In re Vitamin Antitrust Litig. - American Bar · PDF fileIn re Vitamin Antitrust Litig. United States District Court for the District of Columbia January 23, 2002, ... investigatory

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In re Vitamin Antitrust Litig.

United States District Court for the District of Columbia

January 23, 2002, Decided ; January 23, 2002, Filed

Misc. No. 99-197 (TFH), MDL No. 1285

Reporter

2002 U.S. Dist. LEXIS 26490; 2002 WL 35021999

IN RE: VITAMIN ANTITRUST LITIGATION;

THIS DOCUMENT RELATES TO ALL

ACTIONS (except Case Nos. 00-1030, 00-1236

and 00-1726)

Subsequent History: Motion to strike denied by

In re Vitamins Antitrust Litig., 2002 U.S. Dist.

LEXIS 25789 (D.D.C., Feb. 7, 2002)

Prior History: In re Vitamins Antitrust Litig.,

2002 U.S. Dist. LEXIS 25788 (D.D.C., Jan. 16,

2002)

Disposition: Magistrate recommended plaintiffs’

motion to compel be granted in part and denied in

part.

Core Terms

documents, submissions, disclosure, log,

governmental authority, defendants’, internal

investigation, interviews, confidentiality,

communications, plaintiffs’, vitamins, cooperation,

investigations, conspiracy, privileges, grand jury,

materials, declaration, companies, discovery,

written communication, cases, parties, protections,

employees, responses, public interest, requests,

leniency

Case Summary

Procedural Posture

Plaintiffs filed a motion to compel the foreign

defendants to produce all documents submitted to

governmental authorities and provide detailed

document-by-document privilege logs of ″internal

investigation″ documents, including notes of

government interviews of their employees. The

matter was referred to a special master for report

and recommendation.

Overview

One issue presented to the special master was

whether the foreign defendants must produce

written substantive communications they

submitted to seven foreign governments in

response to requests in connection with official

investigations into the market for vitamins. A

second issue presented to the special master was

whether defendants must produce any ″other

written communications″ submitted to any

governmental authority. A third issue presented to

the special master was whether the foreign

defendants should be protected from having to

provide more detailed, document-by-document

logs of all documents created, transmitted, or

received in the course of any internal investigation

conducted by or for them. Defendants argued that

the documents at issue were protected from

discovery by well-established privileges and

protections, including the attorney work product

doctrine, the self-evaluative privilege and the

investigatory privilege. The special master found

that several submissions were produced

voluntarily, and being voluntary, the submissions

waived whatever work product protections

attached to the documents.

Outcome

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The special master recommended that plaintiffs’

motion be granted in part and denied in part. In

particular, he recommended that each foreign

defendant be ordered to produce all written

substantive communications it submitted to

Australia, Brazil, Japan, New Zealand, Switzerland

or the European Commission, as well as all other

written communications it submitted to any of

those governments or to any agency of the United

States Government.

LexisNexis® Headnotes

Civil Procedure > ... > Discovery > Methods of

Discovery > General Overview


Discovery > Inspection & Production Requests

Civil Procedure > ... > Discovery > Misconduct

During Discovery > Motions to Compel

HN1 Pursuant to Fed. R. Civ. P. 37(a), where a

party fails to produce documents for inspection in

response to a request submitted under Fed. R. Civ.

P. 34, the discovering party may move for an

order compelling inspection in accordance with

the request.



Civil Procedure > ... > Discovery > Privileged

Communications > General Overview

Civil Procedure > ... > Privileged Communications >

Work Product Doctrine > General Overview

HN2 Pursuant to Fed. R. Civ. P. 26(b)(5), a party

which withholds information otherwise

discoverable by claiming that it is privileged or

subject to protection as trial preparation material

shall describe the nature of the documents,

communications, or things not produced or

disclosed in a manner that, without revealing

information itself privileged or protected, will

enable other parties to assess the applicability of

the privilege or protection.







HN3 See Fed. R. Civ. P. 26(b)(3).



Criminal Law & Procedure > ... > Discovery by

Defendant > Tangible Objects > Exclusions

Evidence > Burdens of Proof > General Overview

HN4 On a motion to compel, the moving party

bears the burden of showing that the nonmoving

party has failed to produce the requested

documents.

Criminal Law & Procedure > ... > Grand Juries >

Secrecy > General Overview


Secrecy > Rule of Secrecy

HN6 See Fed. R. Crim. P. 6(e)(2).





Evidence > Burdens of Proof > General Overview

International Law > Dispute Resolution > Comity

Doctrine > General Overview

HN5 Defendants have the burden of establishing

that their claims of privilege or protection are well

founded and have not been waived, and that their

logs and lists comply with Fed. R. Civ. P. 26(b)(5).



