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IN THE SUPREME COURT OF THE UNITED STATES
- - - - - - - - - - - - - - - -X
INTEL CORPORATION, Petitioner :
:
: :
No. 02-572

ADVANCED MICRO DEVICES, INC.

- - - - - - - - - - - - - - - -X
Washington, D.C.
Tuesday, April 20, 2004
The above-entitled matter came on for oral

argument before 11:04 a.m. APPEARANCES:

the Supreme Court of the United States at

SETH P. WAXMAN, ESQ., Washington, D.C.; on behalf of the
Petitioner.
CARTER G. PHILLIPS, ESQ., Washington, D.C.; on behalf of
the amicus curiae, supporting the Petitioner.
PATRICK LYNCH, ESQ., Los Angeles, California; on behalf of
the Respondent.
JEFFREY P. MINEAR, ESQ., Assistant to the Solicitor
General, Department of Justice, Washington, D.C.; on
behalf of the United States, as amicus curiae,
supporting the Respondent.

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ORAL ARGUMENT OF SETH P. WAXMAN, ESQ.

C O N T E N T S
PAGE

On behalf of the Petitioner CARTER G. PHILLIPS, ESQ.
On behalf of the amicus curiae,
supporting the Petitioner PATRICK LYNCH, ESQ.
On behalf of the Respondent JEFFREY P. MINEAR, ESQ.
On behalf of the United States,
as amicus curiae, supporting the Respondent REBUTTAL ARGUMENT OF
SETH P. WAXMAN, ESQ.
On behalf of the Petitioner

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P R O C E E D I N G S (11:04 a.m.) CHIEF JUSTICE No. 02-572, REHNQUIST: We'll hear argument

the

Intel Corporation

v. Advanced

Micro Devices. Mr. Waxman. ORAL ARGUMENT OF SETH P. WAXMAN ON BEHALF OF THE PETITIONER WAXMAN: Mr. Chief Justice, and may it

please the Court: 28 U.S.C., section 1782 authorizes discovery for proceeding in a foreign or international Those

tribunal, upon application by an interested person. are words of indeterminate they should possibility, use in, scope. be No one in

this case of

contends that definitional person, for

applied to words

the limits

that

like a

interested contextual

proceeding

require

interpretation, and the discovery. As -- in

context in this case is comity in case

language that everyone in this

quotes, the 1964

Senate report characterized

the statute

as for the purpose of, quote, adjusting U.S. procedures to the requirements of foreign practice and procedure. And with respect to the question presented in

this case, there are three facts.

salient, completely undisputed

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Number

one,

EC

law

denies

an

antitrust

complainant any discovery rights for anything at any stage of the proceeding however long or short it may go. Number two, if AMD had the Antitrust Division FTC, it would of the filed its complaint with the

Justice Department or no discovery

likewise

have

rights

whatsoever. And third, the EC, which can obtain these

documents directly from Intel, has not only declined to do so in this case, but has unequivocally represented to this Court that permitting parties invoke section that file complaints with with

it, thereby to

1782, will interfere

its governmental functions. QUESTION: Mr. Waxman, I -I -- it seems to

make a lot of sense, but I need a -- I need a -- a hook to hang it on. I need some language in that text which -­ get

which would enable me discovery when

to say, oh, have

it means you only been discovery

there would

in the

foreign proceeding.

But I -- I don't

-- I don't see any

language that gets me anywhere near that. MR. WAXMAN: QUESTION: Justice -can fall back, I suppose, know, we on -­ the in

You

guided discretion courts never

until, you do it

can tell available

lower

to

unless its

foreign -- but I don't see it in the language.

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MR.

WAXMAN:

Justice

Scalia,

I'm

--

I'm

confident that our successive briefs a number of that I think hooks, but I'm going

in this case provide or two

to give you one

are particularly applicable with although obviously we

respect to also would not

textual interpretation,

urge the Court, because this is a procedural statute, one that grants announce general where a -substantive rights, that it rules of supervisory power

can and must that outline

where discretion ends and abuse begins because

another operative word in the statute is may. But example, since we're talking at the word, with text, let's look, person. The

interested

innovation of

the statute is it said, okay, you can grant

discovery either pursuant to a letter rogatory, et cetera, et cetera, which is the ordinary way in which

international discovery is invoked by foreign tribunals or foreign one in given sovereigns, or by an interested this case its plain says that meaning, person. Now, no be

interested person should otherwise we would

have

essentially act.

a universal

private

freedom of

information

And so -­ QUESTION: I understand that. But I am looking you to allow

or a word in here decide whether

that -- that similarly requires foreign court itself would

the

discovery.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 two points European mean, the who argues

MR. WAXMAN: QUESTION:

Well, we -- we think --

Which is -- which is the -- the major

point you were addressing. MR. WAXMAN: QUESTION: MR. Yes.

I don't see any -- any -­ Everybody will come give you -- everybody of what of

WAXMAN:

today will

some definition

interested person is, and none definitional construction possibility. that is

of them are the limits got to give

So you've

it a and

consistent

with the

history

purpose of the statute. QUESTION: Why not at least a complainant? I

person who is seeking the discovery here is the to the commission and says

complainant, the one who comes investigate. And I understand

your third point. there is no

Your first

puzzle me because to our

counterpart in It

schemes

out-of-court

discovery.

doesn't exist. the court and

It all takes the direction

place under the of the court.

control of And on the unit

other hand, the -- the is is

animal that the EC antitrust

nothing like our Antitrust Division where the -- we that blending. You don't have a complainant

don't have

who has a right before that commission to submit evidence, to be present at their -if they -- if they do have a

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hearing. Antitrust

We don't Division

have a that

complaining party a

before the to be

has

statutory right

present at a

hearing.

So you

-- the -- the

systems are

different and you can't compare them on both points. MR. WAXMAN: Justice Ginsburg. To be -- to be sure -- to be sure, And you will hear -you know,

everybody has their own favorite contextual interpretation of words like interested person or for use in. But the

context of this

statute is discovery, and the purpose, as is to reduce the significance discovery. And of

made pellucidly clear, international

boundaries in

therefore,

what we say, with person to

respect, is you should

read interested

mean an entity that has at least some discovery stage of the process, whether

rights to something at some

it's pending or imminent or reasonably foreseeable. QUESTION: country? MR. WAXMAN: In -- in the foreign country, that Some -- some discovery rights in this

is, for the foreign sovereign who's being assisted. Now -no. now, AMD suggests of that oh, no, was no, no,

Another purpose

the statute

the imperial Now,

export of, quote, liberal American

discovery rules.

we think that's wrong, but even if it were right, it would be unavailing if they in this case because it is undisputed that the antitrust

had filed a complaint

with any of

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regulatory authorities here, they would discovery whatsoever. to interpret interested that has no discovery

be entitled to no you ought entity in the

And therefore, at least person to rights

mean a private

whatsoever either

foreign proceeding or would have it here. I mean, the very premise of, quote, liberal

American discovery is that it party That some undertakes the is, you file a speculation

is available when a private of being a litigant.

obligations -- you can't you have

get discovery based on a lawsuit. You get

that

discovery when

you undertake

the obligations

consistent

with rule 11 of pleading a case. to do --

And what they are trying decided by any

there is no case, reported case,

court in the long history of this -­ QUESTION: civil law proceeding But even so, if you take a typical

a -- between private

litigants, you The court has

can't go out and get discovery on your own.

to authorize it, and the order for discovery will come not from a subpoena that you sent as a private party. It's your

just -- they don't -- so

if we were to interpret it

way, then you would say, well, civil law system that

that no private party in a know from pretrial

doesn't

discovery, doesn't have anything like pretrial could never get any documents, could

discovery, get any

never

testimony.

