OPINION OF THE COURT
INTEL CORP. V. ADVANCED MICRO DEVICES, INC.
542 U. S. ____ (2004)
SUPREME COURT OF THE UNITED STATES
NO. 02-572
INTEL CORPORATION, PETITIONER
v. ADVANCED
MICRO DEVICES, INC.
on writ of certiorari to the united states court of
appeals for the ninth circuit
[June 21, 2004]
Justice Ginsburg delivered the
opinion of the Court.
This case concerns the authority
of federal district courts to assist in the production of evidence
for use in a foreign or international tribunal. In the matter
before us, respondent Advanced Micro Devices, Inc. (AMD) filed an
antitrust complaint against petitioner Intel Corporation (Intel)
with the Directorate-General for Competition of the Commission of
the European Communities (European Commission or Commission). In
pursuit of that complaint, AMD applied to the United States
District Court for the Northern District of California, invoking 28
U. S. C. §1782(a), for an order requiring Intel to produce
potentially relevant documents. Section 1782(a) provides that a
federal district court “may order” a person “resid[ing]” or “found”
in the district to give testimony or produce documents “for use in
a proceeding in a foreign or international tribunal … upon the
application of any interested person.”
Concluding that §1782(a) did not authorize the
requested discovery, the District Court denied AMD’s application.
The Court of Appeals for the Ninth Circuit reversed that
determination and remanded the case, instructing the District Court
to rule on the merits of AMD’s application. In accord with the
Court of Appeals, we hold that the District Court had authority
under §1782(a) to entertain AMD’s discovery request. The statute,
we rule, does not categorically bar the assistance AMD seeks: (1) A
complainant before the European Commission, such as AMD, qualifies
as an “interested person” within §1782(a)’s compass; (2) the
Commission is a §1782(a) “tribunal” when it acts as a
first-instance decisionmaker; (3) the “proceeding” for which
discovery is sought under §1782(a) must be in reasonable
contemplation, but need not be “pending” or “imminent”; and (4)
§1782(a) contains no threshold requirement that evidence sought
from a federal district court would be discoverable under the law
governing the foreign proceeding. We caution, however, that
§1782(a) authorizes, but does not require, a federal district court
to provide judicial assistance to foreign or international
tribunals or to “interested person[s]” in proceedings abroad.
Whether such assistance is appropriate in this case is a question
yet unresolved. To guide the District Court on remand, we suggest
considerations relevant to the disposition of that question.
I
A
Section 1782 is the product of
congressional efforts, over the span of nearly 150 years, to
provide federal-court assistance in gathering evidence for use in
foreign tribunals. Congress first provided for federal-court aid to
foreign tribunals in 1855; requests for aid took the form of
letters rogatory forwarded through diplomatic channels. See Act of
Mar. 2, 1855, ch. 140, §2, 10 Stat. 630 (circuit court may appoint
“a United States commissioner designated … to make the examination
of witnesses” on receipt of a letter rogatory from a foreign
court); Act of Mar. 3, 1863, ch. 95, §1, 12 Stat. 769 (authorizing
district courts to respond to letters rogatory by compelling
witnesses here to provide testimony for use abroad in “suit[s] for
the recovery of money or property”).[
Footnote 1] In 1948, Congress substantially broadened the
scope of assistance federal courts could provide for foreign
proceedings. That legislation, codified as §1782, eliminated the
prior requirement that the government of a foreign country be a
party or have an interest in the proceeding. The measure allowed
district courts to designate persons to preside at depositions “to
be used in
any civil action pending in any court in a
foreign country with which the United States is at peace.” Act of
June 25, 1948, ch. 646, §1782, 62 Stat. 949 (emphasis added). The
next year, Congress deleted “civil action” from §1782’s text and
inserted “judicial proceeding.” Act of May 24, 1949, ch. 139, §93,
63 Stat. 103. See generally, Jones, International Judicial
Assistance: Procedural Chaos and a Program for Reform, 62 Yale
L. J. 515 (1953).
In 1958, prompted by the growth
of international commerce, Congress created a Commission on
International Rules of Judicial Procedure (Rules Commission) to
“investigate and study existing practices of judicial assistance
and cooperation between the United States and foreign countries
with a view to achieving improvements.” Act of Sept. 2, Pub. L.
85–906, §2, 72 Stat. 1743; S. Rep. No. 2392, 85th Cong., 2d
Sess., p. 3 (1958); Smit, International Litigation under the
United States Code, 65 Colum. L. Rev. 1015–1016 (1965)
(hereinafter Smit, International Litigation). Six years later, in
1964, Congress unanimously adopted legislation recommended by the
Rules Commission;[
Footnote 2]
the legislation included a complete revision of §1782. See Act of
Oct. 3, Pub. L. 88–619, §9, 78 Stat. 997; Smit, International
Litigation 1026–1035.
As recast in 1964, §1782 provided for
assistance in obtaining documentary and other tangible evidence as
well as testimony. Notably, Congress deleted the words “in any
judicial proceeding
pending in any court in a foreign
country,” and replaced them with the phrase “in a proceeding in a
foreign or international tribunal.” Brief for United States as
Amicus Curiae 6, 4a–5a (emphasis added). While the
accompanying Senate Report does not account discretely for the
deletion of the word “pending,”[
Footnote 3] it explains that Congress introduced the word
“tribunal” to ensure that “assistance is not confined to
proceedings before conventional courts,” but extends also to
“administrative and quasi-judicial proceedings.” S. Rep. No.