HN7 The self-evaluative privilege has been upheld

only in cases involving public health and safety.

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2002 U.S. Dist. LEXIS 26490, *26490

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Evidence > Privileges > Government Privileges >

General Overview

HN8 The investigative privilege belongs to the

government, not private parties.




Work Product Doctrine > Waiver of Protections

Civil Procedure > Discovery & Disclosure >

Discovery > Subpoenas

International Law > Dispute Resolution > Comity

Doctrine > General Overview

HN9 Voluntary submissions to adversaries waive

otherwise applicable work product protections,

whereas submissions under compulsion do not.


Disclosure > Sanctions






Discovery > Subpoenas

HN10 Compulsion avoiding waiver requires that

a disclosure be made in response to a court order

or subpoena or the demand of a governmental

authority backed by sanctions for noncompliance,

and that any available privilege or protection must

be asserted.


Discovery > Foreign Discovery



HN11 In the context of foreign discovery, five

factors may be taken into account: the importance

to the investigation or litigation of the documents

or other information requested; the degree of

specificity of the request; whether the information

originated in the United States; the availability of

alternative means of securing the information; and

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.

Civil Procedure > ... > Pleadings > Time

Limitations > General Overview


Secrecy > General Overview

Criminal Law & Procedure > ... > Secrecy >

Disclosure > Witnesses

Governments > Courts > Court Personnel

HN12 Pursuant to Fed. R. Civ. P. 6(e), no

government person conducting the grand jury - a

grand juror, an interpreter, a stenographer, an

operator of a recording device, a typist who

transcribes recorded testimony, an attorney for the

government, or any government person to whom

disclosure is made under paragraph (3)(A(ii) of

this subdivision - shall disclose matters occurring

before the grand jury. Thus, by listing the persons

to which the secrecy requirement applies, and

specifically prohibiting any application of the

secrecy requirement to any person not listed, Rule

6(e) by its terms imposes no obligations on grand

jury witnesses.







Evidence > Privileges > Attorney-Client Privilege >

General Overview

Evidence > Privileges > Attorney-Client Privilege >

Scope

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2002 U.S. Dist. LEXIS 26490, *26490

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HN13 Fed. R. Civ. P. 26(b)(5) requires a party

asserting a privilege to provide a log identifying

(a) the attorney and client involved, (b) the nature

of the document, (c) all persons or entities shown

on the document to have received or sent the

document, (d) all persons or entities known to

have been furnished the document or informed of

its substance, and (e) the date the document was

generated, prepared, or dated.

Civil Procedure > Attorneys > General Overview



HN14 Fed. R. Civ. P. 26(b)(3) cautions courts to

protect against disclosure of the mental

impressions, conclusions, opinions, or legal

theories of the attorneys.

Counsel: For LEAD PLAINTIFFS,

DONALDSON & HASENBEIN, INC V F.

HOFFMAN-LA ROCHE LTD, 99-762,

DONALDSON & HASENBEIN, INC V ROCHE

VITAMINS, INC, 98-1116, ANIMAL SCIENCE

PRODUCTS, INC V HOFFMANN-LA ROCHE

INC, 98-2947, ANIMAL SCIENCE PRODUCTS

INC V CHINOOK GRP LTD, 99-544, DAD’S

PRODUCTS CO, INC V F. HOFFMANN-LA

ROCHE LTD, 99-599, PILGRIM’S PRIDE CORP

V CHINOOK GRP LTD, 99-718, PILGRIM’S

PRIDE CORP V HOFFMANN-LA ROCHE INC,

99-720, LIVENGOOD FEEDS, INC V

HOFFMANN-LA ROCHE INC, 99-782,

LAKELAND CASH FEED CO V

HOFFMAN-LA ROCHE INC., 99-921, TEXAS

FARM PRODUCTS CO V HOFFMAN-LA

ROCHE INC., 99-986, WRIGHT ENRICHMENT,

INC V CHINOOK GRP, LTD, 99-1014, WRIGHT

ENRICHMENT, INC V HOFFMANN-LA

ROCHE INC, 99-1015, WRIGHT

ENRICHMENT, INC V LONZA INC, 99-1013,

CENTRAL CONNECTICUT COOPERATIVE

FARMERS ASSOCIATION, CLASS

PLAINTIFFS, plaintiffs: Ann Catherine Yahner,

COHEN, MILSTEIN, HAUSFELD & TOLL,

P.L.L.C., Washington, DC.

