovery under the US law, and, as US case law indicates,
interests of plaintis and defendants can be balanced by setting clear criteria
for courts rather than by abs olute e xclusion of le niency documentat ion fro m
disclosure. Furthermore, as the degree of discovery development in the US allows
representatives of European plaintis to ll the gaps of European disclosure, the
next chapter seeks to explain how European plaintis as plaintis can exercise their
rights if EU disclosure does not facilitate their actions for damages.
4. Solutions for International Legal Practitioners
Nowadays plaintis from around the world have vigorously begun to use the
opportunities provided by the US discovery system to supplement for the lack of
transparent and ecient disclosure rules in Europe. To date, only a quarter of Europe’s
antitrust infringement decisions led to claimants suing for compensation131 although
almost all of them have been so-called ‘follow-on’ actions, i.e. actions that were only
started following on from the announcement that a public enforcement investigation
had been initiated.132 Only a very limited number of stand-alone claims before the
127 In re LTL Shipping Services Antitrust Litigation, 2009 U.S. Dist. LEXIS 14276, at **45–48 (N.D. Ga. Jan. 28,
2009).
128 In re Elevator, supra n. 125, at 50–51.
129 Id. at 50–52; In re Air Cargo Shipping, supra n. 125, at *81.
130 Supra n. 96, para. 7.6.
131 Alex Barker, Hurdles to Cartel Damages Suits Lifted by Brussels, Financial Times (Jun. 11, 2013),
www.ft.com/cms/s/0/46435c38-d28a-11e2-aac2-00144feab7de.html#axzz2zbf3X3jo> (accessed
Aug. 21, 2015).
132 Louis, supra n. 82, at 13.
NATALYA MOSUNOVA 145
High Court in the UK have been reported.133 Follow-on actions are hardly conductive
to the deterrence of cartels and depend on the success of public enforcement even if
they start following just the announcement that a public enforcement investigation
had been initiated and not based on a leniency application. In addition, experts and
litigators conrm that, access to evidence pursuant to a court order is hardly possible
is civil law countries despite existence of procedural rules in national legislation.134
Thus, ironically, the imperfect disclosure in the European Union motivates plaintis
to seek alternatives in other jurisdictions.
4.1. Discovery in the US for Private Actions in Other Countries
Paradoxically, plaintis from the EU have more chances to discover information
in civil litigations against cartels in the US, than in the EU. Section 1782(a) of Tit. 28
of the U.S.C. provides European antitrust litigants with a traditional but eective tool
for discovery in foreign private antitrust litigation. Although this right for discovery
cannot be automatically executed and a US district court must grant permission to
conduct discovery under § 1782, private antitrust litigants in foreign proceedings
in the US can take full advantage of the comparatively liberal discovery rules in
the US under certain conditions. Pursuant to § 1782(a), the discovery covers the
production of documents, electronic discovery, other tangible evidence, as well
as sworn deposition testimony of witnesses.135 The process of discovery under
§ 1782(a) of the U.S.C. is transparent: the court has to apply a two-step test.136 The rst
step examines mandatory factors to determine whether certain elements required on
the face of the statute have been satised, the second one – additional discretionary
factors for exercising the courts’ discretion to permit § 1782 discovery.137
All four mandatory factors are explicitly established in § 1782(a). First, a request
must be made ‘by a foreign or international tribunal’ or by ‘any interested person,’
including a par ty to the foreign proceeding, a foreign sovereign, or a designated
agent of a foreign sovereign or any other person possessing reasonable interest
in obtaining judicial assistance. Second, a request must seek evidence in the form
of the testimony or statement of a person or the production of documents or
other thing. Requests for evidence in the form of depositions and / or document
requests are the most common in the US antitrust practice.138 Third, the aim of
discovery must be exactly ‘for use in a proceeding in a foreign or international
133 Israel et al., supra n. 7.
134 Ashurst Report, supra n. 11, at 61.
135 Jungermann & Mazur, supra n. 41.
136 Intel, supra n. 101.
137 Id. at 264–65.
138 Jungermann & Mazur, supra n. 41.
BRICS LAW JOURNAL Volume II (2015) Issue 1 146
tribunal, including criminal investigations conducted before formal accusation.’