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MR. WAXMAN:

Justice Ginsburg, I -- I think -- I

think this Court ought to announce that since the purpose of the statute is to assist, quote,

tribunals and

litigants before

those tribunals,

that the indeterminate words of the statute should be read in that context. But even if you wanted to say that

discovery would be

available at least on

a discretionary

basis, to someone who has some discovery rights somewhere, if they were to file this type of action in some place,

that would also be useful to the lower courts. And there -- it is simply irrational to say that that was enacted in order to reduce the

significance of international boundaries would create this giant loophole that creates just ubiquitously because universally has in -one

unavailable happens to

discovery, bring an

somebody complaint

administrative

country and seeks to receive

documents that are available

in this country when he or she couldn't have received them if he had sued here and where the foreign, quote, tribunal has stated 1782 by as a categorical matter that resort to section complainants before it will affirmatively

undermine its sovereign governmental processes. QUESTION: What happens when AMD goes to what the the EU

first instance,

disappointed with

commission or

that the EU committee has done, and then it

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goes to

the court of first

instance?

Can

that court of

first instance in its discretion order any discovery? MR. WAXMAN: the answer to I believe, Justice Kennedy, I'm sure that

that question

is no.

that Mr.

Phillips, on behalf of the EC, will if I'm wrong. But whether it can -­ I'm

be able to correct me

QUESTION:

sure he'll -- I'm

sure he'll be

glad you asked him to do that. (Laughter.) MR. WAXMAN: Well, I'm giving him at least 15

minutes advance -- 10 minutes advance warning. The point here, I think, in response to your

question, Justice Kennedy, as whether it could or couldn't is a feature of a sovereign determination by the countries that make up the European Community. If discovery no doubt that's before is a a

available in that court proceeding

proceeding, there's and that's a

proceeding

tribunal.

And whatever discovery rights -­ QUESTION: But I'm talking, Mr. Waxman -­ -- whatever --

MR. WAXMAN: QUESTION: QUESTION: would seem --

Mr. Waxman -­ That's -- that's why I asked the court of and it first

let's

assume that

instance could

order and in the usual

course would order

some sort of discovery.

Would that change your case here?

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MR. WAXMAN:

It -- it

wouldn't at all.

If it

could, then, you know, a 1782 request could be made in the unlikely event that the EC or the court couldn't simply do what it can documents. do now, which is I mean, that's order Intel to -that's produce the jarringly

the

anomalous result that they're seeking. QUESTION: Mr. Waxman, I thought it was clear

that the court proceeding is a review of comes to

the record as it

the court from the commission, that is, that the the commission and that

only proof-taking stage is before

the EC courts, both the tribunal of first instance and the ECJ, review any proof. MR. WAXMAN: I believe that's correct, and our on the record that exists. They don't take

-- they call -- they say that Catch-22 or

this puts them in a, quote,

a conundrum, but it does nothing of the sort.

The question before the court of first instance may be -­ and this is assuming a lot of speculative things

including, among what the EC

others, that they

are disappointed with

does and that the EC doesn't do what it could

do any day, including this afternoon, which is order Intel to produce these documents, produced and proceed worth but assuming documents aren't

the EC decides, as we fervently hope, not to and -- and court of they decide that it's and the

against Intel go to the

it to

first instance

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review will

only be on the

record that the

EC compiled,

under European Community law ipso facto the question would be whether or not the EC or DG comp erred in declining the request to obtain these documents. I mean, you -- we -- we don't have a proceeding a regular lawsuit in the United Intel wants

-- let's say in a -- just States.

I'm -- you know, Intel is suing AMD. AMD objects. discovery.

certain discovery. going to

The judge says, I'm not I don't really think You'd be well,

grant that

that's necessary. laughed out

We don't have if

a procedure. in

of court

you came

and said,

nonetheless, we want it produced so that if we lose before this court proceeding and we go up on appeal, we'll be

able to

argue not only that the district judge abused his

discretion in denying discovery, but we want to be able to show what those documents would such a procedure. And conundrum to the extent that there's any, quote, say. I mean, nobody has

here -- and

frankly, I don't see

it -- it's a

conundrum that

is the result of the way that the European

Community has chosen to organize its processes. QUESTION: I think the -- the difficulty is -­ if

is, well, what are the rules. it makes the case. a lot of sense,

What you say sounds as

but there are three

aspects to

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Starting backwards is, can a private party bring answer is yes. not always. You So agree it's yes. But you that

want to say

then you have

a rule

you've just enunciated now of who definitely couldn't. And as to the second, I guess -- I mean, I'm not sure that's the that out. right rule, frankly. Maybe we'd figure

Maybe it is. The second part. I found an opinion by Justice

Ginsburg where she has a rule which is in the D.C. Circuit which says about guess is that how close it has you will say to be in time, okay, but and my I'd be

that's

interested if you don't. And as to the first part about, can get well, yes, we not

is a

person who

discovery, but

here, now, there I don't see any rule at all. to know your views on that. MR. WAXMAN: QUESTION: Well -­ I mean, you

So I'd like

want to follow their -­

So my two

questions are, is

Justice Ginsburg's

approach to the time problem okay with you? MR. WAXMAN: QUESTION: No. We think -­

No.

All right. think, is no

MR. WAXMAN: all, as

-- that insofar -- well, we has explained, there

the EC

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proceeding before a tribunal and there won't be unless and until one of European -­ QUESTION: Well, that -- her quote -And -­ Let me -- I have to get better quote this. this discovery It these two parties ever decides to go to the

MR. WAXMAN: QUESTION: says you have to

reliable be

indications

of the

likelihood that

proceedings will

instituted within a reasonable time. MR. WAXMAN: QUESTION: Right.

Now, you might win under that for the

very reason you state. MR. under it. made by a WAXMAN: I think we certainly would win request is or

We think on private

balance that when the not a foreign

party,

sovereign

tribunal, that the request should is a

be made by somebody who

litigant in pending litigation but that at the most, to say, well, okay, even in the context

if the court were

in which there is a private who's not even a litigant yet, we're going to allow discovery to be obtained where

litigation is, as

the Second Circuit has

said, imminent,

that is, reasonably likely to occur and reasonably soon to occur, because otherwise discovery by private parties,

prior to the -- the initiation of any proceedings before a tribunal is ubiquitously unavailable unlike the context

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of, for example, an investigating magistrate or a criminal prosecutor where it almost always is universally

available, and the 1996 amendment that. QUESTION: Do you

to the statute reflects

have

any

explanation for

elimination of the word pending from the statute? MR. legislative WAXMAN: None, particularly of the since the

history --

the language

legislative

history that explains

the statute continues to use it, it most likely French the -a

seems to me that what they -- what they -- it reflects the fact that investigating language by where it

they wanted to include the -and I won't

magistrates

mangle

trying to

give the

French pronunciation was or wasn't

was

arguable

whether that to --

tribunal.

