Case 3:14-cv-03264-JD Document 1100 Filed 03/09/16 Page 1 of 16
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`Joseph R. Saveri (State Bar No. 130064)
`Joshua P. Davis (State Bar No. 193254)
`Andrew M. Purdy (State Bar No. 261912)
`Matthew S. Weiler (State Bar No. 236052)
`James G. Dallal (State Bar No. 277826)
`Ryan J. McEwan (State Bar No. 285595)
`JOSEPH SAVERI LAW FIRM, INC.
`555 Montgomery Street, Suite 1210
`San Francisco, California 94111
`Telephone: (415) 500-6800
`Facsimile: (415) 395-9940
`Email:
`jsaveri@saverilawfirm.com
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`jdavis@saverilawfirm.com
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`apurdy@saverilawfirm.com
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`mweiler@saverilawfirm.com
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`jdallal@saverilawfirm.com
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`rmcewan@saverilawfirm.com
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`Interim Lead Class Counsel for Direct Purchaser Plaintiffs
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`Joseph W. Cotchett (State Bar No. 36324)
`Steven N. Williams (State Bar No. 175489)
`Adam J. Zapala (State Bar No. 245748)
`Elizabeth Tran (State Bar No. 280502)
`COTCHETT, PITRE & McCARTHY, LLP
`840 Malcolm Road
`Burlingame, CA 94010
`Telephone: (650) 697-6000
`Facsimile: (65) 697-0577
`Email: jcotchett@cpmlegal.com
`swilliams@cpmlegal.com
`azapala@cpmlegal.com
`etran@cpmlegal.com
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`Interim Lead Class Counsel for Indirect Purchaser Plaintiffs
`[Additional Counsel on Signature Page]
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`SAN FRANCISCO DIVISION
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`IN RE CAPACITORS ANTITRUST LITIGATION
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`THIS DOCUMENT RELATES TO ALL DIRECT
`PURCHASER ACTIONS AND FLEXTRONICS’S
`ACTION
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`Master File No. 3:14-cv-03264-JD
`PLAINTIFFS’ MOTION TO COMPEL
`DOCUMENTS PRODUCED TO
`FOREIGN REGULATORY
`AUTHORITIES
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`Date: May 4, 2016
`Time: 10:00 a.m.
`Courtroom: 11, 19th Floor
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`Master File No. 3:14-cv-03264-JD
`PLAINTIFFS’ MOTION TO COMPEL PRODUCTION OF DOCUMENTS PRODUCED TO FOREIGN REGULATORY
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`Case 3:14-cv-03264-JD Document 1100 Filed 03/09/16 Page 2 of 16
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`NOTICE OF MOTION
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`PLEASE TAKE NOTICE that on Wednesday, May 4, 2016 at 10 a.m., or as soon thereafter as
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`these motions may be heard, in Courtroom 11, 19th Floor, 450 Golden Gate Avenue, before the
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`Honorable James Donato, the Direct Purchaser Plaintiffs, Indirect Purchaser Plaintiffs, and Flextronics
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`International USA, Inc. (collectively, “Plaintiffs”) will and hereby do move the Court, pursuant to Rules
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`26 and 37 of the Federal Rules of Civil Procedure, for an Order compelling production of documents
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`produced to foreign regulatory authorities. The Motion is based on this notice of motion, the attached
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`memorandum of points and authorities, the pleadings on file, the Declaration of Joseph R. Saveri filed
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`herewith, oral argument of counsel, and such other materials and argument as may be presented in
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`connection with this Motion.
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`STATEMENT OF ISSUE PRESENTED
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`Whether Defendants should be ordered to produce to Plaintiffs documents they have produced
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`to foreign regulatory authorities.
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`Master File No. 3:14-cv-03264-JD
`PLAINTIFFS’ MOTION TO COMPEL PRODUCTION OF DOCUMENTS PRODUCED TO FOREIGN REGULATORY
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`I. 
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`II. 
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`III. 
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`Case 3:14-cv-03264-JD Document 1100 Filed 03/09/16 Page 3 of 16
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`TABLE OF CONTENTS
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`Page(s)
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`INTRODUCTION ....................................................................................................................... 1 
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`BACKGROUND ........................................................................................................................... 2 
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`ARGUMENT ................................................................................................................................ 4 
`A. 
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`Legal Standard ................................................................................................................... 4 
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`B. 
