ADDITIONAL INDEX NUMBERS16-MD-2704OPINION & ORDERRESOLVING DISCOVERY DISPUTE The Court has reviewed the parties’ competing letters regarding the request by defendant Goldman Sachs (“GS”)1 to claw back a July 1, 2013 email attaching the Statement of Objections (“SO”) sent by the European Commission (“EC”) to GS and other dealers during an investigation of credit default swaps (“CDS”). These are: plaintiffs’ letter of November 5, 2018 disputing GS’s right to claw back these materials, Dkt. 6102; and GS’s letter of November 8, 2018, defending the clawback, Dkt. 614 (“Defs. Ltr.”). The Court has also received, from GS, the declaration of Jonas Koponen of Linklaters LLP. Koponen, an EU advocate, represented GS in connection with the now-closed CDS investigation. Defs. Ltr. Ex. 1 3 (“Koponen Decl.”).Under the clawback provisions of the protective order in this litigation, a party seeking to claw back inadvertently produced materials must demonstrate that the materials were “protected from disclosure under…any [] applicable United States or foreign law, regulation, privilege, or immunity from disclosure.” Dkt. 300, Protective Order §§2.6, 12.3.The issue presented is whether GS’s claw back-which was occasioned by plaintiffs’ having quoted the SO in their proposed Fourth Amended Complaint (“FAC”)-is proper. The Court finds that it is.By way of background, as Koponen explains, the SO was not a finding by the EU. Instead, it documented a formal step in an antitrust investigation. In that step, the EC informed the parties to an investigation of the bases for its preliminary view that there had been a violation of the Treaty on the Functioning of the European Union (“TFEU”). See Koponen Decl.
6-8.As such, the SO was, at the time it issued, undisputedly confidential, such that recipients like GS were barred from disclosing it in U.S. civil litigation. Articles 15 and 16a of Commission Regulation 773/2004, Koponen Decl. Ex. B (Commission Regulation (EC) No. 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 and 82 of the EC Treaty (as amended), 2004 O.J. (L 123) 18), specifically prohibited a recipient like GS from using the SO for purposes other than judicial or administrative proceedings for the application of Articles 101 and 102 of the TFEU. These prohibit, under EU law, anti-competitive agreements and abuse of a dominant position. And communications particular to the SO by the Director General for Competition (“DG COMP”) at the time of its issuance underscored that this prohibition applied to the SO specifically. See Koponen Decl.