1580, 88th Cong., 2d Sess., p. 7 (1964); see H. R. Rep.
No. 1052, 88th Cong., 1st Sess., p. 9 (1963) (same). Congress
further amended §1782(a) in 1996 to add, after the reference to
“foreign or international tribunal,” the words “including criminal
investigations conducted before formal accusation.” National
Defense Authorization Act for Fiscal Year 1996, Pub. L. 104–106,
§1342(b), 110 Stat. 486. Section 1782(a)’s current text reads:
“The district court of the
district in which a person resides or is found may order him to
give his testimony or statement or to produce a document or other
thing for use in a proceeding in a foreign or international
tribunal, including criminal investigations conducted before formal
accusation. The order may be made pursuant to a letter rogatory
issued, or request made, by a foreign or international tribunal or
upon the application of any interested person … . The order
may prescribe the practice and procedure, which may be in whole or
part the practice and procedure of the foreign country or the
international tribunal, for taking the testimony or statement or
producing the document or other thing … [or may be] the Federal
Rules of Civil Procedure.
“A person may not be compelled to give his
testimony or statement or to produce a document or other thing in
violation of any legally applicable privilege.”
B
AMD and Intel are “worldwide
competitors in the microprocessor industry.” 292 F. 3d 664,
665 (CA9 2002). In October 2000, AMD filed an antitrust complaint
with the Directorate-General for Competition (DG-Competition) of
the European Commission.
Ibid.; App. 41. “The European
Commission is the executive and administrative organ of the
European Communities.” Brief for Commission of European Communities
as
Amicus Curiae 1 (hereinafter European Commission
Amicus Curiae). The Commission exercises responsibility
over the wide range of subject areas covered by the European Union
treaty; those areas include the treaty provisions, and regulations
thereunder, governing competition. See
ibid.; Consolidated
Versions of Treaty on European Union and Treaty Establishing
European Community, Arts. 81 and 82, 2002 O. J. (C 325) 33, 64–65,
67 (hereinafter EC Treaty). The DG-Competition, operating under the
Commission’s aegis, is the European Union’s primary antitrust law
enforcer. European Commission
Amicus Curiae 2. Within the
DG-Competition’s domain are anticompetitive agreements (Art. 81)
and abuse of dominant market position (Art. 82).
Ibid.; EC
Treaty 64–65.
AMD’s complaint alleged that
Intel, in violation of European competition law, had abused its
dominant position in the European market through loyalty rebates,
exclusive purchasing agreements with manufacturers and retailers,
price discrimination, and standard-setting cartels. App. 40–43;
Brief for Petitioner 13. AMD recommended that the DG-Competition
seek discovery of documents Intel had produced in a private
antitrust suit, titled
Intergraph Corp. v.
Intel
Corp., brought in a Federal District Court in Alabama. 3
F. Supp. 2d 1255 (ND Ala. 1998), vacated 195 F. 3d 1346
(CA Fed. 1999), remanded, 88 F. Supp. 2d 1288 (ND Ala. 2000),
aff’d 253 F. 3d 695 (CA Fed. 2001); App. 111; App. to Pet. for
Cert. 13a–14a.[
Footnote 4]
After the DG-Competition declined to seek judicial assistance in
the United States, AMD, pursuant to §1782(a), petitioned the
District Court for the Northern District of California[
Footnote 5] for an order directing Intel to
produce documents discovered in the
Intergraph litigation
and on file in the federal court in Alabama. App. to Pet. for Cert.
13a–14a. AMD asserted that it sought the materials in connection
with the complaint it had filed with the European Commission.
Ibid.[Footnote 6]
The District Court denied the application as
“[un]supported by applicable authority.”
Id., at 15a.
Reversing that determination, the Court of Appeals for the Ninth
Circuit remanded the case for disposition on the merits. 292
F. 3d, at 669. The Court of Appeals noted two points
significant to its decision: §1782(a) includes matters before
“ ‘bodies of a quasi-judicial or administrative
nature,’ ”
id., at 667 (quoting
In re
Letters Rogatory from Tokyo District, 539 F. 2d 1216,
1218–1219 (CA9 1976)); and, since 1964, the statute’s text has
contained “[no] requirement that the proceeding be
‘pending,’ ”
ibid. (quoting
United States v.
Sealed 1, Letter of Request for Legal Assistance from the
Deputy Prosecutor Gen. of Russian Federation, 235 F. 3d
1200, 1204 (CA9 2000)); see
supra, at 4. A proceeding
judicial in character, the Ninth Circuit further observed, was a
likely sequel to the European Commission’s investigation: “[The
European Commission is] a body authorized to enforce the EC Treaty
with written, binding decisions, enforceable through fines and
penalties. [The Commission’s] decisions are appealable to the Court
of First Instance and then to the [European] Court of Justice.
Thus, the proceeding for which discovery is sought is, at minimum,
one leading to quasi-judicial proceedings.” 292 F. 3d, at 667;
see
infra, at 9–11 (presenting synopsis of Commission
proceedings and judicial review of Commission decisions).