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`There is No Valid Objection to Production Because No Foreign Regulator has
`Actually Objected .............................................................................................................. 6 
`1. 
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`The Unidentified Communications from the KFTC and NDRC Are Not
`A Proper Basis for Non-Compliance ...................................................................... 6 
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`2. 
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`3. 
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`4. 
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`5. 
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`The European Commission Does Not Object to Production of the
`Specific Documents at Issue ................................................................................... 7 
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`International Comity Concerns Do Not Prevent Production .................................. 7 
`a. 
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`The Documents Sought Are Highly Relevant ............................................ 7 
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`b. 
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`c. 
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`d. 
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`The Documents at Issue Are Narrowly Defined ......................................... 8 
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`The Origin of the Materials Is Immaterial .................................................. 8 
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`There is No Substitute for the Documents Sought Here ............................ 8 
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`Strong U.S. Policy of Enforcing Antitrust Laws and Protecting Plaintiffs
`Favors Production and There is No Showing of Hardship to a Foreign
`Regulator ................................................................................................................ 9 
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`The Court Should Order Documents Produced to, or Seized by, Other
`Regulators .............................................................................................................. 9 
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`IV. 
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`CONCLUSION .......................................................................................................................... 10 
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`Case 3:14-cv-03264-JD Document 1100 Filed 03/09/16 Page 4 of 16
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`TABLE OF AUTHORITIES
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`Page(s)
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`Cases 
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`Hawaii v. Standard Oil, 405 U.S. 251 (1972) ............................................................................................ 9
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`In re Air Cargo Shipping Servs. Antitrust Litig., 2010 U.S. Dist. LEXIS 75974 (E.D.N.Y.
`July 23, 2010)................................................................................................................................. 8, 9
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`In re Air Cargo Shipping Servs. Antitrust Litig., 278 F.R.D. 51 (E.D.N.Y. 2010) ........................................ 9
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`In re Cathode Ray Tube (CRT) Antitrust Litig., 2014 U.S. Dist. LEXIS 151222 (N.D. Cal.
`Oct. 23, 2014) ................................................................................................................................ 5, 7
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`Jordan v. Paul Fin., LLC, 285 F.R.D. 435 (N.D. Cal. 2012) ..................................................................... 6
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`Petroleum Sales, Inc. v. Valero Ref. Co. - Cal., 2006 U.S. Dist. LEXIS 90419 (N.D. Cal.
`Dec. 14, 2006) ................................................................................................................................... 6
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`Richmark Corp. v. Timber Falling Consultants, 959 F.2d 1468 (9th Cir. 1992) .................................... 5, 7, 9
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`Societe Nationale Industrielle Aerospatiale v. U.S. Dist. Court for S. Dist. of Iowa, 482 U.S.
`522 (1987) .......................................................................................................................................... 5
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`United States v. Vetco, Inc., 691 F.2d 1281 (9th Cir. 1981) .......................................................................... 5
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` Rules 
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`Fed. R. Civ. P. 1 ....................................................................................................................................... 1
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`Fed. R. Civ. P. 26(b)(1) ............................................................................................................................ 4
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`Fed. R. Civ. P. 37 ..................................................................................................................................... 5
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`Master File No. 3:14-cv-03264-JD
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`PLAINTIFFS’ MOTION TO COMPEL PRODUCTION OF DOCUMENTS PRODUCED TO FOREIGN REGULATORY
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`Case 3:14-cv-03264-JD Document 1100 Filed 03/09/16 Page 5 of 16
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`I.
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`INTRODUCTION
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`Direct Purchaser Plaintiffs (“DPPs”), Indirect Purchaser Plaintiffs’ (“IPPs”), and Flextronics
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`International USA, Inc. (collectively, “Plaintiffs”) seek to compel production of documents that
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`Defendants turned over to, or were seized by, foreign regulators or competition authorities outside the
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`United States, including the Korean Fair Trade Commission (“KFTC”), the People’s Republic of
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`China’s National Development and Reform Commission (“NDRC”), Taiwanese Fair Trade
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`Commission, the Japanese Fair Trade Commission (“JFTC”), Brazil’s Council for Economic Defense
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`(“CADE”), the Competition Commission of Singapore (“CCS”), and the European Commission. A
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`number of Defendants state that the KFTC, NDRC, or European Commission have objected to the
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`production of documents covered by the Court’s order addressing documents produced to, or seized by,
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`such foreign regulators and have apparently withheld documents from production on this basis. See Dkt.
