Discovery of European Commission Materials in U.S. Civil Antitrust Litigation : An Update

Private plaintiffs in U.S. civil litigation seeking damages alleged to have resulted from cartel activities often view the European Commission’s case file as an important source of evidence against cartel participants and seek through U.S. discovery procedures to obtain access to materials in the Commission’s file. However, Commission regulation prohibits defendants from disclosing this material to third parties. Defendants are therefore compelled to resist this discovery—and typically do. This note seeks to explore the outcomes of cases in which defendants, with or without the Commission’s support, have resisted efforts to produce materials from the Commission’s file