For LEAD PLAINTIFFS, DONALDSON &

HASENBEIN, INC V F. HOFFMAN-LA ROCHE

LTD, 99-762, DONALDSON & HASENBEIN,

INC V ROCHE VITAMINS, INC, 98-1116,

ANIMAL SCIENCE PRODUCTS, INC V


ANIMAL SCIENCE PRODUCTS INC V

CHINOOK GRP LTD, 99-544, DAD’S


ROCHE LTD, 99-599, PILGRIM’S PRIDE CORP













ANIMAL SCIENCE PRODUCTS, INC.,

DOMAIN INC, MIDWESTERN PET FOODS,

INC., AG MARK INC, PILGRIM’S PRIDE

CORPORATION, DONALDSON &

HASENBEIN, LAKELAND CASH FEED

COMPANY, INC., SHAKLEE CORPORATION,

UNITED COOPERATIVE FARMERS, INC.,

plaintiffs: Jonathan David Schiller, BOIES &

SCHILLER, L.L.P., Washington, DC.

For LEAD PLAINTIFFS, DONALDSON &

HASENBEIN, INC V F. HOFFMAN-LA ROCHE

LTD, 99-762, DONALDSON & HASENBEIN,

INC V ROCHE VITAMINS, INC, 98-1116,



ANIMAL SCIENCE PRODUCTS INC V



ROCHE LTD, 99-599, PILGRIM’SPRIDE CORP




Page 4 of 58

2002 U.S. Dist. LEXIS 26490, *26490










INDIRECT PURCHASER CLASS/ COX

PLAINTIFFS, RICKY COX, RICHARD K.

MYERS, JENNIFER G. WILLIAMS, BERYL D.

HALL, HUBERT E. PETRIE, JR., DONALD W.

BALES, LARRY L. MCALPINE, JOSEPH

CAMINITTI, ERIC S. WILSON, DALEN WEBB,

ROBERT SHULTE, JOSHUA P. PRENTICE,

AMY KIVENHOVEN, MARIA ANGELES,

ELWOOD E. WILLIAMS, SANDRA K.

MCCLOUD, ELIZABETH R. CROCKER,

SCOTT BAYLENS, JAMES A. BURKE, III,

plaintiffs: Steven A. Martino, Stephen L. Klimjack,

JACKSON, TAYLOR, MARTINO & HEDGE,

Mobile, AL.

For TYSON FOODS, INCORPORATED,

HUDSON FOODS, INC., CHOCTAW MAID

FARMS, INC., ALLEN’S HATCHERY, INC.,

GEORGE’S, INC., GEORGE’S FARMS, INC.,

GEORGE’S OF MISSOURI, INC., OK

INDUSTRIES, INC., PETERSON FARMS, INC.,

SIMONS FOODS INC., SUNSHINE MILLS INC,

TOWNSENDS, INC., CONTINENTAL GRAIN

COMPANY, PREMIUM STANDARDFARMS,

INC., MOUNTAIRE FEEDS, INC., QUAKER

OATS COMPANY, AGRI BEEF CO, AGWAY

INC, ALABAMA FARMERS COOPERATIVE,

INC., ALLEN FAMILY FOODS, INC./ALLEN’S

HATCHERY, INC., ARKAT FEED INC, B.C.

ROGERS POULTRY, INC., BLAIR MILLING &

ELEVATOR CO., INC., BRASWELL FOODS,

CACTUS FEEDERS INC, CAGLE’S INC,

CAL-MAINE FOODS, INC., CASE FOODS,

INC., CIRCLE S RANCH, COHARIE FARMS,

CONSAC INDUSTRIES, INC., CONTIGROUP

COMPANIES, INC., CYPRESS FOODS, INC.,

DAWE’S INC/DAWE’S LABORATORIES, E.D.

& F. MAN, INC., EASTERN MINERALS, INC.,

EVERGREEN MILLS, INC., FARMERS FEED

& SUPPLY CO., FARMLAND INDUSTRIES,

INC., FISHBELT FEED, INC., FRIONA

INDUSTRIES, INC., FURST-MCNESS CO,

GARLAND FARM SUPPLY, INC., GEORGE’S,

INC., GLOBAL HEALTH SCIENCES, INC.,

GOLDEN ROD ENTERPRISES, INC./GOLDEN

ROD FEED MILL, INC., HARRISON POULTRY,

INC., HITCH MILLS, INC./HITCH PORK

PRODUCERS, INC., HUDSON FOODS, INC.,

INDI-BEL, INC., J & K FARMS, J.C. HOWARD

FARMS, KALMBACH FEEDS, KEITH SMITH

COMPANY, KENT FEEDS INC, KOFKOFF

FEED, INC., L&K ENTERPRISES, L.L.