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`953. In fact, as demonstrated below, no foreign regulator has submitted a written objection to the
`discovery.1 Defendants’ descriptions of the foreign regulator positions are not legitimate objections and
`are, at most, unreliable hearsay evidence insufficient to prevent the requested discovery.
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`As to the KFTC and the NDRC, Defendants have produced no evidence of any objection but
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`rely only on their own characterizations of the KFTC’s and the NDRC’s positions. Indeed, the
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`European Commission, the only regulator to address this issue in writing, does not oppose the discovery
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`sought here. The letter Defendants produced from the European Commission unambiguously concedes
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`that documents that “pre-exist” the Commission’s investigation—exactly those sought here—are not
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`protected by European Union law against production. See August 24, 2015 Letter from Eric Van
`Ginderachter (“EC Letter”), Dkt. 952-1 at 3.2 No objections from the Taiwanese Fair Trade
`Commission, JFTC, CCS, or CADE have even been identified. Thus the objections should be overruled
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`1 No foreign regulator has sought to intervene in these proceedings or otherwise appear. Plaintiffs have
`filed this as a formal motion to provide these regulators with an opportunity to be heard if they so desire
`it. If past is prologue, the regulators will take no action. DPPs have an interest in the orderly progress of
`the litigation and seek the production of the materials without further delay. See Fed. R. Civ. P. 1.
`2 Indeed, no Defendant appears to presently be standing on this letter as a basis to refuse production.
`DPPs are meeting and conferring with one Defendant concerning objections raised in the EC Letter, but
`no issues are ripe at this time.
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`Master File No. 3:14-cv-03264-JD
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`PLAINTIFFS’ MOTION TO COMPEL PRODUCTION OF DOCUMENTS PRODUCED TO FOREIGN REGULATORY
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`Case 3:14-cv-03264-JD Document 1100 Filed 03/09/16 Page 6 of 16
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`and the Court should order documents produced to, or seized by, any other foreign regulator to be
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`produced in these actions.
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`Even if a foreign regulator or foreign law had specifically forbade production here, the balancing
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`test adopted by the Ninth Circuit compels production in these circumstances because the documents
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`sought are central to Plaintiffs’ case, and principles of comity do not prevent production of pre-existing
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`documents sought here. See infra. at 7-8. Indeed, there is no dispute concerning the relevance of the
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`documents at issue.
`II.
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`BACKGROUND
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`Competition authorities and regulators throughout the world have investigated Defendants’
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`cartel behavior. SAC ¶¶ 372-384. These include authorities in the United States, China, Japan, South
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`Korea, Taiwan, Brazil, Singapore, and the European Union. Id. Some of the Defendants have
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`acknowledged cooperating with or being investigated by foreign antitrust agencies. Id.
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`Plaintiffs’ Request for Production of Documents Number 33 (“Request 33”) calls for
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`Defendants to produce all documents “voluntarily submitted” to the US Department of Justice, other
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`US government agencies, or “any Foreign Antitrust Authority in connection with, or in response to, any
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`criminal or civil investigation concerning Capacitors,” as well as documents seized by these authorities.
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`Saveri Decl., Ex. 1. The KFTC, NDRC, JFTC, Taiwanese Fair Trade Commission, CADE, CCS, and
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`European Commission are within the definition of “Foreign Antitrust Authority.”
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`Defendants submitted general objections to Request 33, suggesting that production would
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`violate unspecified foreign laws, principles of international comity, and purported “confidentiality rules
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`or policies of any Foreign Antitrust Authority.” NEC Tokin’s Responses & Objections to Request 33 at
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`12, Saveri Decl., Ex. 1.
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`After considerable negotiations between and among the parties, on November 16, 2015 the
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`Court entered the Stipulation and Order Regarding Discovery of Documents Produced to Non-U.S.
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`Antitrust Enforcement. Dkt. 953 (“Order”). Under the terms of the Order, Defendants had sixty days
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`from November 16 to disclose any objections to the production of documents provided to or seized by
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`foreign antitrust enforcement personnel. See Order, ¶ 2(b). The Order further requires that “the
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`defendant shall promptly disclose to Plaintiffs which enforcement authority has asserted an objection
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`Master File No. 3:14-cv-03264-JD
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`PLAINTIFFS’ MOTION TO COMPEL PRODUCTION OF DOCUMENTS PRODUCED TO FOREIGN REGULATORY
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`Case 3:14-cv-03264-JD Document 1100 Filed 03/09/16 Page 7 of 16
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`and will provide Plaintiffs with sufficient information about the nature of the objection to allow
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`Plaintiffs, if they choose to bring a motion to overrule any such objection or to compel production of the
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`records, to apprise the Court of the nature of the enforcement authority’s objection.” Id.