The Court of Appeals rejected Intel’s argument
that §1782(a) called for a threshold showing that the documents AMD
sought in the California federal court would have been discoverable
by AMD in the European Commission investigation had those documents
been located within the Union. 292 F. 3d, at 668.
Acknowledging that other Courts of Appeals had construed §1782(a)
to include a “foreign-discoverability” rule, the Ninth Circuit
found “nothing in the plain language or legislative history of
Section 1782, including its 1964 and 1996 amendments, to require a
threshold showing [by] the party seeking discovery that what is
sought be discoverable in the foreign proceeding,”
id., at
669. A foreign-discoverability threshold, the Court of Appeals
added, would disserve §1782(a)’s twin aims of “providing efficient
assistance to participants in international litigation and
encouraging foreign countries by example to provide similar
assistance to our courts.”
Ibid.
On remand, a Magistrate Judge found AMD’s
application “overbroad,” and recommended an order directing AMD to
submit a more specific discovery request confined to documents
directly relevant to the European Commission investigation. App. to
Brief in Opposition 1a–6a; Brief for Petitioner 15, n. 9. The
District Court has stayed further proceedings pending disposition
of the questions presented by Intel’s petition for certiorari.
Ibid.; see Order Vacating Hearing Date, No. C 01–7033 MISC
JW (ND Cal., Nov. 30, 2003) (stating “Intel may renotice its motion
for de novo review of the Magistrate Judge’s decision after the
Supreme Court issues its ruling”).
We granted certiorari,
540 U. S. 1003 (2003),
in view of the division among the Circuits on the question whether
§1782(a) contains a foreign-discoverability requirement.[
Footnote 7] We now hold that §1782(a)
does not impose such a requirement. We also granted review on two
other questions. First, does §1782(a) make discovery available to
complainants, such as AMD, who do not have the status of private
“litigants” and are not sovereign agents? See Pet. for Cert. (i).
Second, must a “proceeding” before a foreign “tribunal” be
“pending” or at least “imminent” for an applicant to invoke
§1782(a) successfully? Compare
In re Letter of Request
from Crown Prosecution Serv. of United Kingdom, 870 F. 2d
686, 691 (CADC 1989) (proceeding must be “within reasonable
contemplation”), with
In re Ishihari Chemical Co.,
251 F. 3d 120, 125 (CA2 2001) (proceeding must be
“imminent—very likely to occur and very soon to occur”);
In re International Judicial Assistance (Letter Rogatory)
for Federative Republic of Brazil, 936 F. 2d 702, 706
(CA2 1991) (same). Answering “yes” to the first question and “no”
to the second, we affirm the Ninth Circuit’s judgment.
II
To place this case in context, we
sketch briefly how the European Commission, acting through the
DG-Competition, enforces European competition laws and regulations.
The DG-Competition’s “overriding responsibility” is to conduct
investigations into alleged violations of the European Union’s
competition prescriptions. See European Commission
Amicus
Curiae 6. On receipt of a complaint or
sua sponte,
the DG-Competition conducts a preliminary investigation.
Ibid. In that investigation, the DG-Competition “may take
into account information provided by a complainant, and it may seek
information directly from the target of the complaint.”
Ibid. “Ultimately, DG Competition’s preliminary
investigation results in a formal written decision whether to
pursue the complaint. If [the DG-Competition] declines to proceed,
that decision is subject to judicial review” by the Court of First
Instance and, ultimately, by the court of last resort for European
Union matters, the Court of Justice for the European Communities
(European Court of Justice).
Id., at 7; App. 50; see,
e.g., case T–241/97,
Stork Amsterdam BV v.
Commission, 2000 E. C. R. II–309, [2000] 5
C. M. L. R. 31 (Ct. 1st Instance 2000) (annulling
Commission’s rejection of a complaint).[
Footnote 8]
If the DG-Competition decides to
pursue the complaint, it typically serves the target of the
investigation with a formal “statement of objections” and advises
the target of its intention to recommend a decision finding that
the target has violated European competition law. European
Commission
Amicus Curiae 7. The target is entitled to a
hearing before an independent officer, who provides a report to the
DG-Competition.
Ibid.; App. 18–27. Once the DG-Competition
has made its recommendation, the European Commission may “dismis[s]
the complaint, or issu[e] a decision finding infringement and
imposing penalties.” European Commission
Amicus Curiae 7.
The Commission’s final action dismissing the complaint or holding
the target liable is subject to review in the Court of First
Instance and the European Court of Justice.
Ibid.; App.
52–53, 89–90.
Although lacking formal “party” or “litigant”
status in Commission proceedings, the complainant has significant
procedural rights. Most prominently, the complainant may submit to
the DG-Competition information in support of its allegations, and
may seek judicial review of the Commission’s disposition of a
complaint. See European Commission
Amicus Curiae 7–8, and
n. 5;
Stork Amsterdam, [2000] E. C. R. II,
at 328–329, ¶ ;¶ ; 51–53.
III
As “in all statutory construction
cases, we begin [our examination of §1782] with the language of the
statute.”
Barnhart v.