Courts and intergovernmental arbitral bodies are the relevant examples of ‘foreign
or international tribunal’ because under the US Supreme Court ’s decision in Intel,
the relevant inquiry is whether the foreign body acts as a rst-instance decision
maker, rendering a dispositive ruling responsive to a complaint and reviewable in
court.139 Fourth, the interested person must ‘reside’ or just be ‘found’ in the district
of the US district court in which the application for § 1782 discovery is brought.
Consequently, even physical presence in a US district where an applicant submits
a request is enough to meet this condition.
Although the US district court is not obliged to permit § 1782 discovery even when
all mandatory factors are conrmed, its discretion is rather predictable because four
guiding factors are set by the Supreme Court in the 2004 Intel decision. First, it is the
inaccessibility of the documents or testimony within the foreign tribunal’s jurisdiction.140
For example, ‘when the person from whom discovery is sought is a participant in the
foreign proceeding . . . the need for § 1782(a) aid generally is not as apparent as it
ordinarily is when evidence is sought from a nonparticipant in the matter arising
abroad.’141 Second, ‘the nature of the foreign tribunal, the character of the proceedings
underway abroad, and the receptivity of the foreign government or the court or agency
abroad to US federal-court judicial assistance’142 is taken into account. Third, the US courts
consider whether the § 1782 application ‘conceals an attempt to circumvent foreign
proof gathering restrictions or other policies of a foreign country or the United States’143
and, nally, whether it contains ‘unduly intrusive or burdensome requests.’144 The district
court may deny the § 1782 application because of undue burden when ‘suspects that
the discovery is being sought for the purposes of harassment’145 or limit the scope of the
discovery. Therefore, a district court’s discretion is transparent in accordance with § 1782
which sets that ‘[d]istrict courts must exercise their discretion under § 1782 in light of
the twin aims of the statute: “providing ecient means of assistance to participants
in international litigation in [US] federal courts and encouraging foreign countries by
example to provide similar means of assistance to [US] courts . . .”’146
139 Intel, supra n. 101, at 257–58.
140 Id. at 264.
141 Schmitz v. Bernstein, Liebhard & Lifshitz, LLP, 376 F.3d 79, 85 (2d Cir. 2004).
142 Intel, supra n. 101, at 264.
143 Id. at 265.
144 Id.
145 Brandi-Dohrn v. IKB Deutsche Industriebank AG, 673 F.3d 76, 81 (2d Cir. 2012).
146 Metallgesellschaft AG v. Siegfried HODAPP, 121 F.3d 77, 79 (2d Cir. 1997) (quoting Malev Hungarian
Airlines v. United Technologies International Inc., Pratt & Whitney Commercial Engine Business, 964 F.2d
97, 100).
NATALYA MOSUNOVA 147
Other statements of US courts conrm exibility and eciency of § 1782 rules for
European plaintis. For example, there is no ‘foreign-discoverability’ requirement147
under § 1782, i.e. it does not matter whether evidence sought in the US under § 1782
is discoverable or undiscoverable under the laws of the foreign country where the
underlying action will be considered because ‘a district court could condition relief
upon that person’s reciprocal exchange of information’ and ‘the foreign tr ibunal
can place conditions on its acceptance of the information to maintain whatever
measure of parity it concludes is appropriate.’148 Also there is no requirement that
the foreign proceeding be ‘ending’ or ‘imminent,’ it should be only ‘within reasonable
contemplation.’ Whilst some US courts take into account the actions an applicant has
taken in the foreign jurisdiction to obtain the discovery, generally § 1782 discovery
cannot be refused if a foreign tribunal has not yet considered the discovery request.