They wanted

to cover it

and therefore in that

pending wouldn't context. But

necessarily have

been required

I don't think

-- there

is not a

shred of

evidence that when Congress considered this statute at any point in its -- and it had legislative development, it no reason in the cases to ever considered ever consider -­ that doesn't in any would this

an outlandish request have any

where a private party

discovery rights at

this stage anywhere such a complaint by means

country no matter thereby get them

where it files as a

windfall

of

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anachronism. May I reserve the balance of my time? QUESTION: Very well, Mr. Waxman.

Mr. Phillips, we'll hear from you. ORAL ARGUMENT OF CARTER G. PHILLIPS ON BEHALF OF THE AMICUS CURIAE, SUPPORTING THE PETITIONER MR. PHILLIPS: may it please the Court: Justice Kennedy, the answer that the court of first instance to your question is does not have the Thank you, Mr. Chief Justice, and

authority to order discovery. But Justice Ginsburg, the answer to your

question is that the court of first instance does have the authority to that we that say, in response to an argument made by AMD, we didn't take know from what the that

have not adequately explained why account. a pretty And good we

information into that AMD has

briefs

idea

information entails and therefore would adequate position to go first,

be in a perfectly to the

obviously,

commission

and say this

is why

we want you

to consider

this information. And then second, in the event that we were to

issue a refusal

to go forward with

the proceeding, which

we have to explain, frankly, in quite excruciating detail, that's then subject to very much plenary review by the

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court

of

first

instance

and

ultimately the

Court

of

Justice. QUESTION: expand the record. MR. PHILLIPS: No. The court of first instance It, like our Federal has courts to And the court of first instance can't

does not expand the record. reviewing send the

agency decision-making,

the authority

matter back to the agency to review the question

a second time. QUESTION: I mean, this is Where does this proceeding stand now? request and it's pretty -­

a discovery

it's been pending pretty long. preliminary determination? MR. PHILLIPS: The

Has the commission made no

commission has

not made

a

preliminary determination. it in context. This is a

I think

it's important to put monopoly power

-- an abuse of

claim based on a large between Intel and a

number of contracting arrangements lot of its customers. And the

question -- and so there's a serious question of having to review a lot of market data in order to determine whether

or not there appears to be a pattern of abuse or a problem that's worthy of going forward with. So the commission has for a very hard look at the nature some time been taking of the market, has

obviously

talked to AMD,

has talked

to Intel.

I think

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that's

an important aspect

of this

case that

the Court part of

ought to have in mind, is that -- and -- and it's the comity concerns that I think ought to

animate the has an

Court's analysis of

this problem.

The commission

orderly process and that process may, at some day, require it to ask Intel to provide these We don't know. a private particular documents or

other documents.

But what we don't want frankly is for

entity to run to a United States court and use essentially the commission as a pawn in an effort to obtain pre­

complaint discovery.

That's pre-complaint both pre in the

United States complaint and pre-complaint in the -- before the European Commission. If at some point in the future

we need assistance, we know on our own.

how to obtain that assistance quote, interested parties

We don't require,

to do so. In our -- in our assessment of the case and -­ QUESTION: How does that fit in the rule then? rule of law is it?

I mean, what kind of -- what kind of a

I mean, what do you -- how do you fit that in? MR. PHILLIPS: QUESTION: We -- we -if the commission doesn't want

Do you say

want it, then don't give it it, do? How does this fit? MR. PHILLIPS:

to them, but if they do

Well -­

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QUESTION:

How

do you interpret the

statute to

get the result that you're arguing for? MR. PHILLIPS: Let me give you a preliminary

answer and then I'll tell you -- the -- the real answer as how -we would interpret it through the word tribunal. feels most

That's the statutory comfortable with.

hook that the commission

QUESTION: No, a tribunal -- I don't think

it is

a tribunal probably, but I'll hear more on the other side. But still, there is a tribunal in the offing and that's

the tribunal

that will be there if the commission decides

to enforce this. MR. PHILLIPS: To be sure, Justice Breyer. based on an But

the Ninth Circuit's that the preliminary this particular

decision was

assessment in

actions taken

by the commission

case are such

that render us

a tribunal

within the meaning of the statute, which was basis on which be the court of appeals least on

the explicit ordered this the

information to district court. the extent approach

evaluated at

remand by

And

-- and our position is, Court is going to

at least to -- an

that this

adopt an

akin to

that by

Judge

Friendly in

the Second

Circuit opinion involving the Indian tax collectors, which looks to distinct see whether or not the from the adjudicative function is our answer

investigative functions,

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would be that we are

not that kind of a tribunal.

We -­

everything we do is investigative. QUESTION: think

We do not perform -­

That would do it, but they have -- I

they have the alternative ground here, that even if a tribunal, the Ninth in Circuit says of it could

you're not lead to

a proceeding

the court

first instance.

Don't they say that somewhere in their opinion? MR. PHILLIPS: They make that argument, but that

would be an alternative theory. QUESTION: All right. So as long as they make

that argument, then I can't say, okay, I've got the result there that -right, that they're arguing for, assuming using this thing you're

that -- that

just by

about the

tribunal. MR. PHILLIPS: QUESTION: Well -­ Now, so -- so what else

All right.

could we use to get to your desired end with this statute? MR. PHILLIPS: Well, the -the next step,

obviously, and it's not one that the commission argues for specifically, but it's one that -- that Intel makes, which is that even if -- if you're going to use the court as the ultimate tribunal, request court. for then what is the nexus between before this that

information

and a

proceeding

That's

so far off into the future. earlier D.C. Circuit

It certainly Justice

implicates the

opinion by

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Ginsburg, et cetera. QUESTION: I assume that the EU committee would

be a tribunal under the first sentence if it asked for the documents. MR. PHILLIPS: No, it would not regard itself as If we wanted these

a tribunal under those circumstances. documents, we -the parties a we would seek them

either directly from This is not

or through some other mechanism.

mechanism that the --

that the commission itself views We would go through We would We seek have not

as available to it to seek documents. government officials. We would go

to the FTC.

go to the Department of might go to our --

Justice to seek information. our member countries to

information, or we would go

to parties over whom we But 1782 is

direct jurisdiction to seek information. a provision that

the commission views itself

as -- views

as available to it, nor does it by -- by as a

want to be used as a pawn

private entities seeking to employ its processes to obtain pre-trial -pre-complaint

mechanism

discovery that's available under no other circumstances. The -the over-arching argument that the from on a

commission would like the -this is -is a question

the Court to take away have to decide

of if you

contextual basis, because not unambiguous

the language of the you have

statute is up with

and therefore

to come

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some limiting

principles, the commission urges

the Court

to recognize that the use of of this statute in this

discovery in this -- the use particular way is a direct

interference. information. and the It

It

risks

the

release

of

confidential commission us to

increases the it

burden on the and it

workload that

has,

allows

unseemingly -used as a pawn

unseemingly being in this kind of

used -- unseemly -- in this kind

being of an

effort at discovery. QUESTION: workload?