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`On November 16, 2015, Defendant NEC Tokin Corporation (“NEC Tokin”) filed a submission
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`attaching a letter dated August 24, 2015 from the Director of the Cartels Directorate of the European
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`Commission stating the European Commission’s position that “material prepared for the purpose of
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`making corporate statements pursuant to the Commission's Leniency Notice” and “documents
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`specifically created by NEC TOKIN or by the Commission in the framework of ongoing proceedings in
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`case” should not be produced. Id. The letter further states that while “pre-existing documents are not,
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`as such, protected from disclosure by EU law,” the European Commission expresses “serious
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`concerns” with document requests “generically formulated by reference to the Commission’s file.” Id.
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`On January 15, 2016, counsel for NEC Tokin wrote to Plaintiffs, stating that the KFTC “stated
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`that it will not allow NEC TOKIN to submit the documents to any third party, including the U.S.
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`Court, because that would be inappropriate from the perspective of international comity and also
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`interfere with the implementation of the leniency system meant to encourage companies to cooperate
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`with the KFTC’s ongoing investigation. Our client’s counsel in South Korea asked the KFTC to state
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`its objection in writing, but the KFTC has declined to do so.” Jan. 15, 2016 Email from M. Parrott to J.
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`Saveri, Saveri Decl., Ex. 2.
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`On January 22, 2016, after the expiration of the sixty days set forth in the Order, counsel for
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`DPPs wrote to all Defendants and asked that they produce the documents required by the Order. See
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`Saveri Decl., ¶ 7 & Ex. 3. Other Defendants subsequently provided untimely communications referring
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`to communications received from the KFTC and NDRC.
` On January 25, 2016, counsel for the Hitachi Defendants stated that the KFTC “has
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`objected to the production of materials submitted to the agency.” Jan. 25, 2016 Letter
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`from J. Bank to J. Saveri Decl., Ex. 4. It is unclear whether the KFTC had itself made
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`this objection to the Hitachi Defendants, and no statement from the KFTC was
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`provided. The Hitachi Defendants provided no explanation for their tardiness.
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`Master File No. 3:14-cv-03264-JD
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`PLAINTIFFS’ MOTION TO COMPEL PRODUCTION OF DOCUMENTS PRODUCED TO FOREIGN REGULATORY
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`Case 3:14-cv-03264-JD Document 1100 Filed 03/09/16 Page 8 of 16
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` On January 26, 2016, Defendant NEC Tokin stated that “the [NDRC] has objected to
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`NEC TOKIN producing the documents that it provided to the NDRC. The NDRC
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`made its objection prior to January 15, 2016, but there was a delay in that being
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`communicated to us. Our understanding is that the NDRC did not provide a rationale
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`for its objection and it does not intend to put it in writing.” Jan. 26, 2016 Email from M.
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`Parrott to J. Saveri, et al., Saveri Decl., Ex. 5.
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`Other Defendants had previously objected to producing documents from the European
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`Commission, KFTC, or NDRC. Saveri Decl., ¶¶ 10-11. After meeting and conferring with counsel for
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`DPPs, some Defendants represented that they would produce these documents, and some stated that
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`they were withholding no ordinary course documents from these foreign regulators. Id. Several other
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`Defendants have objected to producing ordinary course documents to the European Commission,
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`KFTC, or NDRC, and DPPs are continuing to meet and confer regarding these objections. Id. As these
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`same issues are raised by the Hitachi Defendants and NEC Tokin, however, this motion is ripe for
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`resolution.
`III. ARGUMENT
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`The Court should overrule Defendants’ objections and compel the production of documents
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`Defendants produced to or seized by foreign regulators, including business records kept in the ordinary
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`course of business responsive to Request 33. In particular, as provided by the Order, Plaintiffs seek the
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`productions of documents Defendants produced to, or were seized by, foreign regulators, which are
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`exclusively business records kept in the ordinary course that pre-dated the investigations. There is no
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`valid objection to production of these documents.