Sigmon Coal Co., 534 U. S. 438, 450
(2002). The language of §1782(a), confirmed by its context, our
examination satisfies us, warrants this conclusion: The statute
authorizes, but does not require, a federal district court to
provide assistance to a complainant in a European Commission
proceeding that leads to a dispositive ruling,
i.e., a
final administrative action both responsive to the complaint and
reviewable in court.[
Footnote
9] Accordingly, we reject the categorical limitations Intel
would place on the statute’s reach.
A
We turn first to Intel’s
contention that the catalog of “interested person[s]” authorized to
apply for judicial assistance under §1782(a) includes only
“litigants, foreign sovereigns, and the designated agents of those
sovereigns,” and excludes AMD, a mere complainant before the
Commission, accorded only “limited rights.” Brief for Petitioner
10–11, 24, 26–27. Highlighting §1782’s caption, “[a]ssistance to
foreign and international tribunals and to
litigants
before such tribunals,” Intel urges that the statutory phrase “any
interested person” should be read, correspondingly, to reach only
“litigants.”
Id., at 24 (internal quotation marks omitted,
emphasis in original).
The caption of a statute, this
Court has cautioned, “cannot undo or limit that which the
[statute’s] text makes plain.”
Trainmen v.
Baltimore
& Ohio R. Co., 331 U. S. 519, 529
(1947). The text of §1782(a), “upon the application of any
interested person,” plainly reaches beyond the universe of persons
designated “litigant.” No doubt litigants are included among, and
may be the most common example of, the “interested person[s]” who
may invoke §1782; we read §1782’s caption to convey no more. See,
e.g.,
Whitman v.
American Trucking Assns.,
Inc., 531 U. S.
457, 482–483 (2001) (rejecting narrow reading of 42 U.
S. C. §7511(a) based on caption in light of “specifically”
broader coverage of provision’s text).
The complainant who triggers a European
Commission investigation has a significant role in the process. As
earlier observed, see
supra, at 11, in addition to
prompting an investigation, the complainant has the right to submit
information for the DG-Competition’s consideration, and may proceed
to court if the Commission discontinues the investigation or
dismisses the complaint. App. 52–53. Given these participation
rights, a complainant “possess[es] a reasonable interest in
obtaining [judicial] assistance,” and therefore qualifies as an
“interested person” within any fair construction of that term. See
Smit, International Litigation 1027 (“any interested person” is
“intended to include not only litigants before foreign or
international tribunals, but also foreign and international
officials as well as any other person whether he be designated by
foreign law or international convention or merely possess a
reasonable interest in obtaining the assistance”).[
Footnote 10]
B
We next consider whether the
assistance in obtaining documents here sought by an “interested
person” meets the specification “for use in a foreign or
international tribunal.” Beyond question the reviewing authorities,
both the Court of First Instance and the European Court of Justice,
qualify as tribunals. But those courts are not proof-taking
instances. Their review is limited to the record before the
Commission. See Tr. of Oral Arg. 17. Hence, AMD could “use”
evidence in the reviewing courts only by submitting it to the
Commission in the current, investigative stage.
Moreover, when Congress
established the Commission on International Rules of Judicial
Procedure in 1958, see
supra, at 3–4, it instructed the
Rules Commission to recommend procedural revisions “for the
rendering of assistance to foreign courts
and quasi-judicial
agencies.” §2, 72 Stat. 1743 (emphasis added). Section 1782
had previously referred to “any judicial proceeding.” The Rules
Commission’s draft, which Congress adopted, replaced that term with
“a proceeding in a foreign or international tribunal.” See
supra, at 4. Congress understood that change to “provid[e]
the possibility of U. S. judicial assistance in connection with
[administrative and quasi-judicial proceedings abroad].”
S. Rep. No. 1580, at 7–8; see Smit, International Litigation
1026–1027, and nn. 71, 73 (“[t]he term ‘tribunal’ … includes
investigating magistrates, administrative and arbitral tribunals,
and quasi-judicial agencies, as well as conventional civil,
commercial, criminal, and administrative courts”; in addition to
affording assistance in cases before the European Court of Justice,
§1782, as revised in 1964, “permits the rendition of proper aid in
proceedings before the [European] Commission in which the
Commission exercises quasi-judicial powers”). See also European
Commission
Amicus Curiae 9 (“[W]hen the Commission acts on
DG Competition’s final recommendation … the investigative function
blur[s] into decisionmaking.”). We have no warrant to exclude the
European Commission, to the extent that it acts as a first-instance
decisionmaker, from §1782(a)’s ambit. See 292 F. 3d, at 667;
supra, at 11, n. 9.
C
Intel also urges that AMD’s
complaint has not progressed beyond the investigative stage;
therefore, no adjudicative action is currently or even imminently
on the Commission’s agenda. Brief for Petitioner 27–29.
Section 1782(a) does not limit
the provision of judicial assistance to “pending” adjudicative
proceedings. In 1964, when Congress eliminated the requirement that
a proceeding be “judicial,” Congress also deleted the requirement
that a proceeding be “pending.” See
supra, at 4. “When
Congress acts to amend a statute, we presume it intends its
amendment to have real and substantial effect.”
Stone v.
INS, 514 U. S. 386, 397
(1995). The legislative history of the 1964 revision is in sync; it
reflects Congress’ recognition that judicial assistance would be
available “whether the foreign or international proceeding
or
investigation is of a criminal, civil, administrative, or
other nature.” S. Rep. No. 1580, at 9 (emphasis added).