Moreover, the scope of discovery that foreign litigants may seek in the US under
§ 1782 has been expanded in a recent decision of the US Court of Appeals for the
Second Circuit, which held that a district court may issue a subpoena under § 1782,
even if the evidence sought would not be admissible in the foreign proceeding
because there was no statutory basis for any admissibility requirement.149
A plainti can obtain evidence from subsidiaries all over the world if a parent
company is incorporated in the US or can be found in the distric t of the US cour t
in which the § 1782 application is made.150 Therefore, discovery obligations can be
imposed on US entities in response to requests from foreign litigants even if evidence
in question is located abroad the US so long as evidence is within the possession,
custody, or control of a person located in the US.
Interestingly, German courts and German litigants are amongst the most frequent
users of § 1782: there are at least 28 US judicial decisions in German-related matters
involving applications under § 1782.151 One of the reasons for high demand for
discovery among German plaintis is that documents may be requested in any
format including category of documents or communications concerning ‘bases
or rationales.’152 Access to testimony of executives and corporate representatives
147 Intel, supra n. 101, at 262.
148 Id.
149 Brandi-Dohrn, supra n. 145.
150 Lawrence S. Schaner & Brian S. Scarbrough, Obtaining Discovery in the USA for Use in German Legal
Proceedings. A Powerful Tool: 28 U.S.C. § 1782, 2012(4) Anwaltsblatt (AnwBl) 324, available at
jenner.com/system/assets/publications/9165/original/AnwBl_2012_320.pdf?1334951861> (accessed
Aug. 21, 2015) (citing: In re Iwasaki Electric Co., No. M19-82, 2005 WL 1251787, at **2–3 (S.D.N.Y. May 26,
2005) ; In re Application of Gemeinschaftspraxis Dr. Med Schottdorf, No. Civ. M19-88 (BSJ), 2006 WL
3844464 (S.D.N.Y. Dec. 29, 2006); Minatec Finance S.A.R.L. v. SI Group Inc., No. 1:08-CV-269 (LEK/RFT),
2008 WL 3884374, at *4 (fn. 8) (N.D.N.Y. Aug.18, 2008); In re Application of Schmitz, 259 F. Supp. 2d
294 (S.D.N.Y. 2003); Schmitz, supra n. 141, at 85 (fn. 6)).
151 Schaner & Scarbrough, supra n. 150, at 322.
152 In re Application of Gemeinschaftspraxis Dr. Med Schottdorf, supra n. 150, at *3 (fn. 9).
BRICS LAW JOURNAL Volume II (2015) Issue 1 148
through depositions, which also can be obtained under § 1782,153 contributes to
proof in cartel litigations.
Though courts tend to limit discovery rather than deny it completely, discovery
under § 1782 is not endless. Except the cases where the requirements for mandatory
and discretion factors are not met, courts can deny § 1782 discovery if such discovery
can jeopardize another State’s sovereign rights and circumvent criminal procedure,154
where the discovery violated the Fed. R. Civ. P., for example, the applicant sought
privileged and / or condential information155 or the discovery requests were vague and
overbroad,156 duplicative, vexatious, or unreasonably cumulative157 or irrelevant.158
The application procedure is quite simple: an interested person has to submit an
application in the US distric t court for the district wherein the person from whom
discovery is sought resides or can be found.159 A typical application consists of:
(i) an application with some background to the foreign proceeding and justication
for the need for the discovery including explanation of how the mandatory
statutory elements and the discretionary factors are met; (ii) a supporting adavit
or declaration from a person who is familiar with the foreign proceeding, including
counsel of applicant; (iii) a draft of the proposed discovery; and (iv) a proposed
order that the district court can sign granting discovery.160 Prior notice to the person
from whom discovery is sought or the adverse party before the foreign tribunal is
not required but the person from whom discovery is sought can object and seek
US court redress.
To summarize, the design of § 1782 allows a plainti to request evidence in the
US for the cartel private enforcement in the European Union if evidence to prove
damage by anticompetitive behaviour or causality between the infringement
and the damage are located in the US or a person or a company that are able to
provide testimony, documents, or electronic evidence can be found in the US and
153 Minatec, supra n. 150; Cryolife, Inc. v. Tenaxis Medical, Inc., No. C08-05124 HRL, 2009 WL 88348 (N.D.
Cal. Jan. 13, 2009).