And we would ask -­ How does it increase the commission's

MR. PHILLIPS: QUESTION: they give it to you? MR. PHILLIPS:

Well, it -- it -that you look at it if

In the sense

In

that

sense

and

it

also

provides an incentive. QUESTION: Why -- why don't you just say we're

not going to look at -­ MR. PHILLIPS: for more device in It -it provides an incentive

filings with the commission in order to use this order to obtain discovery that you otherwise

could not get. that it may be

And I think there's good reason to suspect used. Certainly if this Court were to

uphold what

AMD attempted to accomplish here,

I would be

quite worried about other plaintiffs in future cases using

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this particular device. And that are remember, there for a are no filing be a rule 11 with the sanctions European a a

available

Commission.

You don't

have to

lawyer

to file

complaint with

the European

Commission. It's

It requires

relatively minimal identifies a

amount of effort.

a letter that commission

particular problem

and asks the

then to go forward and take a look at it. a -- it's essentially a

Therefore, it's plaintiffs

costless exercise by

using the commission, I submit, in a way that I would hope the Court would find inappropriate and therefore ought to

resolve the ambiguities, whether you do it on the basis of tribunal or for use of or proceeding -- and the commission would not presume to tell this Court how to interpret the its statute, but whatever you look choice you make,

language of whichever

statutory hook

for, the

commission

would ask that this Court interpret the statute narrowly. QUESTION: the reply brief? I'm wondering is meant to What about the one that comes up in So

And it -- and this is Intel's brief.

if the commission shares the view that 1782 procuring evidence in the United the

deal with

States from a third party,

not from the party before

commission, not from Intel because the commission can tell Intel you give -- give us these documents. But it must

refer to people who are not before the court.

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MR.

PHILLIPS:

Yes,

well,

the commission

is

certainly supportive of that notion because the commission believes that when and if it needs these -this

information, the party. obtain it.

it will be That is the

able to obtain

it directly from order to

easiest undertaking in the commission has

information that

available to

So to the extent the Court

wants to draw that line, comfortable with commission is

certainly the that line.

commission would be quite Again, of course, the

uncomfortable

telling you how

to decide the

case -- the

statutory -- the specific statutory language. Let me just -- one last point. The last thing

world the commission really courts deciding

wants is to on

have 800

district

this issue It

a case-by-case that

basis exercising their

discretion.

seems to us

that is an intolerable burden to impose on the commission. It cannot monitor all litigation in to make it its interests is terribly the United States in known. this And, Court as a

order

and concerns important

therefore, announce a matter of

that

rule, either as a statutory

supervisory matter or will

construction, that

limit the a pawn

ability of the commission to be used, as I say, as in this discovery effort. QUESTION: What -what's our

authority

to

supervisory rule?

What's your best

case for

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that? MR. PHILLIPS: Oh, geez. I don't -- off the top it -­ I'm able

of my head -- I mean, the commission didn't examine that particular issue specifically, Justice Kennedy. -- I'm hoping that my to give -­ QUESTION: Interpretation of what colleague in rebuttal will be

comity

consists of in this instance. MR. PHILLIPS: Well, the -- the comity principle

are the cases like McCulloch and the -- and the -- that we cited in the brief, and obviously Charming Betsy. I mean,

those are rules of interpretation that we have, but that's not -that doesn't answer Justice Kennedy's specific

question. QUESTION: Thank you, Mr. Phillips.

Mr. Lynch, we'll hear from you. ORAL ARGUMENT OF PATRICK LYNCH ON BEHALF OF THE RESPONDENT MR. LYNCH: the Court: I'd like to underline three points. First of all, concerns. Those the question of the EC's comity but Mr. Chief Justice, and may it please

concerns

deserve

respect,

emasculating section 1782 is not the proper way to respect those concerns. Privilege is really the right answer to

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the EC's concerns and the right answer expressed concern about 800

to counsel's last­ judges reaching

district

different conclusions in different cases. As to the second question, whether or not this the

is a proceeding before a heart of this

tribunal, which seems to be Congress enacted

case, when

or amended

section 1782 in 1965, it is absolutely clear that Congress intended to extend to proceedings in the rights granted under foreign countries that section 1782 were quasi­ is also did not

judicial quite

and administrative in Congress did

nature. not

And it and

clear that

know

consider it necessary to know all the different shapes and forms that administrative law might take in other

jurisdictions. QUESTION: -a criminal My In Israel, for example, if you have a it looks just like our

prosecutor,

prosecutor.

understanding is that the

one difference

is that a victim could go to court to force the prosecutor to bring a prosecution. statute, because of in Israel are open So does that mean now under this all prosecutors under this

that one difference, to this

-- our tribunals

statute? MR. LYNCH: question arises -­ of whether Well, I -- I think that the is an -- the

a victim

interested person

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QUESTION: part I'm getting at.

No, no. I am

I'm

not -- that's

not the think of

saying it's easy to

people whom, when we look at them, they are precisely like a human being in the U.S. Attorney's office, and

everything they do every day is just like a U.S. Attorney, but for one thing, that somebody who can get Now, a court to I'm asking wants a prosecution no

to be brought prosecution.

review a decision, you if that

single

difference is sufficient to translate this into a tribunal under the act. MR. LYNCH: Your Honor, I believe that the

answer is that the court to which you can go in Israel and ask them to direct the prosecutor to bring a prosecution

has to be a tribunal within the meaning of the statute. QUESTION: No. Now, you're not getting my

MR.

LYNCH:

But

the

prosecutor

is

not

a

QUESTION:

I don't want to just repeat it again. The question is I'm the same, Somebody in

not understand the question?

imaging a person like

a U.S. Attorney, exactly

and there's only the one difference I mentioned. can go ask a judge to not bringing difference. this

say did he abuse his discretion Okay? That's the

RICO case.

only

Now, I'm asking you if we had such

a person,

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does that make him a tribunal under the act. MR. LYNCH: be a tribunal. QUESTION: MR. LYNCH: QUESTION: this particular I Fine. If that's so -­ A person -- the prosecutor would not

The --- and I agree with you -- how from the one How I does just

tribunal don't

differ

described?

mean a

tribunal.

does the

commission differ from that prosecutor I just described? MR. LYNCH: Because under the European rules of

procedure which I can't relate to Israel, but I can relate to the United States -QUESTION: about Israel. MR. LYNCH: QUESTION: MR. LYNCH: QUESTION: Under the -You've got my question. Under the -And I want to know how they differ Forget Israel. I might even be wrong

from what I just said. MR. LYNCH: Under the European rules of

procedure, Justice has to

Breyer, the -- the European Commission has to apply the law to the by a

consider the facts,

facts, has court.

to reach a decision

which is reviewable

This is not -­ QUESTION: And that differs from my case, which

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was our

U.S. Attorney who can be brought to court for not on those to kinds of and was grounds. you're special You more said it or less my

prosecuting doesn't

apply what

him,

now the

repeating

I said

feature of

imaginary U.S. Attorney. MR. LYNCH: QUESTION: Well -So is -- you can elaborate on that or

give me another one too. MR. LYNCH: I believe that the -- the process I of quasi-judicial activity an adjudication

described is a classic example by an administrative body.