MURPHREY CO., MFA INCORPORATED,

MANNA PRO, INC., MAR-JAC POULTRY,

INC., MARSHALL DURBIN COMPANIES,

MARSHALL MINERALS, INC., MIDWEST

PMS, INC., MILK SPECIALTIES COMPANY,

MISSION PHARMACALCOMPANY, MOARK

PRODUCTIONS, INC., MOUNTAIRE FEEDS,

INC./MOUNTAIRE FARMS, INC., N.G. PURVIS

FARMS, NORMAN W. FRIES, INC., OK

INDUSTRIES, ORANGEBURG FOODS, PECO

FOODS, INC., PENNFIELD CORPORATION,

PETERSON FARMS, INC., PREMIUM

STANDARD FARMS, INC., PRINCE AGRI

PRODUCTS, INC., PRODUCERS FEED CO, Y

PURINA MILLS, INC., RANGEN, INC.,

RENAISSANCE NUTRITION, INC., ROCCO

ENTERPRISES, INC., SCHELL & KAMPETER,

INC., SCHREIBER FOODS, INC., SEABOARD

CORPORATION, SEMINOLE FEED,

SIMMONS FOODS, INC., SOUTHEASTERN

MINERALS, INC., SOUTHERN STATES

COOPERATIVE, INC., STAR MILLING

COMPANY, SUNSHINE MILLS INC, SYLVEST

FARMS, INC., TENNESSEE FARMERS

COOPERATIVE, TOWNSENDS, INC., TYSON

FOODS, INC., UNITED FEEDS, INC.,

UNIVERSAL COOPERATIVES, INC., VITA

PLUS CORP, VITA TECH INTERNATIONAL,

INC., WAMPLER FOODS, INC., ZEPHYR EGG

Page 5 of 58

2002 U.S. Dist. LEXIS 26490, *26490

COMPANY, HILL’S PET NUTRITION, INC.,

BLUE SEAL FEEDS, CHOCTAW MAID

FARMS, INC., FOSTER POULTRY FARMS,

BENEDICT FEEDING CO, KEITH SMITH CO,

MOARK PRODUCTION INC, REITSMA

DAIRY, ANIMIX, LLC, GENERAL NUTRITION

COMPANIES, INC., KRAFT FOODS, INC.,

MCCLAIN ENTERPRISES, INC., R.P.

SCHERER CORP., SMITHKLINE BEECHAM

CORP., T.C. PRODUCTS CO INC, WESTWAY

HOLDING CORP, COUNTRYMARK

COOPERATIVE, INC. , plaintiffs: Kenneth L.

Adams, DICKSTEIN, SHAPIRO, MORIN &

OSHINSKY, L.L.P., Washington, DC.

For INDIRECT PURCHASER CLASS/ COX

PLAINTIFFS, RICKY COX, RICHARD K.

MYERS, JENNIFER G. WILLIAMS, BERYL D.

HALL, HUBERT E. PETRIE, JR., DONALD W.

BALES, LARRY L. MCALPINE, JOSEPH

CAMINITTI, ERIC S. WILSON, DALEN WEBB,

ROBERT SHULTE, JOSHUA P. PRENTICE,

AMY KIVENHOVEN, MARIA ANGELES,

ELWOOD E. WILLIAMS, SANDRA K.

MCCLOUD, ELIZABETH R. CROCKER,

SCOTT BAYLENS, JAMES A. BURKE, III,

plaintiffs: M. Stephen Dampier, P. Dean Waite, Jr.,

Mary Elizabeth Snow, THE SHARBROUGH

LAW FIRM, PC, John W. Sharbrough, III, Mobile,

AL.

For MIDWESTERN PET FOODS, INC., plaintiff:

Roberta D. Liebenberg, FINE, KAPLAN &

BLACK, Philadelphia, PA.

For A. L. GILBERT, plaintiff: Bruce H. Simon,

COHEN, WEISS & SIMON, New York, NY.

For ANILE PHARMACY, INC, plaintiff: M. Eric

Frankovitch, FRANKOVITCH, ANETAKIS,

COLANTONIO & SIMON, Steven M. Recht,

RECHT LAW OFFICES, Weirton, WV.

For AAA EGG FARM, plaintiff: Craig C. Corbitt,

ZELLE, HOFFMANN, VOELBEL & GETTE,

L.L.P., San Francisco, CA.

For FEEDSTUFFS PROCESSING COMPANY,

plaintiff: Steven O. Sidener, GOLD BENNETT &

CERA LLP, San Francisco, CA.

