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Intel Corp. and Advanced Micro Devices Inc. (AMD) are major high-tech competitors. And they are on opposite sides in a corporate battle over the power of federal courts to grant discovery of materials sought in disputes before foreign tribunals. But in an unusual development, both adversaries — along with the Bush administration — now agree that the Supreme Court should resolve their dispute. In briefs before the Court in Intel Corp. v. Advanced Micro Devices Inc., all three players are asking that the justices grant review, making it likely that the Court will do so at its private conference Friday. The Court’s action on the case could be announced Nov. 10. The Court will be considering dozens of other cases at the Nov. 7 conference and at another on Nov. 14. Normally the respondent — in this instance, AMD — would oppose review, in hopes of preserving the lower court ruling. In this case, the 9th U.S. Circuit Court of Appeals had sided with AMD in its discovery request in connection with an antitrust complaint it made against Intel before the European Commission five years ago. When the EC announced it would conduct a “preliminary investigation,” AMD went to the U.S. District Court for the Northern District of California two years ago, asking a judge to order Intel to produce documents it had already released in connection with another lawsuit. Under federal law, district courts are authorized to grant discovery for use “in a proceeding in a foreign or international tribunal,” including criminal investigations. Intel objected, asserting that the EC’s preliminary inquiry was not a “proceeding.” The District Court agreed, but, on appeal, the 9th Circuit sided with AMD, giving a broad reading to the discovery law. In a June 2002 ruling by Judge Michael Daly Hawkins, Intel was ordered to produce the materials. Hawkins found that the EC inquiry fits the definition of a “proceeding before a tribunal” because it could lead to “quasi-judicial proceedings.” On a related issue in the case, the court also ruled that it was irrelevant whether the documents sought in U.S. courts could be discovered in the foreign proceeding itself. Intel appealed to the Supreme Court, arguing that the 9th Circuit decision runs counter to other circuits and to public policy. “The court’s holding invites an onslaught of pre-litigation discovery requests from persons involved in countless foreign administrative matters,” wrote Intel’s lawyer Seth Waxman of Wilmer, Cutler & Pickering. “This court’s intervention is needed both to protect U.S. interests and courts from these unfair discovery burdens.” The U.S. Chamber of Commerce and the National Association of Manufacturers filed amicus briefs also asking for high court review. The Chamber, which rarely files in cases in which one company is suing another, told the Court, “The circumvention of foreign discovery rules can place U.S.-based companies at a competitive disadvantage by allowing their rivals to make extensive inquiries into their internal policies, strategies and plans without allowing them a similar right of discovery.” The Chamber’s brief is by Roy Englert Jr. of Washington, D.C.’s Robbins, Russell, Englert, Orseck & Untereiner. The EC also filed a brief urging review, stating that, in the antitrust area, it is an enforcement agency, not a tribunal that adjudicates disputes between parties. The EC’s brief, filed by Jonathan Abram of D.C.’s Hogan & Hartson, also notes that the materials AMD sought were not necessary to its inquiry. The turning point in the case came when the solicitor general’s brief was filed, also seeking high court review even though it agreed with most of the 9th Circuit’s holdings. The brief also asserted that district courts retain the discretion to turn down discovery requests if they believe the material was not discoverable in the foreign tribunal itself. After seeing the solicitor general’s brief, AMD’s lawyer, Patrick Lynch of O’Melveny & Myers in Los Angeles, determined that “it would only prolong the agony” to continue to oppose review. Lynch explained that by raising the discretion issue, the solicitor general guaranteed that even if the high court denied review, the discovery issue would return to the District Court for a lengthy proceeding to decide if the material was in fact discoverable. “I am primarily concerned with trying to present a clear case to the EC,” and lengthy further proceedings in U.S. courts might make the EC inquiry moot. As a result, AMD filed a supplemental brief with the Court withdrawing its opposition to review. Waxman also filed another brief after the solicitor general acted, emphasizing to the Court that “Sovereigns on both sides of the Atlantic have now urged the Court to review the recurring issues presented here.” OTHER CASES UP FOR REVIEW Nov. 7:Andrews v. United States, No. 03-136. Whether a federal judge can require a defendant to serve a consecutive sentence with another sentence that has yet to be imposed. � Dodge v. Cotter Corp., No. 03-332. De novo review of Daubert procedures in case involving environmental contamination caused by uranium mine in Colorado. Nov. 14:Roadway Express v. Fiske, No. 02-1416. Whether the full faith and credit clause requires Maryland to recognize Delaware’s order for workers’ compensation benefits. � Pennsylvania State Police v. Suders, No. 03-95. Defenses available to an employer when a hostile work environment culminates in constructive discharge and a sexual harassment action under Title VII. � Old Person v. Brown, No. 03-253. Whether Montana’s redistricting plan violated the Voting Rights Act by diluting voting power of Native Americans. � Koons Buick Pontiac GMC v. Nigh, No. 03-377. Application of statutory damages cap of $1,000 under the Truth and Lending Act. � Parker v. Ohio, No. 03-411. Whether an Ohio redistricting plan dilutes minority voting power. “Conference Call” seeks to identify cases on the Supreme Court’s conference agenda that are leading candidates for Supreme Court review. Thomas Goldstein of Washington, D.C.’s Goldstein & Howe selects these cases from the many petitions filed based on several factors, including whether lower courts have split on the issues presented. He does not otherwise participate in the preparation of this column. Goldstein is a lawyer for the appellant in Andrews v. United States, No. 03-136.

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