Chapter VIII. Discovery and Expert Testimony

• Pages: 161-177

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CHAPTER VIII

DISCOVERY AND EXPERT TESTIMONY

Although courts have concluded that the application of the state

action doctrine is a “question of law,”1 predicate factual issues may have

to be determined before the court can rule on the defense. Those issues

may, in turn, require at least some discovery. State action discovery may

be relevant to, or calculated to lead to the discovery of, admissible

evidence concerning (1) whether the challenged restraint is “‘one clearly

articulated and affirmatively expressed as state policy’” and (2) whether

that policy is “‘actively supervised’ by the State itself.”2 Because of the

limited nature of these two tests, the scope of admissible evidence and

discovery might also be limited.

The first prong of the state action doctrine—whether the state policy

is clearly articulated and affirmatively expressed as state policy—rarely,

if ever, presents factual issues subject to discovery. The inquiry is an

objective one “for the fundamental reason that the subjective motivation

of public decision makers is irrelevant to state antitrust immunity

analysis.”3 The irrelevance of the motivation of state actors is a

necessary consequence of the doctrinal underpinning of the doctrine:

Parker was not written in ignorance of the reality that determination of

“the public interest” in the manifold areas of government regulation

entails not merely economic and mathematical analysis but value

1. See, e.g., TEC Cogeneration v. Fla. Power & Light Co., 76 F.3d 1560, 1567

(11th Cir.), modified on reh’g, 86 F.3d 1028 (11th Cir. 1996); Yeager’s

Fuel v. Pa. Power & Light Co., 22 F.3d 1260, 1265 (3d Cir. 1994); Berger

v. Cuyahoga County Bar Ass’n, 983 F.2d 718, 721 (6th Cir. 1993).

2. Cal. Retail Liquor Dealers Ass’n v. Midcal Aluminum, 445 U.S. 97, 105

(1980) (quoting City of Lafayette v. La. Power & Light Co., 435 U.S. 389,

410 (1978)).

3. Hancock Indus. v. Schaeffer, 811 F.2d 225, 234 (3d Cir. 1987) (citing

Hoover v. Ronwin, 466 U.S. 558, 581 n.34 (1984)).

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judgment, and it was not meant to shift that judgment from elected

officials to judges and juries.4

Thus, as the Supreme Court stated in City of Columbia, “if the courts

were to apply a subjective test: not whether the action was in the public

interest, but whether the officials involved thought it to be so . . . [t]his

would require the sort of deconstruction of the governmental process and

probing of the official ‘intent’ that we have consistently sought to

avoid.”5 This is consistent with the principle the Court has stated

repeatedly outside the antitrust arena: “it [is] not consonant with our

scheme of government for a court to inquire into the motives of

legislators.”6

In analyzing whether the first prong of the state action defense has

been established, the courts limit themselves to the usual sources for

determining the intent of government legislators and officials, including

statutes, rules, regulations, legislative history, court decisions, and

administrative rulings and pronouncements.7 However, it is generally

viewed as inappropriate to consider statements of government officials as

to their past intention in taking government action, and courts may not

give any weight to “post-passage remarks of legislators, however

explicit.”8

4. City of Columbia v. Omni Outdoor Adver., 499 U.S. 365, 377 (1991).

5. Id.

6. Tenney v. Brandhove, 341 U.S. 367, 377 (1951) (citing Fletcher v. Peck,

10 U.S. (6 Cranch) 87, 130-31 (1810)).

7. See, e.g., Columbia Steel Casting Co. v. Portland Gen. Elec. Co., 111 F.3d

1427, 1437-38 (9th Cir. 1997) (relying on state statutes and public orders of

public utility commission); TEC Cogeneration v. Fla. Power & Light Co.,

76 F.3d 1560, 1568 (11th Cir.), modified on reh’g, 86 F.3d 1028 (11th Cir.

1996) (state statutes and regulatory rules, agency proceedings and orders,

and Florida Supreme Court case law); Praxair, Inc. v. Fla. Power & Light

Co., 64 F.3d 609, 611-12 (11th Cir. 1995) (state statutes, case law, and

regulatory provisions); Hardy v. City Optical, 39 F.3d 765 (7th Cir. 1994)

(state statute and regulation); Yeager’s Fuel v. Pa. Power & Light Co., 22

F.3d 1260, 1266-70 (3d Cir. 1994) (statutes, state administrative rules, and

public utility commission reports, rulings, and public statements).

8. Blanchette v. Conn. Gen. Ins. Corp., 419 U.S. 102, 132 (1974); see also

Benjamin v. Fraser, 343 F.3d 35, 48 n.14 (2d Cir. 2003) (“statements not

made during the legislative process, but after the statute becomes law, are

unreliable aids to statutory construction”); Columbia Steel Casting Co. v.

Portland Gen. Elec. Co., 60 F.3d 1390, 1398 n.8 (9th Cir. 1995)