`A.
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`Legal Standard
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`Under the Federal Rules, “[p]arties may obtain discovery regarding any non-privileged matter
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`that is relevant to any party's claim or defense and proportional to the needs of the case… .” Fed. R.
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`Civ. P. 26(b)(1). When assessing the needs of a case, it is appropriate to consider the “importance of the
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`issues at stake in the action, the amount in controversy, the parties’ relative access to relevant
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`information, the parties’ resources, the importance of the discovery in resolving the issues, and whether
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`the burden or expense of the proposed discovery outweighs its likely benefit.” Id. For good cause, the
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`Master File No. 3:14-cv-03264-JD
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`PLAINTIFFS’ MOTION TO COMPEL PRODUCTION OF DOCUMENTS PRODUCED TO FOREIGN REGULATORY
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`Court may order discovery of any matter relevant to the subject matter involved in the action where a
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`party has not produced relevant discovery sought by a proper request. See Fed. R. Civ. P. 37(a)(2).
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`Request 33 seeks documents that are highly relevant, as it seeks in relevant part documents produced to
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`“any Foreign Antitrust Authority” in connection with civil and criminal capacitors investigations. See
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`Saveri Decl., Ex. 1. This request is narrowly tailored and calls for the production of discovery materials
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`directly relevant to Plaintiffs’ claims.
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`Courts do not ordinarily allow parties to “excuse compliance with an American discovery
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`request” just because a foreign regulator even formally objects or intervenes in the litigation. See In re
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`Cathode Ray Tube (CRT) Antitrust Litig., 2014 U.S. Dist. LEXIS 151222, *57 (N.D. Cal. Oct. 23, 2014).
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`Only when it is clear that a discovery request conflicts with a foreign law on discoverability do courts
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`employ a balancing test to determine whether to order production of documents that have been
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`produced to, or created by, foreign government agencies. Societe Nationale Industrielle Aerospatiale v.
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`U.S. Dist. Court for S. Dist. of Iowa, 482 U.S. 522, 546 (1987); Richmark Corp. v. Timber Falling
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`Consultants, 959 F.2d 1468, 1475 (9th Cir. 1992) (upholding order compelling disclosure of information
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`subject to secrecy law). Even assuming arguendo that a valid objection has been filed by a foreign
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`regulator, responsive documents may be produced after consideration of factors in a balancing test that
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`includes the following:
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`(1) the importance to the . . . litigation of the documents or other
`information requested;
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`(2) the degree of specificity of the request;
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`(3) whether the information originated in the United States;
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`(4) the availability of alternative means of securing the information; and
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`(5) the extent to which noncompliance with the request would undermine
`important interests of the United States, or compliance with the request
`would undermine important interests of the state where the information is
`located.
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`Aerospatiale, 482 U.S. at 544, n. 28 (quotation marks and citation omitted). While consideration of
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`similar foreign interests may be appropriate, the Ninth Circuit has held a court must also consider “the
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`extent and the nature of the hardship that inconsistent enforcement would impose upon the person, . . .
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`[and] the extent to which enforcement by action of either state can reasonably be expected to achieve
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`Master File No. 3:14-cv-03264-JD
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`Case 3:14-cv-03264-JD Document 1100 Filed 03/09/16 Page 10 of 16
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`compliance with the rule prescribed by that state.” United States v. Vetco, Inc., 691 F.2d 1281, 1287 (9th
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`Cir. 1981); see also Richmark, 959 F.2d at 1475. So that the nature of an interest can be evaluated under
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`the foregoing framework, the foreign regulator should intervene or appear to assist and litigate its
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`interests.
`B.
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`There is No Valid Objection to Production Because No Foreign Regulator has
`Actually Objected
`1.
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`The Unidentified Communications from the KFTC and NDRC Are Not A
`Proper Basis for Non-Compliance
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`No regulator has intervened or directly raised any objections, although, as the EC Letter
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`demonstrates, each had knowledge of Request 33 and the opportunity to do so. Defendants’ statements
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`regarding the KFTC and NDRC are not valid objections because they are simply characterizations of
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`what the KFTC and NDRC purportedly told them. Thus, neither the Court nor the Plaintiffs knows the
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`positions of the KFTC or NDRC. Defendants’ description of what the KFTC or NDRC purportedly
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`told them is inadmissible hearsay. See Jordan v. Paul Fin., LLC, 285 F.R.D. 435, 463 (N.D. Cal. 2012)
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`(ipse dixit evidentiary contentions are not credited). Defendants’ summaries of the KFTC and NDRC’s
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`positions are similarly improper hearsay. See Petroleum Sales, Inc. v. Valero Ref. Co. - Cal., 2006 U.S. Dist.
