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Georgene M. Vairo

During the past few years, the U.S. Supreme Court has shown its interest in both nuts and bolts and thorny problems bearing on forum selection. This term will be no different. This column focuses on one case with an international flavor in which the Supreme Court granted certiorari. As many federal practitioners know, the world is shrinking day by day. Domestic business concerns are increasingly dealing with foreign concerns. Federal litigation today can involve a ‘foreign twist’ Moreover, especially since the events of Sept. 11, 2001, the degree to which litigation in U.S. courts may impair efforts at improving international cooperation has become increasingly important. Hence, litigation, particularly federal litigation, today often involves a foreign twist, and vice versa. So, for example, in Intel Corp. v. Advanced Micro Devices Inc., 292 F.3d 664 (9th Cir. 2002), the 9th U.S. Circuit Court of Appeals dealt with the problem of the scope of discovery in the United States by persons involved in proceedings before a foreign tribunal. In Intel Corp., the 9th Circuit dealt with a case of first impression. It determined the scope and reach, with respect to the European Union, of a statute, 28 U.S.C. 1782, which permits domestic discovery for use in foreign proceedings. The court dealt with two issues: first, the issue of what constitutes a “foreign or international tribunal” for the purposes of the statute; and second, whether � 1782 requires a threshold showing that the information sought would be discoverable or admissible in the proceeding. The case involved a suit between Intel Corp. and Advanced Micro Devices (AMD) that arose in a European context. Intel and AMD are worldwide competitors in the microprocessor industry. AMD filed a complaint with the Directorate-General for Competition of the European Commission (E.C.) claiming that Intel was abusing its dominant market position in the European common market in violation of Article 82 of the treaty establishing the E.C. To support its complaint, AMD sought discovery under � 1782, asking that Intel produce documents and transcripts of testimony from a different case in the U.S. District Court for the District of Alabama in which Intel was a defendant. Intel objected, contending that the matter before the directorate was not a “proceeding in a foreign or international tribunal” within the meaning of � 1782. The district court agreed with Intel, and the 9th Circuit reversed. The 9th Circuit reviewed the process under the treaty, noting that the preliminary investigations, although administrative in nature, lead to a decision by the E.C. as to whether to proceed, a decision that is then subject to judicial review. It then noted that when Congress enacted � 1782, it intended that the word “tribunal” be broadly construed to include proceedings that were not purely judicial. The 9th Circuit rejected Intel’s argument that the process for which AMD seeks discovery was purely administrative in nature. Rather, because the administrative proceeding for which discovery is sought is, at minimum, one leading to quasi-judicial proceedings, the “tribunal” aspect of � 1782 was satisfied. Additionally, the 9th Circuit rejected Intel’s imminence argument. The judicial aspect of the proceeding need not be pending. Rather, so long as the administrative aspect is subject to judicial review or a judicial proceeding, congressional intent is satisfied. It also rejected Intel’s “separation of powers” challenge. Intel argued that the E.C. is not a tribunal because the distinction between prosecutor and decision-maker is blurred, if not nonexistent. Noting that this may be of concern if the E.C. had a discernible institutional bias toward a particular outcome of the initial investigative process, the 9th Circuit found that the E.C. process permits both complainant and alleged infringer an opportunity for input to the eventual recommendation and inserts an independent entity-the E.C. Advisory Committee-between the directorate’s recommendation that a formal complaint be issued and the E.C.’s decision to file a final enforceable decision. Although preliminary, the process pursuant to which AMD sought discovery qualifies as a “proceeding before a tribunal” within the meaning of � 1782. The court then turned to the second question. Because the court’s decision with respect to the tribunal issue would require a remand, and a decision by the district court to resolve the merits of AMD’s discovery request, the 9th Circuit ruled on Intel’s argument that a threshold requirement-that the discovery sought could be obtained from the foreign tribunal-be imposed on AMD. The 9th Circuit noted that the courts of appeals have split on the threshold question, and that there has been considerable academic commentary on the