ForPERRIGO COMPANY, NBTY, INC.,

REXALL SUNDOWN, INC., TWIN

LABORATORIES, INC., CAMBR COMPANY,

NATURAL ALTERNATIVES

INTERNATIONAL, INC., NUTRACEUTICAL

CORPORATION, MAKERS OF KAL, INC.,

LEINER HEALTH PRODUCTS, INC., plaintiffs:

Richard Alan Arnold, KENNY, NACHWALTER,

SEYMOUR, ARNOLD, CRITCHLOW &

SPECTOR, PA, Miami, FL.

For PUBLIX SUPERMARKETS,

INCORPORATION, MEIJER INC, plaintiffs:

Joseph Michael Vanek, DAAR, FISHER,

KANARIS & VANEK, P.C., Chicago, IL.

For HILL’S PET NUTRITION, INC., plaintiff:

Gerald G. Saltarelli, BUTLER RUBIN

SALTARELLI & BOYD, Chicago, IL.

For NUTRA BLEND, LLC, plaintiff: C. Brooks

Wood, MORRISON & HECKLER, LLP, Kansas

City, MO.

For THE PROCTER GAMBLE COMPANY,

plaintiff: Robert II Heuck, WAITE, SCHNEIDER,

BAYLESS & CHESLEY, Cincinnati, OH.

For TRAVIS CRANE, plaintiff: Dallas D. Ball,

Ballentine, SC.

For KELLOGG COMPANY, plaintiff: Jeannine

M. Tsukahara, ZELLE, HOFFMANN, VOELBEL

& GETTE, L.L.P., San Francisco, CA.

For MC SHARES, INC., plaintiff: Carol Elder

Bruce, TIGHE, PATTON, ARMSTRONG &

TEASDALE, Washington, DC.

For BRISTOL MYERS SQUIBB, plaintiff: Colin

A. Underwood, SOLOMON, ZAUDERER,

Page 6 of 58

2002 U.S. Dist. LEXIS 26490, *26490

ELLENHORN, FRISCHER & SHARP, New York,

NY.

For HORMEL FOODS CORP, plaintiff: Eric

Sean Jackson, ROBINS, KAPLAN, MILLER &

CIRESI, L.L.P., Washington, DC.

For HORMEL FOODS CORP, JENNIE-O

FOODS, SPARBOE AGRIC CORP, FORM A

FEED INC, BIG GAIN INC, LAND O’LAKES,

INC., GOLDEN STATE FEEDS INC, DIAMOND

CROSS INC, LAND O’LAKES/ HARVEST

STATES FEEDS LLC, THOMAS PRODUCTS

INC, QUALITY LIQUID FEEDS INC, CENEX

HARVEST STATE COOPERATIVES,

WILLMAR POULTRY FARMS INC, GESSELL

FEED INC, VIKING FEED SERVICE, GOLD’N

PLUMP POULTRY INC, MALT O MEAL

COMPANY, plaintiffs: Phillip A. Cole,

LOMMEN, NELSON, COLE & STAGEBERG,

P.A., Minneapolis, MN.

For CENEX HARVEST STATE

COOPERATIVES, TURKEY STORE CO,

WILLMAR POULTRY COMPANY, INC.,

plaintiffs: K. Craig Wildfang, ROBINS, KAPLAN,

MILLER & CIRESI, Minneapolis, MN.

For TURKEY STORE CO, plaintiff: Andrew S.

Birrell, Minneapolis, MN.

For BASIC DRUGS INC, plaintiff: Kevin A.

Bowman, SEBALY, SHILLITO & DYER, Dayton,

OH.

For JUDY GREENE, plaintiff: Gordon Ball,

Knoxville, TN.

For HUDSPETH & TILTON, plaintiff: Elaine

Metlin, GILBERT, HEINTZ & RANDOLPH,

Washington, DC.

For PHARMATIVE CORP, plaintiff: Bradley

Stuart Lui, MORRISON & FOERSTER, LLP,

Washington, DC.

For CARGILL, INCORPORATED, THE IAMS

COMPANY, AGRIBRANDS INTERNATIONAL,

INC., CARL S. AKEY, INTERNATIONAL,

RALSTON PURINA COMPANY, RALCORP

HOLDINGS INC, plaintiffs: Robert Kenly

Webster, Washington, DC.

For CONOPCO, INC., plaintiff: Lawrence Byrne,

SQUADRON, ELLENOFF, PLESENT &

SHEINFELD, LLP, New York, NY.