It would be

under the Administrative Procedure Act. QUESTION: his own to impose a case to court, commission here The fine. prosecutor has no Right? authority on bring the

He can just

and I think what you're saying is that the does have authority on its own to take it or

action against a party. takes will require

That -- now, that action that but it can impose a fine

be reviewable,

the -- the

selling of some of Isn't that right? Yes.

the assets of the

company and so forth. MR. LYNCH: QUESTION: QUESTION: from what a

Yes, Your Honor. That's -­

That's very important. That's different.

That's different can't do

prosecutor can do.

He can't -- he

anything on his own.

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MR.

LYNCH:

He

cannot do anything

on his own.

He does not have the power to issue fines. QUESTION: And so what is the difference there What

between -- and I -- I'm serious about this question. is the -- what -- all my questions are serious. (Laughter.) QUESTION: this. But What this is is -I don't know

the

the

difference specifically the U.S. What's

the EU saying

you pay

$10 million and pay $10 million?

Attorney saying

we want him to

the difference there procedurally? MR. LYNCH: order of the The -- the order of the EC, the

commission is a final,

enforceable judgment

in Europe unless the party, takes an appeal to the

the respondent to that order, And that would of but

community courts.

be the same as an order of the NLRB or an order of one our administrative agencies which is enforceable

subject to judicial review. QUESTION:

I don't want to -­ it, do they give a

When they review

leg up to the commission? MR. commission -­ QUESTION: issue in the court NLRB, that the If it goes to court, is the -- is the in the EU an issue like review of the LYNCH: When -when the -the

NLRB wins, unless they're

quite wrong, or

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is it like a court

reviewing a decision of the

Antitrust say,

Division to bring a tying we'll make up

case where the court will own? You know,

our mind on our

they know

something about it, so do we. MR. LYNCH: the -- if the -QUESTION: They --

Which is it? If

It -- I think it's some of both.

It has to be either one or the other.

they either have to give deference to the agency, making this decision on their own.

as we did, or they're And so -­ MR. deciding on would U.S. LYNCH:

If

the

agency

purports

to

be

a question of law,

like is this

tying, they way a

review the decision court would and

of the

agency the same or not this

say, whether

is tying

under article of law and word

82 or article 81, is

ultimately a decision have the last was the

ultimately the community courts If they were making

on it.

a decision,

procedure that was

followed here adequate, did the -- did evidence, did it pursue give -- they would give to

the commission properly weigh the the right evidence, they would

deference to

the commission's

ability to

decide how

conduct its process. QUESTION: MR. LYNCH: -- I'm at

So there's a great deal -­ How about fact-finding? The fact-finding process is it to U.S. process. -- I'm There's

a loss to relate

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not like a substantial evidence -­ QUESTION: I'm saying does No, I'm the not talking court about process. defer to the

reviewing

commission's finding of fact. MR. LYNCH: I can't find has that been It -- I think it clearly defers, but standard of review the because the

commission

reversed in

Guerin

case, for

example, which is cited in the briefs. been reversed because the facts

The commission has to

before it, according

the reviewing court, established a violation -­ QUESTION: My impression, which only comes from

the newspapers, is that the courts there are taking a much more active role and it's the Antitrust Division becoming like they're vis-a-vis and it's not like vis-a-vis a

commission.

But is that -- my -­ I would -- I would say -­ I'm wrong on that. -- with -- with all respect, I would Court vis-a-vis the district

MR. LYNCH: QUESTION: MR. LYNCH: say it would be

like this

courts

or vis-a-vis administrative agencies as opposed to

prosecutors. And where -that in enacting Europe or where I started on this did not point was

1782, Congress to any other

undertake to the world

dictate

country in

exactly our standards of administrative procedure.

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QUESTION: us that

But did we should

it --

did it

undertake to I

exceed our

standards?

mean, I can understand the -- the argument that you -- you mustn't, in effect, limit the -- the discovery here by the discovery that they could have knows what it had over there because who not experts in that,

-- I mean, we're just

and it's hard to find out. We on are, however, at least would closer provide. to being Is it

what American

law

plausible to think that Congress this which great example to the

was, in -- in

extending an example than

world, extending

would provide

even

more generous

discovery

American law would in a domestic antitrust proceeding? MR. LYNCH: premise here. Europe and one and States, Your Honor, I think that is a false going on in gave AMD United in the

The difference between what's

what's going on here one Europe-wide have brought

is that Europe remedy. a private In

only

the

we could

action

district court for these very same violations. our only Europe-wide remedy was to go to the

In Europe, commission.

The European authorities as -QUESTION: So, in other words, you're simply

saying we can't -- we could sue here. Therefore, you've a litigant

We can't sue there.

got to, in effect, give us the right of though we are not there in a

here even

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litigant's position. MR. LYNCH: in a With all respect, I would say we are Under our interested party

litigant's position.

rules -­ QUESTION: being a party as But not in -not in the be if sense of a

-- as

you would

you brought

private antitrust complaint. MR. LYNCH: In

That's all I meant. of being a party in

the sense

that our application has the procedural law as a complaint we file

same standing under European would have here, that when

that complaint, the commission ipso facto owes us It cannot, just as It must It

an obligation to make an adjudication. a

matter of discretion, disregard our complaint. reasoned decision applying law

make a

to the facts.

must consider the evidence. QUESTION: telling me, yes, Okay. we'll So you, in effect, I think are accept than we the position that we

shouldn't States

be better off

would be in

the United

if you realize plaintiff

that we are in now.

the position of an -that's your

American answer.

right

That's

MR. LYNCH:

I'm --

I

would say

it

slightly

differently, that whether an American

you call us in

the position of you say there practical

plaintiff right now or whether

is no direct analogy, we

are a litigant in any

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sense of the word. The commission in its brief acknowledges that

when you get down to that last tribunal. They are making

step, they are acting as a a reasoned determination. Due Process

They're -- they're Clause -­ QUESTION: QUESTION: QUESTION: think this asking,

doing everything that our

Do they -- do they -­ May I go -­ Must they consider -- and I -- I

is along the lines hope I'm not

of what Justice interrupting.

