Chapter V. Discovery

• Pages: 103-125

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CHAPTER V

DISCOVERY

At first glance, discovery in an indirect purchaser case appears to

differ little from discovery in any other commercial case: the parties

seek to obtain documents and information on relevant issues; they object

where the burden of an opponent’s request appears too great; and they

resolve most issues through compromise, rather than litigating all the

way to judicially ordered results. As the Antitrust Modernization

Commission (AMC) has recognized, however, indirect purchaser

litigation presents unique challenges arising from the existence of

multiple related lawsuits, including discovery coordination issues.395

Perhaps the most obvious distinction between discovery in indirect

purchaser cases and that conducted in other types of commercial

litigation is the difference in size and degree of discovery sought.396 But

indirect purchaser litigation can also differ from discovery in other

commercial litigation in more material ways than just the size and scope

of the requested information. First, much of the discovery may already

have been conducted in the companion direct purchaser litigation, which

often commences sooner than the indirect litigation.397 Second, if the

395. See Antitrust Modernization Commission Staff, Civil Remedies—Indirect

Purchaser Discussion Memorandum (hereinafter “AMC Discussion

Memorandum”), at 5 (May 4, 2006) (available at http://www.amc.gov/pdf

/meetings/CivRem-IndP_DiscMemo06050 4-fin.pdf).

396. See, e.g., In re Cardizem CD Antitrust Litig., 218 F.R.D. 508, 514-15

(E.D. Mich. 2003) (describing discovery proceedings where private

plaintiffs and state attorneys general “reviewed hundreds of boxes of

Defendants’ and third parties’ documents (over one million pages were

produced), reviewed over 50 statements taken under oath by the FTC, and

took more than 25 oral depositions of witnesses, including senior

executives of Defendants, market forecasters, and scientists”; state

attorneys general “coordinated data and document production efforts for

over 120 separate governmental entities”; parties conducted more than

30 meet-and-confer sessions and brought at least 11 discovery-related

motions).

397. If discovery has already been conducted in the prior direct purchaser

action, then production of that discovery to the indirect purchaser

plaintiffs often dramatically limits the discovery that needs to be

conducted in the indirect purchaser case. One issue that generally needs

resolution before such transfer of discovery is the protective order that

104 Indirect Purchaser Litigation Handbook

discovery has not already been conducted in the direct purchaser

litigation, then the indirect purchaser discovery generally needs to be

coordinated with discovery in indirect purchaser litigation pending in

other state courts or in a federal MDL court.398 As discussed

elsewhere,399 however, the Class Action Fairness Act of 2005 may result

in the removal of more cases to federal court, thus reducing the need for

coordination among multiple state courts.400 Third, the indirect nature of

the claim often means that much of the potentially relevant information

will be found outside the parties’ possession or control.

This Chapter begins with consideration of some of the other

procedural issues common to indirect purchaser litigation and then

addresses the potential points of difference identified above. Then this

Chapter discusses issues arising in the context of class-action discovery

and other selected discovery topics.401

A. Bifurcation and Timing of Discovery

Many indirect purchaser cases are brought as putative class actions,

and the decision on whether a class will be certified will fundamentally

shape the remainder of the case. Consequently, courts will often choose

to bifurcate402 discovery between “class certification” issues and “merits”

will normally need to be modified to facilitate sharing of the discovery

between the direct and indirect cases.

398. For a discussion of issues involved in multijurisdiction litigation, see

Chapter VIII (Management of Multidistrict Litigation).

399. See Chapter IV (Jurisdictional and Choice-of-Law Issues).

400. Class Action Fairness Act of 2005, Pub. L. No. 109-2, 119 Stat. 4 (2005).

401. For a discussion of civil discovery in antitrust matters generally, see ABA

SECTION OF ANTITRUST LAW, ANTITRUST DISCOVERY HANDBOOK (2d ed.

2003) (hereinafter, “DISCOVERY HANDBOOK”).

402. For discussions of bifurcation and current proposals for “modernization”

of the antitrust laws, see ABA Section of Antitrust Law, Response To

Antitrust Modernization Commission June 12, 2006 Request For Public

Comment On Civil Remedies at 4 (Jul. 19, 2006) (available at

http://www.amc.gov/public_studies_ fr28902/remedies_pdf/060719-

ABA_civil_remedies.pdf) (“[T]he proposal for consolidation of state and

federal claims in a single federal forum assumed that courts would

address these three elements—liability, total damages and allocation—in

an efficient manner, which might or might not include bifurcation or

trifurcation.”); Stephen Armstrong, Comments On Civil Remedies

Proposals And Topics Announced June 12, 2006 at 17 (available at

http://www.amc.gov/public_studies_fr28902/ remedies_pdf/ 060710-