For ALABAMA MEDICAID AGENCY, plaintiff:

Charles A. Graddick, SIMS, GRADDICK &

DODSON, P.C., Mobile, AL.

For AMER HOME PROD CORP, plaintiff:

William James Bachman, WILLIAMS &

CONNOLLY, Washington, DC.

For SKW TEXTURANT SYSTEMS

MANUFACTURING, plaintiff: Frank Panopoulos,

WHITE & CASE, L.L.P., Washington, DC.

For LL MURPHREY, plaintiff: Trawick H. Stubbs,

Jr., STUBBS & PERDUE, PA, New Bern, CA.

For COCA-COLA COMPANY, plaintiff: Lee

Allen Freeman, FREEMAN, FREEMAN &

SALZMAN, P.C., Chicago, IL.

For SOUTH-CENTRAL PRODUCTS, INC.,

plaintiff: Terri Chadick, CONNER & WINTERS,

P.L.L.C., Fayetteville, AR.

For LEAD DEFENDANTS, DONALDSON &

HASSENBEIN, INC V F. HOFFMANN-LA

ROCHE LTD, 98-762, DONALDSON &

HASENBEIN, INC V ROCHE VITAMINS INC,

98-1116, ANIMAL SCIENCE PRODUCTS, INC

V HOFFMANN-LA ROCHE INC, 98-2947,




ROCHE LTD, 99-599, PILGRIM’S PRIDE CORP.


PRIDE CORP V HOFMANN-LA ROCHE INC,

Page 7 of 58

2002 U.S. Dist. LEXIS 26490, *26490

99-720, LIVENGOOD FEEDS, INC. V

HOFFMANN-LA ROCHE, INC, 99-782,



PRODUCTS CO V HOFMANN-LA ROCHE

INC, 99-986, WRIGHT ENRICHMENT INC V

CHINOOK GRP LTD, 99-1014, WRIGHT

ENRICHMENT INC V HOFFMANN-LA


ENRICHMENT INC V LONZA INC, 99-1013,

HOFFMAN-LAROCHE, INC, defendants: Bruce

L. Montgomery, ARNOLD & PORTER,

Washington, DC.























RHONE-POULENC S.A., RHONE-POULENC

AG COMPANY, INC., ROUSSEL CORP,

RHONE-POULENC ANIMAL NUTRITION

INC, defendants: George T. Manning, JONES,

DAY, REAVIS & POGUE, Washington, DC.























BASF AG, BASF CORPORATION, defendants:

Tyrone C. Fahner, MAYER, BROWN & PLATT,

Chicago, IL.




HASENBEIN, INC V ROCHEVITAMINS INC,


















ENRICHMENT INC V LONZA INC, 99-1013, F.

Page 8 of 58

2002 U.S. Dist. LEXIS 26490, *26490

HOFFMAN-LAROCHE, LTD., defendants: Scott

William Muller, DAVIS, POLK & WARDWELL,

Washington, DC.























TAKEDA AMERICA INC, TAKEDA VITAMIN

& FOOD USA, INC., TAKEDA CHEMICAL

INDUSTRIES, LTD., defendants: Lawrence

Byrne, SQUADRON, ELLENOFF, PLESENT &

SHEINFELD, LLP, New York, NY.

For REILLY INDUSTRIES, INC., defendant:

Karen Natalie Walker, Jeffrey Bossert Clark,

KIRKLAND & ELLIS, Washington, DC.

For EM INDUSTRIES, INC., defendant: Theodore

V. Cacioppi, Craig M. Walker, ROGERS &

WELLS, New York, NY.

For EM INDUSTRIES, INC., E. MERCK,

MERCK KGAA, defendants: Fred W. Reinke,

CLIFFORD, CHANCE, ROGERS & WELLS,

LLP, Washington, DC.

For BASF AG, RHONE-POULENC S.A., F

HOFFMAN-LA ROCHE, INC., defendants:

Jonathan Lee Greenblatt, SHEARMAN &

STERLING, Washington, DC.

For BASF AG, BASF AKTIENGESELLSCHAFT,

defendants: Stephen Fishbein, SHEARMAN &

STERLING, New York, NY.

For RHONE-POULENC S.A., HOECHST

MARION ROUSSEL S.A., defendants:

Mary-Helen Perry, JONES, DAY, REAVIS &

POGUE, Washington, DC.

For DUCOA, L.P., DCV, INC., defendants: James

R. Weiss, PRESTON, GATES, ELLIS &

ROUVELAS MEEDS, Washington, DC.

For DUCOA, L.P., DCV, INC., defendants: Kurt

S. Odenwald, Jim J. Shoemake, Kevin K.

Spradling, GUILFOIL PETZALL &

SHOEMAKE, LLP, St. Louis, MO.