In 1996, Congress amended §1782(a) to clarify
that the statute covers “criminal investigations conducted before
formal accusation.” See §1342(b), 110 Stat. 486;
supra, at
4. Nothing suggests that this amendment was an endeavor to rein in,
rather than to confirm, by way of example, the broad range of
discovery authorized in 1964. See S. Rep. No. 1580, at 7
(“[T]he [district] court[s] have discretion to grant assistance
when proceedings are pending before investigating magistrates in
foreign countries.”).
In short, we reject the view, expressed in
In re Ishihara Chemical Co., that §1782 comes into
play only when adjudicative proceedings are “pending” or
“imminent.” See 251 F. 3d, at 125 (proceeding must be
“imminent—very likely to occur and very soon to occur” (internal
quotation marks omitted)). Instead, we hold that §1782(a) requires
only that a dispositive ruling by the Commission, reviewable by the
European courts, be within reasonable contemplation. See
Crown
Prosecution Serv. of United Kingdom, 870 F. 2d, at 691;
In re Request for Assistance from Ministry of Legal
Affairs of Trinidad and Tobago, 848 F. 2d 1151, 1155, and
n. 9 (CA11 1988); Smit, International Litigation 1026 (“It is
not necessary … for the [adjudicative] proceeding to be pending at
the time the evidence is sought, but only that the evidence is
eventually to be used in such a proceeding.”).
D
We take up next the
foreign-discoverability rule on which lower courts have divided:
Does §1782(a) categorically bar a district court from ordering
production of documents when the foreign tribunal or the
“interested person” would not be able to obtain the documents if
they were located in the foreign jurisdiction? See
supra,
at 8–9, and n. 7.
We note at the outset, and count
it significant, that §1782(a) expressly shields privileged
material: “A person may not be compelled to give his testimony or
statement or to produce a document or other thing in violation of
any legally applicable privilege.” See S. Rep. No. 1580, at 9
(“[N]o person shall be required under the provisions of [§1782] to
produce any evidence in violation of an applicable privilege.”).
Beyond shielding material safeguarded by an applicable privilege,
however, nothing in the text of §1782 limits a district court’s
production-order authority to materials that could be discovered in
the foreign jurisdiction if the materials were located there. “If
Congress had intended to impose such a sweeping restriction on the
district court’s discretion, at a time when it was enacting
liberalizing amendments to the statute, it would have included
statutory language to that effect.”
In re Application of
Gianoli Aldunate, 3 F. 3d 54, 59 (CA2 1993); accord
Four Pillars Enterprises Co. v.
Avery Dennison
Corp., 308 F. 3d 1075, 1080 (CA9 2002); 292 F. 3d,
at 669 (case below);
In re Bayer AG, 146 F.3d 188,
193–194 (CA3 1998).[
Footnote
11]
Nor does §1782(a)’s legislative history
suggest that Congress intended to impose a blanket
foreign-discoverability rule on the provision of assistance under
§1782(a). The Senate Report observes in this regard that §1782(a)
“leaves the issuance of an appropriate order to the discretion of
the court which, in proper cases, may refuse to issue an order or
may impose conditions it deems desirable.” S. Rep. No. 1580, at
7.
Intel raises two policy concerns in support of
a foreign-discoverability limitation on §1782(a) aid—avoiding
offense to foreign governments, and maintaining parity between
litigants. Brief for Petitioner 23–24; Reply Brief 5, 13–14; see
In re Application of Asta Medica, S. A., 981
F. 2d 1, 6 (CA1 1992) (“Congress did not seek to place itself
on a collision course with foreign tribunals and legislatures,
which have carefully chosen the procedures and laws best suited to
their concepts of litigation.”). While comity and parity concerns
may be important as touchstones for a district court’s exercise of
discretion in particular cases, they do not permit our insertion of
a generally applicable foreign-discoverability rule into the text
of §1782(a).
We question whether foreign governments would
in fact be offended by a domestic prescription permitting, but not
requiring, judicial assistance. A foreign nation may limit
discovery within its domain for reasons peculiar to its own legal
practices, culture, or traditions—reasons that do not necessarily
signal objection to aid from United States federal courts. See
Bayer, 146 F. 3d, at 194 (“[T]here is no reason to assume
that because a country has not adopted a particular discovery
procedure, it would take offense at its use.”); Smit, Recent
Developments in International Litigation, 35 S. Tex. L. Rev.
215, 235–236 (1994) (hereinafter Smit, Recent Developments)
(same).[
Footnote 12] A
foreign tribunal’s reluctance to order production of materials
present in the United States similarly may signal no resistance to
the receipt of evidence gathered pursuant to §1782(a). See
South Carolina Ins. Co. v.
Assurantie Maatschappij “De
Zeven Provincien” N. V., [1987] 1 App. Cas. 24 (House of Lords
ruled that nondiscoverability under English law did not stand in
the way of a litigant in English proceedings seeking assistance in
the United States under §1782).[
Footnote 13] When the foreign tribunal would readily
accept relevant information discovered in the United States,
application of a foreign-discoverability rule would be senseless.
