Obtaining Discovery From Third Parties

Counsel on either side of an antitrust case can make use of evidence
obtained from nonparties in support of their litigation positions. Chapter 4
discusses various methods of conducting third party discovery, but
particularly focuses on the utility of issuing Rule 45 subpoenas in antitrust
cases, particularly to competitors, customers, or other nonparty market
participants, as well as to government agencies.
A. Informal Investigations
In creating a comprehensive discovery plan, counsel should carefully
consider how best to incorporate informal discovery techniques. Informal
discovery can offer a number of advantages over the use of subpoenas. For
example, the lawyer can gather information without notifying the
opposing party. Informal discovery can be very efficient. It can lead to
documents and information that is unfiltered and untainted by the
litigation interests of the parties. Counsel may also find that third-party
witnesses are more candid and open in private conversations than they are
at a deposition.
There are a variety of sources of third-party information and data. The
web is a powerful information resource, and simple web searches can
return a wealth of information. Studies, articles, speeches and
presentations addressing competitive issues may be posted online. Web
searches can also assist counsel in identifying and locating former
employees. Public databases, commercial databases, and trade
associations can provide substantial insights into a particular industry.
Think tanks and scholars may have collected, surveyed and analyzed
industry data and market trends.
Informal interviews of third-party witnesses can yield important
insights into the competitive effects of business practices in the real world.
Parties may have long-standing and close relationships with customers
and suppliers who often may be willing to speak informally with counsel
about the impact of a challenged business practice on them. Counsel
should consider whether it is appropriate to request an affidavit from a

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