For DCV, INC., defendant: Elizabeth Wallace

Fleming, SENNIGER, POWERS, LEAVITT &

ROEDEL, St. Louis, MO.

For CONAGRA, INC., defendant: Paul H.

Friedman, Terri L. Bowman, DECHERT PRICE

& RHOADS, Washington, DC.

For PETER COPLAND, CHINOOK GROUP

LTD, CHINOOK GROUP INC, COPE

INVESTMENTS LTD, JOHN KENNEDY,

ROBERT SAMUELSON, defendants: Donald I.

Baker, BAKER & MILLER, PLLC, Washington,

DC.

For RHONE-POULENC AG COMPANY, INC.,

RHONE-POULENC ANIMAL NUTRITION

INC, defendants: John M. Majoras, JONES, DAY,

REAVIS & POGUE, Cleveland, OH.

For MITSUI & CO., LTD., MITSUI &

COMPANY, INCORPORATED (USA),

defendants: Aileen Meyer, WINTHROP,

Page 9 of 58

2002 U.S. Dist. LEXIS 26490, *26490

STIMSON, PUTNAM & ROBERTS, Washington,

DC.

For BIOPRODUCTS, INC., defendant: Michael

E. Nogay, SELLITTI NOGAY & MCCUNE,

Weirton, WV.

For VITACHEM COMPANY, defendant: Erin R.

Brewster, MACCORKLE LAVENDER &

CASEY, PLLC, Charleston, WV.

For DAIICHI PHARMACEUTICALS

CORPORATION, DAIICHI FINE CHEMICALS,

INC., defendants: Michael Louis Denger,

GIBSON, DUNN & CRUTCHER, L.L.P.,

Washington, DC.

For TANABE SEIYAKU COMPANY LIMITED,

TANABE, U.S.A., INC., TAKEDA U.S.A., INC.,

defendants: Mark Riera, SHEPPARD, MULLIN,

RICHTER & HAMPTON, LLP, Los Angeles,

CA.

For SUMITOMO CHEMICAL CO., LTD.,

defendant: Peter Dean Isakoff, WEIL, GOTSHAL

& MANGES, L.L.P., Washington, DC.

For TANABE, U.S.A., INC., defendant: William

L. Monts, III, WILSON, HAJEK & SHAPIRO,

P.C., Virginia Beach.

For KUNO SOMMER, defendant: John Worth

Kern, IV, JANIS, SCHUELKE & WECHSLER,

Washington, DC.

For EISAI CORPORATION OF NORTH

AMERICA, EISAI CO., LTD., EISAI USA INC,

EISAI INC., defendants: Margaret Kolodny

Pfeiffer, SULLIVAN & CROMWELL,

Washington, DC.

For E.I. DUPONT DE NEMOURS AND

COMPANY, defendant: George J Terwilliger,

MCGUIRE, WOODS, BATTLE & BOOTHE,

LLP, Washington, DC.

For UCB SA, UCB CHEMICALS CORP, UCB

PHARMA INC, defendants: Kevin Richard

Sullivan, KING & SPALDING, Washington, DC.

For GIVAUDAN-ROURE FLAVORS, INC.,

defendant: Jacqueline Ray Denning, ARNOLD &

PORTER, Washington, DC.

For UCB CHEMICALS CORP, UCB PHARMA

INC, defendants: Ann Marie Hart, KING &

SPALDING, Washington, DC.

ForBASF CORPORATION, defendant: Andrew

S. Marovitz, MAYER, BROWN & PLATT,

Chicago, IL.

For LONZA A.G., LONZA INC., defendants:

Thomas M. Mueller, Jonathan Shiffman, MAYER,

BROWN & PLATT, New York, NY.

For CHINOOK GROUP LTD, defendant: W.

Todd Miller, BAKER & MILLER, PLLC,

Washington, DC.

For EISAI CO., LTD., EISAI USA INC, EISAI

INC., defendants: Stacey R. Friedman,

SULLIVAN & CROMWELL, D. Stuart

Meiklejohn, New York, NY.

For TAKEDA VITAMIN & FOOD USA, INC.,

defendant: Cathy M. Armstrong, THORP REED

& ARMSTRONG, LLP, Wheeling, WV.

For DEGUSSA-HULS AG, DEGUSSA HULS

CORPORATION, defendants: Donald C. Klawiter,

MORGAN, LEWIS & BOCKIUS, L.L.P.,

Washington, DC.