issue. Relying on decisions out of the 1st and 11th circuits, Intel argued for a threshold showing that AMD could obtain the discovery it now seeks in the E.C. proceedings. See In re Application of Asta Medica, 981 F.2d 1, 5-7 (1st Cir. 1992); In re Request for Assistance from Ministry of Legal Affairs of Trinidad and Tobago, 848 F.2d 1151, 1156 (11th Cir. 1988). The 2d and 3d circuits don’t impose a threshold On the other hand, the 2d and 3d circuits refuse to impose such a requirement. See In re Application of Malev Hungarian Airlines, 964 F.2d 97, 101-02 (2d Cir. 1992); Euromepa S.A. v. R. Esmerian Inc., 154 F.3d 24, 28 (2d Cir. 1998); In re Bayer A.G., 146 F.3d 188, 193 (3d Cir. 1998). The 4th and 5th circuits distinguish between a request from a foreign tribunal and one from a private party, not imposing a threshold discoverability requirement on the former. See In re Letter of Request from Amtsgericht Ingolstadt, Fed. Republic of Germany, 82 F.3d 590, 592-93 (4th Cir. 1996); In re Letter Rogatory From First Court of First Instance in Civil Matters, Caracas, Venezuela, 42 F.3d 308, 310-11 (5th Cir. 1995). Most academic commentators, according to the court, prefer the 2d Circuit’s Euromepa approach of refusing to impose a threshold. The court noted that it had previously rejected a requirement regarding admissibility in the foreign tribunal. In re Request for Judicial Assistance from Seoul Dist. Criminal Court, 555 F.2d 720, 723 (9th Cir. 1997). It then decided to adopt the 2d Circuit’s approach. It found that there was nothing in the plain language or legislative history of � 1782, including its 1964 and 1996 amendments, to require a threshold showing on the party seeking discovery that what is sought be discoverable in the foreign proceeding. Additionally, the court found that allowing liberal discovery seemed to be consistent with its view of the purpose of � 1782: i.e., “providing efficient assistance to participants in international litigation and encouraging foreign countries by example to provide similar assistance to our courts.” So what is the Supreme Court likely to do? It is part of our perceived wisdom that the Supreme Court is averse to the 9th Circuit. That would not bode well for AMD. Additionally, while I, as a law professor, was happy to see that the 9th Circuit noted the support of academic commentators for its positions, the Supreme Court is also known for being somewhat skeptical of academics. With respect to this case, however, I think the reality of the court’s recent experience with the 9th Circuit-it is not true that court always reverses the 9th Circuit, but rather is increasingly in agreement with it-suggests that it will affirm the 9th Circuit and put to rest the circuit split. The high court-erroneously in the view of some-appears to be increasingly in tune with judicial developments throughout the world. It is thus doubtful that the court would appear to denigrate foreign countries by rejecting their considered structures for resolving disputes by refusing to label such structures as tribunals. The question of thresholds may be a bit trickier-why allow domestic discovery if it would not be permitted in the foreign tribunal? Well, first of all, if the request were on the part of a foreign sovereign-the distinction made by some courts � it would be risky in today’s times for the court to reject the cooperative approach. Does Congress want the courts to be cooperative? Imagine what could happen the next time the United States invokes the foreign country’s judicial processes to obtain information about a suspected terrorist. Again, as the 9th Circuit stated: a goal of � 1782 is to promote international cooperation. It would seem therefore that even in the case of a private party’s discovery request, Congress wants the courts to take the cooperative approach. On the other hand, just as the Federal Rules of Civil Procedure have become more restrictive over the last decades-away from its liberal antecedents-to meet the perception that discovery is out of control and subject to abuse, the court may be tempted to take a more restrictive view. Recall that as early as 1980, Justice Lewis F. Powell Jr. referred to the first wave of meaningful amendments to the discovery rules to tighten them up as “mere tinkering changes.” Nonetheless, the court is not likely to succumb to that temptation. The 9th Circuit’s approach is consistent with the plain meaning of � 1782 as well as Congress’ apparent goals. The court is dealing with a statute here, not the rules the court is charged with adopting. Better for Congress to amend the statute than for the federal courts to take a restrictive view of it. Georgene M. Vairo is a professor of law and William M. Rains Fellow at Loyola Law School, Los Angeles. She can be reached at [email protected].

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