Confidential records: to share or not to share?

• Author: Swartz, Nikki
• Position: Up front: news trends & analysis

Can foreign companies use U.S. courts to get information about American companies not available under the rules of foreign boards?

American companies that conduct business overseas can be investigated at any time by agencies in other countries, reported the National Association of Manufacturers, but those agencies often have more limited rules for information gathering than what is allowed in U.S. courts. So if and/or when U.S. companies can be ordered to release confidential records to foreign bodies is far from clear.

The U.S. Supreme Court is expected to tackle the issue this year when it hears arguments in the case Intel Corp. v. Advanced Micro Devices Inc. The high court recently stepped into a dispute between the two high-tech competitors, agreeing to clarify when U.S. companies can be required to release confidential records to foreign regulators.

Intel Corp. is fighting a California appeals court ruling that may force it to release documents to the European Commission, a regulatory board that enforces European Union antitrust law. The commission has conducted a preliminary investigation of Intel, based on an antitrust complaint by rival Advanced Micro Devices Inc. The competitor contends that Intel abused its position as the world's leading computer-chip maker to keep other companies from winning market share in Europe.

In 2001, Advanced Micro Devices asked a federal judge in California to help them get documents from Intel to give to the European Commission. The judge refused to help in the company's request for documents...