Souter is Must they

so I

consider any evidence you give them? MR. LYNCH: QUESTION: They must. Or can they say that it's -- that -­

that there's a -- certain relevancy rules that -- that you must adhere to? MR. LYNCH: QUESTION: Well -Because what's happening, it seems to

me, is that you want to force them to consider things they don't want to consider. MR. LYNCH: know it. Well, I -- with all respect, I don't said they don't want to consider don't have the

that they've ever

The indication we have

is that they

resources as

-- as an enforcement agency to go after this

material which we think would be highly relevant.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 commission that? the --

But the answer to your question is, according to to the court of first instance, the European Court evidence we put before could presumably say

of Justice, they must consider the them. Like a

district court, they

this is irrelevant evidence, but they -­ QUESTION: But haven't they, in effect, said

They said, please, we don't -- we don't want this. MR. LYNCH: They have not said that. They have

-- the -- the commission tells us -- and I believe counsel has indicated -- if we present the evidence, they have an and they have an obligation And they to

obligation to consider it deal with

that in their decision.

must make a

reasoned decision which is reviewed by the court -­ QUESTION: QUESTION: QUESTION: But they don't want it. Isn't the -But they don't want it. They've also

said they don't want it.

They said, if you give it to us,

we'll look at it, we have to, but frankly, we'd rather you go away. Isn't that what they've said? (Laughter.) MR. LYNCH: said No -- no to one connected us. are And the with the -the that

has

that I

commission's

briefs

guess

capable

of

interpretation in

this Court.

But what -- what the staff

working with us says is that they don't want to ask for it

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because of whatever decision they'd no have no about this objection to us asking

make. for it. it.

But they We We

have

told them kept them

proceeding before we filed

informed every step of the way. To go back -­ QUESTION: one point me? May -- may I go back to the -- to the

of your answer that -- that continues to bother

And it may be that I -- I don't understand something.

So that's what I want you to help me on. I thought their your present position is argument was that when just like the -you say the a

or is

position of a

litigant, the difference

between you as

litigant over there and you as a litigant here is -difference in -- in effect, in responsibility.

is a

You at

least at not supposed to in the United They, States. are

bring an irresponsible complaint be sanctioned if you you don't have do. that

You can

I think, of

implying that over

obligation

responsibility

there and

therefore more, you ticket to not

simply by filing get a free

a complaint, without anything discovery, whereas your

ticket to

discovery if you were suing

in the United States, is

free because you would have to meet a certain threshold of responsibility before you bring it, and therefore your

positions aren't the same. What is the answer to that?

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MR.

LYNCH:

There

is

no

rule

11

for

any

proceeding brought in the European no direct rule 11. They have

Commission.

They have

great power over the firms of

that come before

them, and

they're perfectly capable

protecting themselves from frivolous activity. I think and us is this. speak finishes, the difference between the commission

When I finish or when this Court will

the last person to matter stands that

say the

submitted.

The commission

is arguing,

in effect,

it's not litigation stands submitted. they're a court

until the commission says And there's this momentary the door slams shut.

the matter point when Then the

tribunal and

of review says,

you didn't come

to the commission

and offer your evidence. It's taken us nearly 3 years to -- to get access to this evidence, which we wish to put before the court.

We are like any litigant in the United States who wants to say that the the body law, body charged with enforcing the labor the occupational law,

charged with enforcing properly conducted interest in

safety We

has not

its due diligence. right of

have a proprietary

our own

coming

forward and presenting persuasive evidence to the -­ QUESTION: Mr. Lynch, can I ask you this

MR. LYNCH:

Yes, sir.

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QUESTION: Because you

It's

prompted

by

Mr.

Waxman's you're

filed a complaint, you say Is that right? We can't be There an interested

an interested person. MR. LYNCH: just by filing

person the

a complaint.

are -- there are

equivalent of -QUESTION: MR. LYNCH: QUESTION: you just filed Why not? -- of standing requirements -I was -- I was going to ask you, what an affidavit with the district court

that you intended to file a complaint? MR. LYNCH: QUESTION: MR. LYNCH: We would -­ Would you then be interested? We believe that -- that the minimum

that would be required is some proceeding underway. QUESTION: for So you would agree that there is some just the scope of what an

construing

interested person is. MR. LYNCH: has to have Well, yes. a -a I think the of interested the

place as

right in

proceeding which -that's a district

in which the

aid is sought,

whether a victim

attorney, whether it might be competitor. can walk in

in Israel, whether it's a law, not just anybody

But under European and file these

complaints.

You have to be

a competitor or

a consumer.

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They're

exactly the

same standing

requirements that

we

have under our antitrust law.

And -- and the

commission

has issued regulations which are quite clear, that -- that you must have standing to bring such a complaint. Now -QUESTION: look to So you have to -- you would have to

foreign law to determine whether the person is an

interested person. MR. under 1782. QUESTION: But there has to be a pending be LYNCH: I think that's a U.S. law question

proceeding, you're saying, because you obviously can't a party if there's no proceeding yet. MR. LYNCH: Well, again, to take some

of the a

cases like Justice Ginsburg's case in the D.C. Circuit, proceeding could official file that's what -­ QUESTION: have come Then -- then be in reasonable contemplation to investigate.

when an I think

has been opened

you're saying you could

here even before you filed the -- the complaint

with the commission. MR. LYNCH: complaint with the I'm saying that until you commission, there is not file the

sufficient for an

showing of a

reasonable probability -- anyone to

of a proceeding they are

anyone to claim

claim -- that

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interested party.

I don't

believe that the

commission,

the European Commission, could come in and say -­ QUESTION: proceeding has the future. MR. LYNCH: act that -QUESTION: States law. MR. LYNCH: QUESTION: litigant in -in That -In that respect, sense you are you not a And that's different from United And there has to be some official No, but the contemplation of

got to be present.

Proceeding can

be in

the same

that

would be

required to be a litigant for discovery here. MR. LYNCH: Those were the words I was trying to

get out in answer to your earlier question, that the Ninth Circuit seemed to feel that although the process in Europe is different than it is in the United States and therefore it might not be exactly right to context of U.S. expectation, say we're a party in the a -we're on a

we are in

conveyor belt that inevitably turns us into a party if the process continues in its ordinary course. We don't --

there's nothing we have to do to make this into a -­ QUESTION: discovery and say, Unless well, -we've unless you a get lot your of

learned

interesting things about the other company.

We don't care

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about an antitrust suit now. us. We're not going to

We've got what's valuable to That's

initiate a proceeding.

what they're worried about. MR. LYNCH: U.S. lawsuit. I But that could happen in -- in that cases can any be

mean,

the notion

settled -­ QUESTION: You've got rule 11. You don't have

rule 11 when you're merely in -- in the EC and when you're merely in contemplation of litigation. MR. LYNCH: -- the notion that to Well, with all respect, we don't have an the rule 11 the

obligation to

commission rule 11, that

proceed responsibly

implies

that without

litigation in the United States would have no -­ would be free to do whatever they the a

-- that lawyers The

want to do. commission's

-- the and

-- it's quite regulations

clear under there

rules

that

is

responsibility. QUESTION: Okay. But is that a responsibility sense In

that they can enforce against before you have initiated

you in any practical with

a proceeding

them?

other words, in the

case that they're worried

about, you

-- you get American discovery that as a

to learn interesting things to learn and you drop it

competitor you want

there.

Does the EC have a -- have a means

of, in effect,

calling you to book for that?

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MR.

LYNCH:

Well,

I think

the -- I

think the that

answer is there's no rule.

I can't point to a rule

says that, but the EC has plenary jurisdiction to regulate AMD and other firms doing business within the -- within

the community and they have -- they have the power -­ QUESTION: industries So they can go against from their them as

quite

apart

litigant

MR. LYNCH: QUESTION: MR.