The rule in that situation would serve only to thwart §1782(a)’s
objective to assist foreign tribunals in obtaining relevant
information that the tribunals may find useful but, for reasons
having no bearing on international comity, they cannot obtain under
their own laws.
Concerns about maintaining parity
among adversaries in litigation likewise do not provide a sound
basis for a cross-the-board foreign-discoverability rule. When
information is sought by an “interested person,” a district court
could condition relief upon that person’s reciprocal exchange of
information. See Euromepa, S. A. v. R. Esmerian,
Inc., 51 F. 3d 1095, 1102 (CA2 1995); Smit, Recent
Developments 237. Moreover, the foreign tribunal can place
conditions on its acceptance of the information to maintain
whatever measure of parity it concludes is appropriate. See
Euromepa, 51 F. 3d, at 1101.[Footnote 14]
We also reject Intel’s suggestion
that a §1782(a) applicant must show that United States law would
allow discovery in domestic litigation analogous to the foreign
proceeding. Brief for Petitioner 19–20 (“[I]f AMD were pursuing
this matter in the United States, U. S. law would preclude it from
obtaining discovery of Intel’s documents.”). Section 1782 is a
provision for assistance to tribunals abroad. It does not direct
United States courts to engage in comparative analysis to determine
whether analogous proceedings exist here. Comparisons of that order
can be fraught with danger.[Footnote 15] For example, we have in the United States no
close analogue to the European Commission regime under which AMD is
not free to mount its own case in the Court of First Instance or
the European Court of Justice, but can participate only as
complainant, an “interested person,” in Commission-steered
proceedings. See L. Ritter, W. Braun, & F. Rawlinson, European
Competition Law: A Practitioner’s Guide 824–826 (2d ed. 2000)
(describing a complaint as a potentially “more certain (and
cheaper) alternative to private enforcement through the [European
Union’s member states’] courts”).[Footnote 16]
IV
As earlier
emphasized, see supra, at 17, a district court is not
required to grant a §1782(a) discovery application simply because
it has the authority to do so. See United Kingdom v.
United States, 238 F. 3d 1312, 1319 (CA11 2001) (“a
district court’s compliance with a §1782 request is not
mandatory”). We note below factors that bear consideration in
ruling on a §1782(a) request.
First, when the
person from whom discovery is sought is a participant in the
foreign proceeding (as Intel is here), 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. A
foreign tribunal has jurisdiction over those appearing before it,
and can itself order them to produce evidence. App. to Reply Brief
4a (“When th[e] person [who is to produce the evidence] is a party
to the foreign proceedings, the foreign or international tribunal
can exercise its own jurisdiction to order production of the
evidence.” (quoting Decl. of H. Smit in In re: Application
of Ishihara Chemical Co., Ltd., For order to take discovery of
Shipley Company, L.L.C., Pursuant to 28 U. S. C. §1782,
Misc. 99–232 (FB) (EDNY, May 18, 2000)). In contrast,
nonparticipants in the foreign proceeding may be outside the
foreign tribunal’s jurisdictional reach; hence, their evidence,
available in the United States, may be unobtainable absent §1782(a)
aid. See App. to Reply Brief 4a.
Second, as the 1964 Senate Report
suggests, a court presented with a §1782(a) request may take into
account 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 U. S. federal-court
judicial assistance. See S. Rep. No. 1580, at 7. Further, the
grounds Intel urged for categorical limitations on §1782(a)’s scope
may be relevant in determining whether a discovery order should be
granted in a particular case. See Brief for United States as
Amicus Curiae 23. Specifically, a district court could
consider whether the §1782(a) request conceals an attempt to
circumvent foreign proof-gathering restrictions or other policies
of a foreign country or the United States. See id., at 27.
Also, unduly intrusive or burdensome requests may be rejected or
trimmed. See Bayer, 146 F. 3d, at 196 (remanding for
district-court consideration of “appropriate measures, if needed,
to protect the confidentiality of materials”); In re
Application of Esses, 101 F. 3d 873, 876 (CA2 1996)
(affirming limited discovery that is neither “burdensome [n]or
duplicative”).
Intel maintains that, if we do not
accept the categorical limitations it proposes, then, at least, we
should exercise our supervisory authority to adopt rules barring
§1782(a) discovery here. Brief for Petitioner 34–36; cf.
Thomas v. Arn, 474 U. S. 140, 146–147
(1985) (this Court can establish rules of “sound judicial practice”
(internal quotation marks omitted)). We decline, at this juncture,
to adopt supervisory rules. Any such endeavor at least should await
further experience with §1782(a) applications in the lower
courts.[Footnote 17] The
European Commission has stated in amicus curiae briefs to
this Court that it does not need or want the District Court’s
assistance. See European Commission Amicus Curiae 11–16;
Brief for European Commission as Amicus Curiae in Support
of Pet. for Cert. 4–8. It is not altogether clear, however, whether
the Commission, which may itself invoke §1782(a) aid, means to say
“never” or “hardly ever” to judicial assistance from United States
courts. Nor do we know whether the European Commission’s views on
§1782(a)’s utility are widely shared in the international community
by entities with similarly blended adjudicative and prosecutorial
functions.