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`LEXIS 90419, *20-21 (N.D. Cal. Dec. 14, 2006) (a party’s description of policies and procedures of
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`third-parties is inadmissible hearsay).
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`Additionally, Defendants’ characterization is inherently unreliable because there are no
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`circumstances to suggest Defendants are authorized to speak for the KFTC or the NDRC. Defendants’
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`characterization of the KFTC and NDRC’s statement should not be accepted at face value because
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`Defendants and the KFTC are adversaries in litigation. Of course, Defendants are not enforcement
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`authorities, and have not shown they have the intent to further the interests of international law
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`enforcement. If anything, the opposite is true.
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`The KFTC’s concerns, even if taken at face value as communicated by Defendants, form no
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`basis to withhold production because they are imprecise and provided without context. Other than
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`ambiguous references to “comity,” there is no showing as to the material to which the KFTC
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`purportedly objects. Although Request 33 includes communications with regulators and other
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`Master File No. 3:14-cv-03264-JD
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`PLAINTIFFS’ MOTION TO COMPEL PRODUCTION OF DOCUMENTS PRODUCED TO FOREIGN REGULATORY
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`Case 3:14-cv-03264-JD Document 1100 Filed 03/09/16 Page 11 of 16
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`documents related to foreign investigations, by this Motion Plaintiffs are seeking only documents that
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`were produced to or seized by foreign regulators, as anticipated by the Order.
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`The NDRC’s concerns are even more unclear and unpersuasive. Indeed, the “NDRC did not
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`provide a rationale for its objection and it does not intend to put it in writing.” Jan. 26, 2016 Email from
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`M. Parrott to J. Saveri, et al., Saveri Decl., Ex. 5. The NDRC’s position is inscrutable, and cannot serve
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`as a basis to preclude production of otherwise highly relevant information.
`2.
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`The European Commission Does Not Object to Production of the Specific
`Documents at Issue
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`The only communication received from a foreign regulator to date “confirm[s] that pre-existing
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`documents are not, as such, protected from disclosure.” EC Letter, Dkt. 952-1 at 3 (emphasis added).
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`These “pre-existing documents” are exactly what are sought by Plaintiffs here. In fact, several
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`Defendants have produced to DPPs all of the ordinary course documents produced to the European
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`Commission. Saveri Decl., ¶ 11.
`3.
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`International Comity Concerns Do Not Prevent Production
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`Concerns regarding international comity are not implicated here because there is no source of
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`foreign law that forbids the documents sought in Request 33. See In re Cathode Ray Tube (CRT) Antitrust
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`Litig., 2014 U.S. Dist. LEXIS 151207, at *98-100 (documents produced to a foreign regulator do not
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`implicate concerns of international comity). Disclosure of documents maintained in the ordinary course
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`of business and produced to a foreign regulator does not “entail disclosure of confidential information of
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`an international entity and thus does not implicate the comity interests” considered in Societe Nationale.
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`Id. (holding if “a document was produced to the EC competition authorities it must be produced if it is
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`otherwise responsive to Sharp's requests”). Indeed, even were the Court to consider the Societe
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`Nationale factors, which it should not because no valid objection or source of foreign law has been cited,
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`they favor production.
`a.
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`The Documents Sought Are Highly Relevant
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`There is no dispute that the documents sought by this Motion are relevant. Plaintiffs seek to
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`redress injuries caused by a global cartel that engaged in price fixing and other antitrust violations
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`throughout the world. The investigations by foreign regulators do too. Both this litigation, and the
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`Master File No. 3:14-cv-03264-JD
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`PLAINTIFFS’ MOTION TO COMPEL PRODUCTION OF DOCUMENTS PRODUCED TO FOREIGN REGULATORY
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`Case 3:14-cv-03264-JD Document 1100 Filed 03/09/16 Page 12 of 16
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`investigations by foreign regulators, concern Defendants’ participation in a cartel to fix or stabilize
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`prices of capacitors. Indeed, such practices are broadly condemned by antitrust laws across the globe.