But -- but -Is -- is that -­ Well, I -I would just say it's

LYNCH:

like the inherent power of the court to find contempt that -- that I don't think the EC has had this problem. QUESTION: Yes, but we don't have contempt power

if you're not in court, and that's the problem. MR. LYNCH: But you -but we are in court. court

When we file our complaint with the EC, we're as in as -­ QUESTION: We're talking about the

situation which you

file a complaint,

the situation in

are contemplating the complaint. MR. LYNCH: QUESTION: MR. LYNCH: In our -I -- I -There's nothing yet pending. I'm sorry. I misunderstood your

in our view if you have

not filed a

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complaint with person

the commission, is not a

you're not

an interested a

and there

sufficient

likelihood of be in

proceeding for 1782 context -­ QUESTION:

to apply.

There has to

this

So

you're

adopting

a

pending

proceeding rule then. MR. LYNCH: that Intel complaint a We are saying that whether you call which -- which certainly

proceeding,

and the commission

say it

is not, or

whether you

call it -­ QUESTION: pending -­ MR. LYNCH: -something leading to a But there's got to be something

proceeding, that it is a proximate to

sufficient -- it is sufficiently think that was the way

a proceeding, and I

the Ninth Circuit tried to sort of straddle the problem. QUESTION: MR. LYNCH: QUESTION: Thank you, Mr. Lynch. Thank you. Mr. Minear, we'll hear from you.

ORAL ARGUMENT OF JEFFREY P. MINEAR ON BEHALF OF THE UNITED STATES AS AMICUS CURIAE, SUPPORTING THE RESPONDENT QUESTION: up where -Mr. Minear, would -- would off? Do you take --

where Mr.

Lynch left

you take

would you take

the position that an

interested party has

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got to be a party at least who has filed a complaint? MR. MINEAR: Mr. Chief Justice, and may it

please the Court: Yes, we would agree with the position that an

interested party does need to have a pending proceeding. QUESTION: This interested person and the

proceeding is initiated

doesn't have

to be the

judicial

proceeding or unless I was wrong in -MR. MINEAR: clarify my First answer. If I can go back and -- and try and There's two questions here really.

of all, is there a

proceeding in which -- before a

foreign tribunal, and is there an interested person? In our view, a private person becomes an

interested person when there is a proceeding that is going forward. can, The -- in the case of the tribunal itself, it even that

under section

1782, request

this information

though no complaint has yet that is the way brought by

been filed and we think

that we ensure that there are not actions taken any action any but are being

people who have not discovery

simply seeking present.

without

proceeding

QUESTION:

And you

say tribunal, you're talking the

about the EC because the

court of first instance and

ECJ would not be asking for material. MR. MINEAR: That -- that's correct.

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And I'd like to make three basic points. QUESTION: Before you do that, explain what

you've just -- what you've just said.

It seems to me that

there is no proceeding before a tribunal here yet. MR. MINEAR: QUESTION: commission is We disagree with that, Your Honor. You -- you think that -- that the -­ a tribunal even in the preliminary -- has -- is

stages when it's investigating and -- and is not adjudicating? MR. MINEAR: Yes, we think

it -- it is

and we

can point to several reasons why that is the case. First of all, a textual reason, that the statute section a 1782, makes reference to proceedings criminal

foreign

tribunal,

including

investigations before formal accusations. QUESTION: Yes, but that's -- that's -there than

are criminal investigations Britain and the

in most countries other where the

United States

investigating

magistrate is a judge. MR. MINEAR: QUESTION: That's correct. course, they're a tribunal. The

Of

things here is that the people here are investigators not think of themselves And in addition, as judges. the They are not are not And

who do judges.

proceedings

adversarial, nor are they adjudicative

in any sense.

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that is

all the difference in the world between -- you're bring a -- all we have is

talking -- you think you could

an investigation in France by the police judiciaire. MR. MINEAR: QUESTION: going to start No, Your Honor. going to -- we're It's a big

And suddenly we're -- I

getting all it's a

mean, no.

difference whether judge.

magistrate, a

-- you

know, a

MR. MINEAR: confusion place here is the

Your

Honor, I

think part of

the

procedures Commission.

that are In

actually in I

by the

European

that regard,

suggest that the Court take heed

of the notice concerning

the filing of complaints that's cited on page 13 in note 3 of AMD's brief. the That's an 80-paragraph that document that Commission

describes follows -­

procedures

the European

QUESTION: read through some

Well,

I read through some, up by thinking

my clerk there are

some, and I ended

that are rather

like the FTC, but

then there are a And the what I They as

certain number thing said. are --

that are really as pretty

very different. critical is just

that struck me They do not do not

think of themselves as of what they

judges.

think

are

doing

adjudicatory, and they

don't even have

a way of

walling

off, as we do, the investigators from the adjudicators.

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Now, there

are certain

similarities too.

But

where we have similarities and major differences, maybe we should pay attention to what they want to call themselves. MR. MINEAR: Perhaps, but I would point out the I -- I move on to a

similarities to an adjudication before answer that question.

First of all, a party that files

complaint does not simply send a letter in. must use the complaint form that's

Instead, they They must

described.

set forth all of the information that they have available, and they must establish that they are an interested party. A legitimate is party I think is the term that's used, which the same as a standing requirement.

essentially

There's the

then proceedings in which they participate before Commission, a ultimately leading a to the

European

commission decision.

issuing

letter

indicating

preliminary as well.

They're allowed

to respond

to that

And at that point, the commission then must make a choice. QUESTION: Proceedings in which they participate How do they participate? Primarily in by submitting form. written It's my

before the commission. MR. by MINEAR:

responding

written

understanding there is no hearing before the commission in that first stage, but ultimately there is a decision include

that's produced by the commission that is -- must reasons for their decision, and that is

judicially

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reviewable. Now, that entire process bespeaks, to a

considerable extent, of

an adjudicative type

proceeding.

But even if it's not, it's at least in preparation of what will then be one of two certainly by the adjudicative first

proceedings.

One is

the review

court of

instance, or in the alternative, if the commission decides to go forward with the complaint, a proceeding in which a

statement of objections is then lodged against Intel. My point in describing all this is just to here in

emphasize that Congress

used very broad language

terms of a proceeding before a foreign tribunal because it realized that there's a vast and uncatalogued variety -­ QUESTION: think was It sort of sloughed over a if the point I

pretty critical.