Several facets of this case remain
largely unexplored. Intel and its amici have expressed
concerns that AMD’s application, if granted in any part, may yield
disclosure of confidential information, encourage “fishing
expeditions,” and undermine the European Commission’s Leniency
Program. See Brief for Petitioner 37; European Commission
Amicus Curiae 11–16.[Footnote 18] Yet no one has suggested that AMD’s
complaint to the Commission is pretextual. Nor has it been shown
that §1782(a)’s preservation of legally applicable privileges, see
supra, at 16, and the controls on discovery available to
the District Court, see, e.g., Fed. Rule Civ. Proc.
26(b)(2) and (c), would be ineffective to prevent discovery of
Intel’s business secrets and other confidential
information.
On the merits, this case bears
closer scrutiny than it has received to date. Having held that
§1782(a) authorizes, but does not require, discovery assistance, we
leave it to the courts below to assure an airing adequate to
determine what, if any, assistance is appropriate.[Footnote 19]
* * *
For the reasons
stated, the judgment of the Court of Appeals for the Ninth Circuit
is
Affirmed.
Justice O’Connor took
no part in the consideration or decision of this case.
Footnote 1
“[A] letter rogatory is
the request by a domestic court to a foreign court to take evidence
from a certain witness.” Jones, International Judicial Assistance:
Procedural Chaos and a Program for Reform, 62 Yale L. J. 515,
519 (1953). See Smit, International Litigation under the United
States Code, 65 Colum. L. Rev. 1015, 1027 (1965) (hereinafter
Smit, International Litigation) (noting foreign courts’ use of
letters rogatory to request evidence-gathering aid from United
States courts).
Footnote 2
The Rules Commission also drafted
amendments to the Federal Rules of Civil and Criminal Procedure and
a Uniform Interstate and International Procedure Act, recommended
for adoption by individual States. See Fourth Annual Report of the
Commission on International Rules of Judicial Procedure, H. R.
Doc. No. 88, 88th Cong., 1st Sess., 2 (1963).
Footnote 3
See Smit, International
Litigation 1026–1027, n. 72 (commenting that Congress eliminated
the word “pending” in order “to facilitate the gathering of
evidence prior to the institution of litigation
abroad”).
Footnote 4
The Alabama federal court granted
summary judgment in Intel’s favor in the Intergraph
litigation, and the Court of Appeals for the Federal Circuit
affirmed. See 253 F. 3d, at 699. A protective order, imposed
by the Alabama federal court, governs the confidentiality of all
discovery in that case. App. 72–73.
Footnote 5
Both Intel and AMD are
headquartered in the Northern District of California. Id.,
at 113.
Footnote 6
AMD’s complaint to the Commission
alleges, inter alia, “that Intel has monopolized the
worldwide market for Windows-capable i.e. x86, microprocessors.”
Id., at 55–56. The documents from the Intergraph
litigation relate to: “(a) the market within which Intel x86
microprocessors compete; (b) the power that Intel enjoys within
that market; (c) actions taken by Intel to preserve and enhance its
position in the market; and (d) the impact of the actions taken by
Intel to preserve and enhance its market position.” App.
55.
Footnote 7
The First and Eleventh Circuits
have construed §1782(a) to contain a foreign-discoverability
requirement. See In re Application of Asta Medica,
S. A., 981 F. 2d 1, 7 (CA1 1992); In re
Request for Assistance from Ministry of Legal Affairs of Trinidad
and Tobago, 848 F. 2d 1151, 1156 (CA11 1988). The Fourth
and Fifth Circuits have held that no such requirement exists if the
§1782(a) applicant is a foreign sovereign. See In re
Letter of Request from Amtsgericht Ingolstadt,
F. R. G., 82 F. 3d 590, 592 (CA4 1996);
In re Letter Rogatory from First Court of First Instance
in Civil Matters, Caracas, Venezuela, 42 F. 3d 308,
310–311 (CA5 1995). In alignment with the Ninth Circuit, the Second
and Third Circuits have rejected a foreign-discoverability
requirement. See In re Application of Gianoli
Aldunate, 3 F. 3d 54, 59–60 (CA2 1993); In re
Bayer AG, 146 F.3d 188, 193–194 (CA3 1998).
Footnote 8
The Court of First Instance,
which is “attached to the [European] Court of Justice,” was
established “to improve the judicial protection of individual
interests, particularly in cases requiring the examination of
complex facts, whilst at the same time reducing the workload of the
[European] Court of Justice.” C. Kerse, E. C. Antitrust
Procedure 37 (3d ed. 1994).
Footnote 9
The dissent suggests that the
Commission “more closely resembles a prosecuting authority, say,
the Department of Justice’s Antitrust Division, than an
administrative agency that adjudicates cases, say, the Federal
Trade Commission.” Post, at 4. That is a questionable
suggestion in view of the European Commission’s authority to
determine liability and impose penalties, dispositions that will
remain final unless overturned by the European courts. See
supra, at 10.
