Obtaining Discovery From Third Parties

• Pages: 53-65

53

CHAPTER IV

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