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`Where, as here, the evidence is “directly relevant” to the case, the first Societe Nationale factor favors
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`production. Richmark Corp., 959 F.2d at 1475. This is especially true when the information may be
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`“essential to the proof of [Plaintiffs’] claims.” See In re Air Cargo Shipping Servs. Antitrust Litig., 2010
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`U.S. Dist. LEXIS 75974, *41-42 (E.D.N.Y. July 23, 2010) There is a substantial likelihood that these
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`documents are essential to the proof of Plaintiffs’ claims. Saveri Decl., ¶ 4.
`b.
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`The Documents at Issue Are Narrowly Defined
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`The second Societe Nationale factor favors production because Request 33, as provided by the
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`Order, seeks documents that were produced to, or seized by, foreign regulators. See Dkt. 953. This is a
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`discrete and easily-identifiable set of documents.
`c.
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`The Origin of the Materials Is Immaterial
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`The third Societe Nationale factor, whether the information originated in the United States, is of
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`diminished importance in a global price-fixing cartel case. See In re Air Cargo Shipping Servs. Antitrust
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`Litig., 2010 U.S. Dist. LEXIS 75974 at *45 (court orders information produced although it originated in
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`Europe). Many Defendants are headquartered in Japan, and own and operate global capacitors
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`businesses. As to regulators outside Japan—i.e., the KFTC, NDRC, Taiwanese Fair Trade
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`Commission, CCS, and CADE—there is no evidence of the documents, which were maintained in the
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`ordinary course of Defendants’ business, originated in those jurisdictions. As for Japan, there is no
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`evidence the records were only maintained in Japan. Indeed, they were produced to regulators in other
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`jurisdictions.
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`d.
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`There is No Substitute for the Documents Sought Here
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`The documents seized by, or produced to, foreign regulators are evidence of wrongdoing that
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`cannot be obtained by other means of discovery. It is unlikely, for example, that a witness would resist
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`admitting to facts evidenced in those documents. Indeed, as the Court is aware, many of the witnesses
`intend to invoke the 5th Amendment at their deposition. The documents produced to regulators in
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`foreign jurisdictions here may be from custodians other than the subset of custodians agreed to by the
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`Master File No. 3:14-cv-03264-JD
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`PLAINTIFFS’ MOTION TO COMPEL PRODUCTION OF DOCUMENTS PRODUCED TO FOREIGN REGULATORY
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`Case 3:14-cv-03264-JD Document 1100 Filed 03/09/16 Page 13 of 16
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`parties, and thus Defendants may not have produced them although they are responsive and indeed
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`highly relevant.
`4.
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`Strong U.S. Policy of Enforcing Antitrust Laws and Protecting Plaintiffs
`Favors Production and There is No Showing of Hardship to a Foreign
`Regulator
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`Enforcement of U.S. antitrust laws through private litigation is an interest of “fundamental
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`importance to th[e] country’s effort to encourage and maintain a competitive economy.” In re Air Cargo
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`Shipping Servs. Antitrust Litig., 2010 U.S. Dist. LEXIS 75974, at *42. Private enforcement of the
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`antitrust law is crucial to “the free enterprise system envisioned by Congress” and “compliance with
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`antitrust litigation.” See Hawaii v. Standard Oil, 405 U.S. 251, 262 (1972). The United States also “has a
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`substantial interest in fully and fairly adjudicating matters before its courts”—an interest “only realized
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`if the parties have access to relevant discovery.” In re Air Cargo Shipping Servs. Antitrust Litig., 278
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`F.R.D. 51, 54 (E.D.N.Y. 2010) (internal quotation omitted). Additionally, the United States has a “vital”
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`interest in enforcing the judgment of its Courts. Richmark Corp., 959 F.2d at 1477 (citation and quotation
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`marks omitted). These interests are protected by ensuring plaintiffs obtain evidence of the wrongdoing
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`against them, so they can obtain redress and pursue remedies. See Standard Oil, 405 U.S. at 262
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`(Congress encourages private litigation to serve as “private attorney generals”). Withholding such
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`evidence from Plaintiffs directly contravenes these interests.
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`By comparison, the interests of the foreign regulators would be minimally impacted. As noted,
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`the scope of the KFTC and NDRC’s interests are uncertain, as these objections have only been
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`generally described, in the case of the KFTC, and unexplained, in the case of the NDRC. Moreover, the
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`interference to any investigation by either the KFTC or NDRC is de minimis, as there is a