|INTEL CORP. V. ADVANCED MICRO DEVICES, INC. (02-572) 542 U.S. 241 (2004)
292 F.3d 664, affirmed.
[ Ginsburg ]
[ Scalia ]
[ Breyer ]
INTEL CORPORATION, PETITIONER v.
MICRO DEVICES, INC.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
[June 21, 2004]
Justice Breyer, dissenting.
The Court reads the scope of 28 U.S.C. § 1782 to extend beyond what I believe Congress might reasonably have intended. Some countries allow a private citizen to ask a court to review a criminal prosecutors decision not to prosecute. On the majoritys reading, that foreign private citizen could ask an American court to help the citizen obtain information, even if the foreign prosecutor were indifferent or unreceptive. See, e.g., Mann, Criminal Procedure, in Introduction to the Law of Israel 278 (A. Shapira & K. DeWitt-Arar eds. 1995). Many countries allow court review of decisions made by any of a wide variety of nonprosecutorial, nonadjudicative bodies. On the majoritys reading, a British developer, hoping to persuade the British Housing Corporation to grant it funding to build a low-income housing development, could ask an American court to demand that an American firm produce information designed to help the developer obtain the British grant. Cf., e.g., Mayer, The Housing Corporation: Multiple Lines of Accountability, in Quangos, Accountability and Reform: The Politics of Quasi-Government 111, 114 (M. Flinders & M. Smith eds. 1999). This case itself suggests that an American firm, hoping to obtain information from a competitor, might file an antitrust complaint with the European antitrust authorities, thereby opening up the possibility of broad American discoverycontrary to the antitrust authorities desires.
One might ask why it is wrong to read the statute as permitting the use of Americas court processes to obtain information in such circumstances. One might also ask why American courts should not deal case by case with any problems of the sort mentioned. The answer to both of these questions is that discovery and discovery-related judicial proceedings take time, they are expensive, and cost and delay, or threats of cost and delay, can themselves force parties to settle underlying disputes. See The Brookings Institution, Justice For All: Reducing Costs and Delay in Civil Litigation, Report of a Task Force 67 (1989) (lawyers surveyed estimated that 60% of litigation costs in a typical federal case are attributable to discovery and agreed that high litigation costs are often attributable to abuse of the discovery process); Federal Judicial Center, T. Willging, J. Shapard, D. Stienstra, & D. Milfich, Discovery and Disclosure Practice, Problems, and Proposals for Change 12, 4, 8, 1416 (Tables 35) (1997) (study outlining costs of discovery). To the extent that expensive, time-consuming battles about discovery proliferate, they deflect the attention of foreign authorities from other matters those authorities consider more important; they can lead to results contrary to those that foreign authorities desire; and they can promote disharmony among national and international authorities, rather than the harmony that §1782 seeks to achieve. They also use up domestic judicial resources and crowd our dockets.
That is why I believe the statute, while granting district courts broad authority to order discovery, nonetheless must be read as subject to some categorical limits, at least at the outer boundsa matter that todays decision makes even more important. Those limits should rule out instances in which it is virtually certain that discovery (if considered case by case) would prove unjustified.
This case does not require us to find a comprehensive set of limits. But it does suggest two categorical limitations, which I would adopt. First, when a foreign entity possesses few tribunal-like characteristics, so that the applicability of the statutes word tribunal is in serious doubt, then a court should pay close attention to the foreign entitys own view of its tribunal-like or non-tribunal-like status. By paying particular attention to the views of the very foreign nations that Congress sought to help, courts would better achieve Congress basic cooperative objectives in enacting the statute. See Act of Sept. 2, 1958, Pub. L. 85906, §2, 72 Stat. 1743 (creating Commission on International Rules of Judicial Procedure to investigate and improve judicial cooperation between the United States and other countries).
The concept of paying special attention to administrative views is well established in American law. Cf. Chevron U.S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 (1984); Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944). Like American administrators, foreign administrators are likely to understand better than American courts their own job and, for example, how discovery rights might affect their ability to carry out their responsibilities. I can think of no reason why Congress would have intended a court to pay less attention to the foreign entitys view of the matter than courts ordinarily pay to a domestic agencys understanding of the workings of its own statute.