154 Schmitz, supra n. 141; In re Application of Schmitz, supra n. 150.
155 Schaner & Scarbrough, supra n. 150, at 323 (citing: In re Heraeus Kulzer GmbH, No. 09-MC-00017, 2009
WL 2981921 (E.D. Pa. Sep. 11, 2009) (no showing of substantial need for condential information);
In re Application of Heraeus Kulzer, No. 09-CV-183 RM, 2009 WL 2058718 (N.D. Ind. Jul. 9, 2009); In re
Letters Rogatory from 9th Criminal Division, Regional Court, Mannheim, Federal Republic of Germany,
448 F. Supp. 786 (S.D. Fla. 1978)).
156 In re Application of Heraeus Kulzer, supra n. 155, at **2–3.
157 Bayer AG v. Betachem, Inc., 173 F.3d 188 (3d Cir 1999).
158 Schaner & Scarbrough, supra n. 150, at 323 (citing Kang v. Noro-Moseley Partners, No. 07-10310, 2007
WL 2478579 (11th Cir. Sep. 4, 2007)).
159 Id. at 321.
160 Id.
NATALYA MOSUNOVA 149
applications meet the set of mandatory and discretional facts. Recent judgements
of the US courts can boost application of § 1782 in foreign antitrust actions. For
example, even the strictest rules of disclosure in Germany do not create any obstacle
for courts to accept evidence obtained pursuant to § 1782 and in some cases German
lawyers prefer to apply for discovery in the US instead of home jurisdiction.161
4.2. The ‘Forum of Choice’ for Cartel Private Actions
The choice of jurisdiction for ling claims for damages for breach of competition
law also simplies disclosure of evidence and, consequently, enhances chances to
win. The UK is reported to remain the ‘forum of choice’ for pr ivate actions due to
generous disclosure rules and the courts’ rapidly growing experience in considering
the complex economic, legal and procedural issues.162 The recent developments and
practice in antitrust litigation in England and Wales become increasingly interesting
by the use of ‘anchor defendants’ and the disclosure of leniency materials in the
context of follow-on cartel damages claims. Establishment of the Competition
Appeal Tribunal (CAT) where private antitrust damages actions can be brought on
a par with the High Court163 also signicantly strengthen the attractiveness of the
UK courts in antitrust disputes.164
The English court’s jurisdiction to hear an antitrust damages claim is determined
by the Brussels Regulation.165 Pursuant to Art. 6(1) in relation to claims involving
multiple defendants in a number of EU Member States, claimants can bring a claim
in the courts of the Member State where any one of the defendants is domiciled if
the claims are ‘so closely connected that it is expedient to hear and determine them
together to avoid the risk of irreconcilable judgments.’ In tort claims (which include
antitrust claims), a defendant domiciled in an EU Member State can be sued in the
courts of ‘the place where the harmful event occurred.’166 Therefore, the jurisdiction
of the UK courts is established if a defendant domiciled in the UK.
Furthermore, the UK courts accept jurisdiction against defendants domiciled in
other EU Member States if claimants have used UK-domiciled subsidiaries as ‘anchor
defendants’ (which may not have been subject to the EC infringement decision)
rather than their foreign parent companies to which the infringement decision had
161 Schaner & Scarbrough, supra n. 150, at 323.
162 EU Parliament Backs Cartel Evidence Release Proposals But Leniency Corporate Statements to Remain
Condential, supra n. 60.
163 Competition Act, 1998, c. 41 (Eng.), Chs. I and II.
164 Israel et al., supra n. 7.
165 Council Regulation (EC) No. 44/2001 of 22 December 2000 on the Recognition and Enforcement of
Judgments in Civil and Commercial Matters, 2001 O.J. (L 12) 1, at
content/EN/TXT/PDF/?uri=CELEX:32001R0044&from=EN> (accessed Aug. 21, 2015).