Footnote
10
The term “interested person,”
Intel notes, also appears in 28 U. S. C. §1696(a), a provision
enacted concurrently with the 1964 revision of §1782. Brief for
Petitioner 27. Section 1696(a) authorizes federal district courts
to “order service … of any document issued in connection with a
[foreign] proceeding” pursuant to a request made by the foreign
tribunal “or upon application of any interested person.” Intel
reasons that “[t]he class of private parties qualifying as
‘interested persons’ for [service] purposes must of course
be limited to litigants, because private parties … cannot serve
‘process’ unless they have filed suit.” Ibid. (emphasis in
original). Section 1696(a), however, is not limited to service of
process; it allows service of “any document” issued in
connection with a foreign proceeding. As the Government points out
by way of example: “[I]f the European Commission’s procedures were
revised to require a complainant to serve its complaint on a target
company, but the complainant’s role in the Commission’s proceedings
otherwise remained unchanged, [§]1696 would authorize the district
court to provide that ‘interested [person]’ with assistance in
serving that document.” Brief for United States as Amicus
Curiae 20, n. 11.
Footnote
11
Section §1782(a) instructs that a
district court’s discovery order “may prescribe the practice and
procedure, which may be in whole or part the practice and procedure
of the foreign country or the international tribunal, for taking
the testimony or statement or producing the document or other thing
… [or may be] the Federal Rules of Civil Procedure.” This
mode-of-proof-taking instruction imposes no substantive limitation
on the discovery to be had.
Footnote
12
Most civil-law systems lack
procedures analogous to the pretrial discovery regime operative
under the Federal Rules of Civil Procedure. See ALI, ALI/Unidroit
Principles and Rules of Transnational Civil Procedure, Proposed
Final Draft, Rule 22, Comment R–22E (2004) (“Disclosure and
exchange of evidence under the civil-law systems are generally more
restricted, or nonexistent.”); Hazard, Discovery and the Role of
the Judge in Civil Law Jurisdictions, 73 Notre Dame L. Rev.
1017, 1018– 1019 (1998) (same). See also Smit, Recent Developments
235, n. 93 (“The drafters [of §1782] were quite aware of the
circumstance that civil law systems generally do not have American
type pretrial discovery, and do not compel the production of
documentary evidence.”).
Footnote
13
See Smit, American Assistance to
Litigation in Foreign and International Tribunals: Section 1782 of
Title 28 of the U. S. C. Revisited, 25 Syracuse J. Int’l L.
& Comm. 1, 13, and n. 63 (1998) (hereinafter Smit, American
Assistance) (noting that “[a] similar decision was rendered by the
President of the Amsterdam District Court”).
Footnote
14
A civil-law court, furthermore,
might attend to litigant-parity concerns in its merits
determination: “In civil law countries, documentary evidence is
generally submitted as an attachment to the pleadings or as part of
a report by an expert… . A civil law court generally rules
upon the question of whether particular documentary evidence may be
relied upon only in its decision on the merits.” Smit, Recent
Developments 235–236, n. 94.
Footnote
15
Among its proposed rules, the
dissent would exclude from §1782(a)’s reach discovery not available
“under foreign law” and “under domestic law in analogous
circumstances.” Post, at 3. Because comparison of systems
is slippery business, the dissent’s rule is infinitely easier to
state than to apply. As the dissent’s examples tellingly reveal,
see post, at 1–2, a foreign proceeding may have no direct
analogue in our legal system. In light of the variety of foreign
proceedings resistant to ready classification in domestic terms,
Congress left unbounded by categorical rules the determination
whether a matter is proceeding “in a foreign or international
tribunal.” While we reject the rules the dissent would inject into
the statute, see post, at 3–6, we do suggest guides for
the exercise of district-court discretion, see infra, at
20–23.
Footnote
16
At oral argument, counsel for AMD
observed: “In the United States, we could have brought a private
action in the district court for these very same violations. In
Europe, our only Europe-wide remedy was to go to the [European
Commission].” Tr. of Oral Arg. 33.
Footnote
17
The dissent sees a need for
“categorical limits” to ward off “expensive, time-consuming battles
about discovery.” Post, at 2. That concern seems more
imaginary than real. There is no evidence whatsoever, in the 40
years since §1782(a)’s adoption, see supra, at 3–4, of the
costs, delays, and forced settlements the dissent hypothesizes. See
Smit, American Assistance 1, 19–20 (“The revised section 1782 … has
been applied in scores of cases… . All in all, Section 1782
has largely served the purposes for which it was enacted… .
[T]here appears to be no reason for seriously considering, at this
time, any statutory amendments.”).
The Commission, we note, is not
obliged to respond to a discovery request of the kind AMD has made.
The party targeted in the complaint and in the §1782(a) application
would no doubt wield the laboring oar in opposing discovery, as
Intel did here. Not only was there no “need for the Commission to
respond,” post, at 5, the Commission in fact made no
submission at all in the instant matter before it reached this
Court.
Footnote
18
The European Commission’s
“Leniency Program” allows “cartel participants [to] confess their
own wrongdoing” in return for prosecutorial leniency. European
Commission Amicus Curiae 14–15; Brief for European
Commission as Amicus Curiae in Support of Pet. for Cert.
6.
Footnote
19
The District Court might also
consider the significance of the protective order entered by the
District Court for the Northern District of Alabama. See App. 73;
supra, at 6, n. 4; cf. Four Pillars Enterprises
Co. v. Avery Dennison Corp., 308 F. 3d 1075,
1080 (CA9 2002) (affirming district-court denial of discovery that
“would frustrate the protective order of [another] federal
[district] court”).
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