Relevance Issues in the Antitrust Context

• Pages: 55-82

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CHAPTER II

RELEVANCE ISSUES IN THE ANTITRUST

CONTEXT

The admission of evidence in antitrust cases is subject to the general

rules of relevancy and admissibility set forth in the Federal Rules of

Evidence, which provide that relevant evidence is any evidence that

helps lead to the determination of facts necessary to allow the trier of fact

to make a fair and impartial decision. Relevant evidence may be

excluded if unduly prejudicial. In antitrust cases, courts traditionally

have allowed liberal admissibility of evidence in order to shed greater

light on a particularly complex area of the law. This chapter examines the

relevance and admissibility of certain types of evidence frequently at

issue in antitrust cases.

The following Federal Rules of Evidence relate to relevancy issues:

Federal Rule of Evidence 401. Definition of “Relevant Evidence”

“Relevant evidence” means evidence having any tendency to make the

existence of any fact that is of consequence to the determination of the

action more probable or less probable than it would be without the

evidence.

Federal Rule of Evidence 402. Relevant Evidence Generally

Admissible; Irrelevant Evidence Inadmissible

All relevant evidence is admissible, except as otherwise provided by the

Constitution of the United States, by Act of Congress, by these rules, or

by other rules prescribed by the Supreme Court pursuant to statutory

authority. Evidence which is not relevant is not admissible.

Federal Rule of Evidence 403. Exclusion of Relevant Evidence on

Grounds of Prejudice, Confusion, or Waste of Time

Although relevant, evidence may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice, confusion of

the issues, or misleading the jury, or by considerations of undue delay,

waste of time, or needless presentation of cumulative evidence.

56 Antitrust Evidence Handbook

A. Overview of Relevancy

1. Liberal Policy

The liberal policy of the Federal Rules of Evidence favors the

admissibility of evidence if it is relevant and its admission will promote

the ends of justice, a determination left to the broad discretion of the trial

judge. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 587 (1993)

(under Rule 402, the “basic standard of relevance is a liberal one”);

Household Goods Carriers’ Bureau v. Terrell, 452 F.2d 152, 157 (5th

Cir. 1971) (allowing admission of a letter that was the subject of a settled

libel suit which contained threats of an ICC complaint if trucking

association adopted a competitive mileage guide).

2. Liberal Policy in Antitrust Cases

“The general rule favoring admissibility of evidence is particularly

applicable to antitrust cases where the liberal reception of evidence [may

be] necessary for the just determination of singularly complex disputes.”

Commonwealth Edison Co. v. Allis-Chalmers Mfg. Co., 40 F.R.D. 96,

100 (N.D. Ill. 1966) (evidence of actual costs, losses, and profits relevant

to prove price fixing); see also United States v. E.I. Du Pont De Nemours

& Co., 126 F. Supp. 27, 29 (N.D. Ill. 1954) (in antitrust cases “broad

discretion and great latitude toward the reception of evidence should be

exercised”; court admitted forty-five exhibits to allow government to

develop fully background of conspiracy).

B. Evidence of Other Unlawful Conduct

1. General Principle

The admissibility of evidence of other unlawful conduct is within the

discretion of the trial judge. For example, evidence of a conspiracy in

other geographic markets or products has been held relevant and

admissible in several cases. See, e.g., Cont’l Ore Co. v. Union Carbide

Corp., 370 U.S. 690, 699, 704 (1962) (evidence properly admitted that

Continental had been excluded from Canadian market, although only

U.S. firms were defendants; evidence of conspiracy between defendant

and other companies was relevant to plaintiff’s claims; “the character and

effect of a conspiracy are not to be judged by dismembering it and

viewing its separate parts, but only by looking at it as a whole”); United

States v. Southwest Bus Sales, Inc., 20 F.3d 1449, 1456 (8th Cir. 1994)

(evidence of conspiracy committed in another state that was nearly