166 Id. Art. 5(3).
BRICS LAW JOURNAL Volume II (2015) Issue 1 150
been addressed.167 For example, in Provimi168 the High Court accepted jurisdiction to
hear an EU-wide cartel claim brought against the UK subsidiaries of foreign parent
companies, notwithstanding that, unlike their foreign parents, the UK subsidiaries
were not addressees of the EC’s infringement decision because ‘the legal entities
that are part of the one undertaking . . . have no independence of mind or action
or will,’ so ‘[t]here is no question of having to “impute” the knowledge or will of one
entity to another, because they are one and the same.’169 Later this conclusion has
been repeated in Cooper Tire170 in which the claimants (tyre manufacturers who had
bought synthetic rubber in Europe) sought to establish jurisdiction through three UK
anchor defendants (subsidiaries of foreign companies who were addressees of the
EC’s decision) on the basis that they had implemented the cartel by selling products
at cartel prices. In 2011, the High Court in Toshiba Carrier conrmed that the claims
against the UK anchor defendants were properly constituted (with ‘knowledge’ of
the cartel on the part of the UK-domiciled defendants, on the same basis as Cooper
Tire).171 Therefore, claimant-friendly approach to establishing jurisdiction taken by the
High Court motivates plaintis to bring their private antitrust claims in the UK.172
Practically, availability of evidence and choice of jurisdiction are inseparably linked.
The US courts are often chosen by European plaintis due to widely used eective
doctrine, which means that any State may impose liabilities for conduct outside its
borders if consequences of an act are within its borders: Sherman Act 1890 can be
applied to conduct involving trade with foreign nations if such conduct has a direct,
substantial and foreseeable eect on trade or commerce in the US.173 For instance,
Nokia stand-alone action against LCD cartel in the US174 has been settled in the US
because there was no government action specic to Nokia purchases and plaintis
had to prove their case themselves; in the US they immediately got access to millions
of pages of documents. In that case, discovery determined the result of litigation.175
Thus, while the European disclosure does not contribute to the development
of cartel private enforcement, in some cases the European plaintis have a chance
to exercise their right for compensation for damages, if they turn their gaze upon
167 Israel et al., supra n. 7.
168 Provimi Ltd. v. Aventis Animal Nutrition SA & Ors., [2003] EWHC 961 (Comm.).
169 Id. para. 31.
170 Cooper Tire & Rubber Co. Europe Ltd. & Ors. v. Dow Deutschland, Inc. & Ors., [2010] EWCA Civ. 864.
171 Toshiba Carrier UK Ltd. & Ors. v. KME Yorkshire Ltd. & Ors., [2011] EWHC 2665 (Ch.), para. 45.
172 Israel et al., supra n. 7.
173 Sherman Act, 15 U.S.C. §§ 1–7 (1890), Sec. 6a, at
Aug. 21, 2015).
174 Nokia Corp. et al. v. AU Optronics Corp. et al., No. 3:09-cv-05609 (N.D. Cal.).
175 E-mail from Valarie Williams to Natalya Mosunova (Aug. 5, 2014).
NATALYA MOSUNOVA 151
other jurisdictions. First, the evidence may be requested through the use of § 1728
U.S.C. in the US. Second, plaintis can choose the friendliest jurisdiction in the case of
litigation against cartels which have aected the economy of several states. However,
practically these eective and proven facilities are available only to a limited number
of plaintis who have corporate budgets for the high fees of international law rms.
Consequently, information asymmetry, i.e. inability to obtain evidence to protect
victims’ interests, is preserved for individuals and small businesses. The Conclusion
will present possible measures to promote the availability of evidence after analysis
of ndings of the study.
5. Conclusion
The research shows that disclosure of evidence in the EU is inecient and does
not facilitate cartel private enforcement, but the US discovery cannot be directly
transferred to the European jurisdictions and that the follow-on actions are the only
eective tool to promote cartel private enforcement in the EU.