Second, a court should not permit discovery where both of the following are true: (1) A private person seeking discovery would not be entitled to that discovery under foreign law, and (2) the discovery would not be available under domestic law in analogous circumstances. The Federal Rules of Civil Procedure, for example, make only limited provisions for nonlitigants to obtain certain discovery. See Fed. Rule Civ. Proc. 27. The limitations contained in the Rules help to avoid discovery battles launched by firms simply seeking information from competitors. Where there is benefit in permitting such discovery, and the benefit outweighs the cost of allowing it, one would expect either domestic law or foreign law to authorize it. If, notwithstanding the fact that it would not be allowed under either domestic or foreign law, there is some special need for the discovery in a particular instance, one would expect to find foreign governmental or intergovernmental authorities making the case for that need. Where none of these circumstances is present, what benefit could offset the obvious costs to the competitor and to our courts? I cannot think of any.
Application of either of these
limiting principles would require dismissal of this discovery
proceeding. First, the Commission of the European
Communities (Commission) antitrust authoritys
status as a tribunal is questionable. In many
respects, the Commission more closely resembles a prosecuting
authority, say, the Department of Justices Antitrust
Division, than an administrative agency that adjudicates cases,
say, the Federal Trade Commission. To my knowledge, those who
decide whether to bring an antitrust prosecution on the
Commissions behalf are not judges. See App. 96; Wils,
The Combination of the Investigative and Prosecutorial Function
and the Adjudicative Function in EC Antitrust Enforcement: A
Legal and Economic Analysis, 27 World Competition Law and
Economics Review 201, 207 (June 2004) (explaining, in an
article written by a member of the Commissions Legal
Service, that in European Commission proceedings there is
no independent initial adjudicator . . . and the Commissioners
do not sit as judges hearing directly both sides of the
case). They do not adjudicate adversary proceedings on
the basis of proofs and argument. Id., at 207. Nor, as
the majority appears to recognize, does the later availability
of a reviewing court matter where review is limited to
the record before the Commission, and AMD could
use evidence in the reviewing courts only by
submitting it to the Commission in the current, investigative
stage. Ante, at 13. At a minimum, then, the
question whether the Commission is a tribunal is
unclear. See Wils, supra, at 207209 (noting the
scholarly and legal debate as to whether the Commissions
antitrust investigation and enforcement activities qualify it
At the same time, the Commission has told this Court that it is not a tribunal under the Act. It has added that, should it be considered, against its will, a tribunal, its ability to carry out its governmental responsibilities will be seriously threatened. Brief for Commission of the European Communities as Amicus Curiae 2. Given the potential need for the Commission to respond when a private firm (including an American company) files a complaint with the Commission and seeks discovery in an American court (say, from a competitor), its concerns are understandable.
The Commissions characterization of its own functions is, in my view, entitled to deference. The majority disregards the Commissions opinion and states categorically that the Commission is a §1782(a) tribunal when it acts as a first-instance decisionmaker. Ante, at 2. In so ignoring the Commission, the majority undermines the comity interests §1782 was designed to serve and disregards the maxim that we construe statutes so as to hel[p] the potentially conflicting laws of different nations work together in harmonya harmony particularly needed in todays highly interdependent commercial world. F. Hoffmann-LaRoche Ltd. v. Empagran S. A., ante, at __ (slip op., at 8).
The second limiting factor is also present. Neither AMD nor any comparable private party would be able to obtain the kind of discovery AMD seeks, either in Europe or in the United States. In respect to Europe, the Commission has told us that any person in the world is free to file a complaint with the Commission, but it is the Commission that then investigates. The private complainant lacks any authority to obtain discovery of business secrets and commercial information. See Brief for Commission of the European Communities as Amicus Curiae 13, and n. 15. In respect to the United States, AMD is a nonlitigant, apart from this discovery proceeding. Conditions under which a nonlitigant may obtain discovery are limited. AMD does not suggest that it meets those conditions, or that it is comparable in any other way to one who might obtain discovery under roughly analogous circumstances. In addition, the material it seeks is under a protective order. See ante, at 6, n. 4.
What is the legal source of these
limiting principles? In my view, they, and perhaps others, are
implicit in the statute itself, given its purpose and use of
the terms tribunal and interested
person. §1782(a). But even if they are not, this
Courts supervisory powers . . . permit, at the
least, the promulgation of procedural rules governing the
management of litigation, not to mention
I respectfully dissent from the Courts contrary determination.