I mean,

commission

itself is not proceeding -- not a tribunal, which I -- you dispute, but if I were to disagree with you about that, would certainly agree with you that the court of I

first

instance and the further reviewing courts are. you run into the to statement which in that there the D.C. must

But there I

case that be

referred

earlier of the

reliable be

indications instituted

likelihood

proceedings will And as to

within a

reasonable time.

those

further court of over in

first instance, the reviewing then -- then -do

court and that

the ECJ,

they meet

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criterion? MR. MINEAR: to me, that goes to Well, that's a question, the district it seems

court's discretion, That's

determining

whether or not to allow the evidence.

not a statutory criteria that you're citing to, but rather I believe that the D.C. Circ was indicating a matter that The statute -­ it would be within we had this statute -- there

informs the discretion. QUESTION: even if the And

only indication

whichever

would ever be a case is there's 1 chance in 50 will be a case 18 years from now. MR. MINEAR: QUESTION: Well, it's -would fall within

that there

That

this statute

and it's just some kind of discretion that keeps it out. MR. MINEAR: The district court has to make that

judgment of whether or not the action -­ QUESTION: Even in the example I just gave? Well, in the example you just gave,

MR. MINEAR: there's been things -I

a complaint that's been filed and one of two can say one of three things will happen. be the

Either a complaint

will be denied

-- ultimately will

denied, in which case there court of

will be an action before

first instance, or else there will be the -- the forward with certainly be the complaint, in an adjudication which

commission will go case there will

against

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Intel, or AMD would withdraw the complaint for some reason that we don't know about. Those are the only three

alternatives.

So certainly under the decision of the D.C. that a -- proceedings are in reasonable

circuit, I think

contemplation, or at a minimum, to be

at least that issue ought

placed before the district court in the exercise of

its discretion. QUESTION: even in the extreme You want 800 judges to review this -- as

case I

mentioned, and unless

long as file a

you can find some in your

favor, you can just go

complaint over there and get all your competitors' and put everybody to about $5 million or $6

documents

million worth of costs, et cetera. MR. MINEAR: we indicate supervisory in our rules By no means at all, Your Honor. believe that can rules of As --

brief, we of practice

be developed

by the

courts to contain and channel the district court's -­ QUESTION: MR. And what's our authority to do that? The authority is the type of

MINEAR:

authority that is described in Thomas v. Arn. that the Court has -has authority to

It's simply

supervise the the

activity and provide

guidance to

district courts in

exercise of their discretion. QUESTION: what guidance to Yes, but how -provide without how are we a great to know deal of

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experience one way or another in -- in the lower courts? MR. MINEAR: Well, we agree with that as well,

and we think that type of guidance at this stage premature. We suggested the Court take this

would be case to

resolve the circuit construction. QUESTION: district

conflict on

a question of

statutory

And so

now we

go back

to the

800

judges and their discretion even

in the kind of

rather extreme case that Justice Breyer describes. MR. MINEAR: Well, Your Honor, the district

courts have been at work at this area and 20 cases now over the past 40 years

there are about that have

in --

construed section 1782, and they -- those cases do provide guidance. We think that the question -- the primary

question this Court needs to answer is, is there a rule of foreign discoverability? And we submit that there's no

such rule evident on the basis of the statute -­ QUESTION: the statute But it's -- it's an odd reading of

that we have these a tribunal and

discoveries for use

in a

proceeding in for our use.

the tribunal said

it isn't

It's counterproductive. Well, Your Honor, I think -­ How can that be for use if it's

MR. MINEAR: QUESTION: counterproductive? MR. MINEAR:

Your Honor,

we need to

pay close

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attention to say.

what the commission said and what it did not if the that's commission does not a very good reason want this for the

Our view is then

information,

district court has not said --

to deny discovery in this case. the commission has not said it which is quite a

The court would not

use this information, If the

different matter. use this

commission said that it

will simply not

information, then that is a reason why section 1782 should not apply. the The information would But we simply not be that the used in -the

proceeding.

think

circumstances here are far less certain. I should back down. point out that this matter has gone

The issue --

a mandate was issued And

while the

petition for certiorari judge has issued a

was pending.

the magistrate district

preliminary order

that the

court has not of discovery

reviewed yet, which has that would be available.

limited the amount And in that course

of that decision,

the magistrate judge did point out that this information -- whether clear whether by it. or not the the

it was not clear whether commission had not

made

information would

be wanted or used

That

was -­

there was uncertainty -­ QUESTION: Now, given their brief in this, which

seems to me could not be more clear -­ MR. MINEAR: The -­

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QUESTION: what we

--

and your belief that this court

looked what

have even

granting some

discovery, even though the principle is they shouldn't -­ MR. MINEAR: QUESTION: But that issue --

-- then what are we supposed to write

that makes real what you -­ MR. MINEAR: you need on to Your Honor, first of resolve rule of the issue all, I think of statutory foreign the

construction

the

the question

of

discoverability. brief on that.

And we've

explained our

views in

QUESTION:

Thank you, Mr. Minear.

Mr. Waxman, you have 3 minutes remaining. REBUTTAL ARGUMENT OF SETH P. WAXMAN ON BEHALF OF THE PETITIONER MR. WAXMAN: The brief, Thank you, Mr. Chief Justice. amicus curiae it wants of the European It a

Commission, states

that what

is reversal.

wants reversal of the decision discretionary, balancing. 1 of 800

that sent this back for judges'

factor-by-factor

Now, everybody considers -- Justice Souter, with respect to your to determine question about how difficult discoverability, So it might be

foreign

everybody agrees going to

that's

a relevant factor.

the question is

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come

up in even

more instances

if you don't

announce a

rule, either by construing interested person or proceeding or for use in, that somehow channels the discretion of

district judges. Justice Kennedy, 18 of pages our blue 36 and 37 and we

particularly footnote think, the authority saying the way you

brief provide, But it's

for instances. do when

basically

you decide

cases involving

discovery

under rule 26.

There are certain instances in

which, since about

we know what the statute -- there's no doubt the statute, it will always be an

the purpose of

abuse of discretion. Now, with this is isn't occur, AMD respect to the question of whether to

a tribunal or and

how soon a this is

tribunal has a point

acquiesced,

made in

footnote 2 of our reply brief on -and this Court granted cert

page 3. on the

They acquiesced second question

presented -- on that there is the

the assumption, as the lower court found, no proceeding before a tribunal now.

Otherwise,

question of how soon

whether it had

the D.C.

Circuit's Second

interpretation of

to be

or the

Circuit's interpretation would have been presented. Similarly, this -- that morning is the first was in -- that time that it is, in

AMD has argued that it

fact, a litigant.

It has always argued that you shouldn't

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read the interested person to require litigant even in the private context because it's only in the title. showered throughout the legislative history, in the text. But the question of when something is a tribunal or when it isn't may determine, as this Court's this morning suggest, lots of very, questions It's only

but it's not

very fact-specific

determinations that have to be examined perhaps on a case­ by-case basis, quote, although we would argue that where the,

tribunal itself says

we're not, a

court ought to

accept it. But if you simply interpret interested person or interpret for use in in the context of a request by a

private party before the request is by

there is any proceeding, an entity that has no

that where rights of

discovery at all, not to at the first stage,

documents, not to testimony, not second stage, and not in

not at the

any subsequent judicial proceeding, we can simply cut this off. It will always be abuse of discretion to come to the

United States and try and get discovery when you're trying to aid a tribunal that doesn't now and never will allow

you to get any discovery. CHIEF JUSTICE Mr. Waxman. The case is submitted. REHNQUIST: Thank -thank you,

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(Whereupon,

at

12:05

p.m., the
case

in

the

above-entitled matter was submitted.)

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