In spite of all eorts carried out in the last decade, the Directive176 provides a very
strict regime of disclosure when plaintis eectively will not only have to get court
approval for gathering documents from defendants, but also specify documents
very precisely and prove that this evidence is relevant and necessary in the litigation.
Therefore, these rules are unlikely to protect consumers’ interests and, in fact, they
suppress any attempts to sue for damages. Considering the obvious superiority of
cartels’ forces over victims’ resources, it is little wonder that the vast majority of European
plaintis give up attempts to obtain compensation for damages at this stage.
The ndings of the second research question regarding potential operability of the
US discovery in the EU demonstrate inapplicability of the US rules in the EU regardless
of their eectiveness for cartel private enforcement in the US. Indeed, the remaining
weaknesses of disclosure in cartel cases are not a consequence of the Directive. The
main obstacle to making disclosure rules in the EU more victim-friendly and access to
evidence easier is that the majority of the Members States employ civil law systems.
The fundamental dierences between civil law and common law families would entail
highest costs of borrowing of the US discovery rules for the EU.
Facilitating follow-on actions could neutralize the pitfalls of disclosure in the EU.
Consequently, eorts of competition authorities in the EU to promote the private
cartel enforcement could be shifted more to follow-on actions than to stand-
alone actions because the dependence of parties on the court’s discretion without
transparent criteria, the parties’ obligation to provide a lot of evidence at the very
early stage and paradoxical demands to indicate the exact type of documents
out of their possession make stand-alone actions in the EU hardly possible. This
176 Supra n. 54.
BRICS LAW JOURNAL Volume II (2015) Issue 1 152
approach would be reinforced by the European competition law priorities which are
designed to provide single market integration rather than to compensate consumers’
damages.
The ambiguous attitude to disclosure of leniency materials could be claried
for promotion of follow-on action in Europe too. The ideas set forth in Peiderer to
delegate to the national courts the decision on whether or not leniency documents
are subject to disclosure have not been used in Member States and have been
rejected in the Directive. The leniency programme of the EU, considering weakness of
private enforcement, remains the main tool to detect and deter cartels in Europe and
in this context the condence of whistleblowers is worth protecting. However strict
and uncompromising, European restrictions on disclosure of leniency documents
become illusory because the design of the US disclosure rules and priority of
consumers’ rights eectively allow victims from the EU to sue in the US and obtain
all necessary documents in the US proceeding when it is impossible in the courts
of the EU Member States.
That is why convergence of the US and EU positions on disclosure of leniency
materials could bring more certainty both to plaintis and defendants in car tel
litigations and, consequently, facilitate the development of the European cartel
private enforcement in terms of follow-on actions. In this regard, the ndings
in National Grid177 provide transparent criteria for leniency material disclosure:
unavailability of information from other sources and relevance to the issue in
question. A more detailed test for discoverability follows from the Twombly178
decision that a request to disclose must contain specic allegation of facts rather
than assumptions. Well-articulated principles of disclosure of leniency materials
would prevent ‘shing expeditions’ and increase the number of compensated victims
in follow-on actions. Therefore, interrelation between the two main remedies for
detecting and deterring cartels – disclosure of evidence and leniency programme –
provide the basis for further research.
Nowadays, the proposed solutions are rather practical. Victims of cartels can
seek protection of their rights in other jurisdictions either by obtaining evidence in
the United States for use in the European courts,179 or by their choice of jurisdiction
for their actions. Despite some concerns on protection of condentiality, the case
law and statistics on the number of European applicants in the US courts show the
attractiveness and safety of discovery in the US.
177 Supra n. 89.
178 Supra n. 29.
179 28 U.S.C. § 1782(a) (2000).
NATALYA MOSUNOVA 153
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Information about the author
Natalya Mosunova (Moscow, Russia) – Head of Legal Department, Adecco Group
Russia (2/3 Paveletskaya sq., Moscow, 115054, Russia; e-mail: natalia.mosunova@
adecco.com).
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