Obtaining Documents And Written Discovery
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CHAPTER II
OBTAINING DOCUMENTS
AND WRITTEN DISCOVERY
Although Federal Rule of Civil Procedure 26 mandates certain
disclosures of information and documents, discovery methods such as
interrogatories, document requests, and requests for admission continue to
be important tools in antitrust litigation. Focusing on written and
document discovery from parties (depositions are discussed in Chapter 3
and third-party discovery is discussed in Chapter 4), this chapter discusses
the scope of discovery in the context of antitrust cases, the mandatory
disclosures required by Rule 26, and strategies related to document
requests, interrogatories, and requests for admission.
A. The Scope of Discovery
In general, information sought via discovery need not itself be
admissible, provided that it is relevant and reasonably calculated to lead to
the discovery of admissible evidence.1 Rule 26(a)(1) requires parties to
disclose certain information at the start of the litigation, before any formal
discovery requests are served.2 Some courts have interpreted the standard
of discoverability under the Federal Rules of Civil Procedure broadly in
antitrust cases, citing the public importance of the decision, the need for a
large corporation to know which of its many activities is being challenged,
and the issue-narrowing function of discovery.3 In addition, courts have
taken the view that because the facts of a conspiracy may be largely in the
possession and within the knowledge of the defendant, and the defendant
1. FED. R. CIV. P. 26(b)(1).
2. FED. R. CIV. P. 23(a)(1).
3. See, e.g., In re Urethane Antitrust Litig., 261 F.R.D. 570, 573 (D. Kan.
2009) (“Relevancy is broadly construed for pretrial discovery purposes.”);
see also Bass v. Gulf Oil Corp., 304 F. Supp. 1041, 1046-47 (S.D. Miss.
1969).
10 Antitrust Discovery Handbook
has the ability to conceal these facts from the adversary, discovery rules
should be liberally applied.4
At the same time, courts have expressed concern regarding the
significant burden and expense of discovery in antitrust cases. In Bell
Atlantic Corp. v. Twombly,5 for example, the United States Supreme Court
cautioned that the threat of extensive discovery may pressure a defendant
to settle even claims of minimal merit. 6 Other courts have limited
discovery because of the burdens it would impose on the defendant.7
Federal Rule of Civil Procedure 26(b)(1) distinguishes between
party-controlled discovery of matters relevant to a “claim or defense” and
court-controlled discovery of materials relevant to the “subject matter” of
the action. A party may still obtain discovery of materials “relevant to the
subject matter” (the former standard) but only upon a showing of good
cause and approval by the court. 8 Accordingly, there may be three
components of discovery under the federal rules: (1) mandatory
disclosure of information that a party may use to support its claims or
defenses; (2) party-controlled discovery of matters relevant to claims or
defenses; and (3) court-supervised discovery of materials “relevant to the
subject matter” of the action.
4. See, e.g., In re Microcrystalline Cellulose Antitrust Litig., 221 F.R.D. 428,
429-30 (E.D. Pa. 2004) (“[A] broad scope of discovery is particularly
appropriate in antitrust litigation because, for example, relevant business
documents pertaining to the antitrust conspiracy may not exist and covert
behavior may have to be proven through less direct means.”); see also
Goldinger v. Boron Oil Co., 60 F.R.D. 562, 564 (W.D. Pa. 1973).
5. 550 U.S. 544 (2007).
6. Id. at 558-59 (“[T]he threat of discovery expense will push cost-conscious
defendants to settle even anemic cases” before reaching the summary
judgment stage or trial); see also Kendall v. Visa U.S.A., 518 F.3d 1042,
1047 (9th Cir. 2008) (“[D]iscovery in antitrust cases frequently causes
substantial expenditures and gives the plaintiff the opportunity to extort
large settlements even where he does not have much of a case.”) (citing
Twombly, 550 U.S. at 558-59).
7. See, e.g., In re ATM Fee Antitrust Litig., 2007 U.S. Dist. LEXIS 47943, at
*11 (N.D. Cal. 2007) (“Although the discovery rules entitled Plaintiffs to
seek all material ‘reasonably calculated to lead to the discovery of
admissible evidence,’ their theoretical entitlement yields to practical
considerations when ‘the burden or expense of the proposed discovery
outweighs its likely benefit.’”) (quoting FED. R. CIV. P. 26(b)(2)(C)(iii)).
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