For DEGUSSA-HULS AG, defendant: Thomas

John Lang, MORGAN, LEWIS & BOCKIUS,

L.L.P., Washington, DC.

For BIOPRODUCTS, INC., defendant: Charles

E. Jarrett, Marcia E. Marstellar, BAKER &

HOSTETLER, Marcia E. Marsteller, Cleveland,

OH.

Page 10 of 58

2002 U.S. Dist. LEXIS 26490, *26490

For MITSUI & CO., LTD., defendant: Holly A.

House, MCCUTCHEN DOYLE BROWN &

ENENEER, San Francisco, CA.

For MITSUI & CO., LTD., defendant: Sutton

Keany, PILLSBURY & WINTHROP, LLP, New

York, NY.

For NOVUS INTERNATIONAL, INC.,

defendant: E. Perry Johnson, Jeffrey S. Russell,

BRYAN CAVE, LLP, St. Louis, MO.

For MID-AMERICA DAIRYMEN, INC.,

ASSOCIATED MILK PRODUCERS, INC.,

MILK PRODUCTS LLC, BORDEN INC,

claimants: William W. Kocher, Columbus, OH.

For BECKETT APROTHECARY, HOPKINSON

HOUSE PHARMACY INC, claimants: Philip A.

Steinberg, Bala Cynwyd, PA.

For CALIFORNIA INDIRECT PURCHASER/

GARDNER-ROSSI COMPANY PLAINTIFFS,

GARDNER/ ROSSI COMPANY, LINDA

PHILION, JULIA HART-LAWSON, HOWARD

GENDLER, CONNE MARIE GRAHAM,

HELENE SILVER, LINNEY DICKINSON and

ROSS W. GRAHAM, movant: Eric B. Fastiff,

LEIFF, CABRASER, HEIMANN &

BERNSTEIN, LLP, Guido Saveri, SAVERI &

SAVERI, PC, San Francisco, CA.

For STATE PLAINTIFFS/ GIRAL, movant:

Jeffrey Andrew Bartos, QUERRIERI, EDMOND

& CLAYMAN, Washington, DC.

For SELTZER CHEMICALS, 1700 PHARMACY

INC, JBDL PHARMACY, HORIZON

LABORATORIES, INC., movants: Ann Catherine

Yahner, COHEN, MILSTEIN, HAUSFELD &

TOLL, P.L.L.C., Washington, DC.

For GLEN FORD, RITCHIE SMITH FEEDS,

INC., VITAPHARM CANADA LTD, movants:

Michael G. Lenett, THE CUNEO LAW GROUP,

P.C., Washington, DC.

For FEDERAL REPUBLIC OF GERMANY,

THE, movant: Peter Heidenberger, Chevy Chase,

MD.

For STEPHEN J. POLLAK, special master:

Stephen John Pollak, SHEA & GARDNER,

Washington, DC.

For CARGILL, INCORPORATED,

AGRIBRANDS INTERNATIONAL, INC., CARL

S. AKEY, INC., THE IAMS COMPANY,

intervenors: Robert Kenly Webster, Washington,

DC.

For ARCHER DANIELS MIDLAND COMPANY,

intervenor: Steven R. Kuney, WILLIAMS &

CONNOLLY, Washington, DC.

For GENERAL MILLS, INC., intervenor: Garrett

Berry Magens Duarte, COLLIER, SHANNON,

RILL & SCOTT, P.L.L.C., Washington, DC.

Judges: [*1] Stephen J. Pollak, Special Master.

Opinion by: Stephen J. Pollak

Opinion

REPORT AND RECOMMENDATIONS OF

THE SPECIAL MASTER RESPECTING

PLAINTIFFS’ MOTION TO COMPEL

PRODUCTION OF DOCUMENTS

SUBMITTED TO GOVERNMENTAL

AUTHORITIES AND PRIVILEGE LOGS OF

″INTERNAL INVESTIGATION″

DOCUMENTS

Table of Contents

BACKGROUND

RELEVANT FACTS

A. Written Substantive Communications to

Governments

1. Brazilian Ministry of Justice

Page 11 of 58

2002 U.S. Dist. LEXIS 26490, *26490

2. Swiss Competition Commission

3. New Zealand Commerce Commission

4. Federal Competition Commission of Mexico

5. Japan Federal Trade Commission

6. European Commission

7. Australian Competition and Consumer

Commission

B. Other Written Communications to Governments

C. Internal Investigation Documents

1. Roche

2. BASF

3. Daiichi

4. Merck

5. Lonza

6. Degussa

7. Rhone-Poulenc

8. Takeda

9. Reilly Industries, Inc., and Reilly Chemicals,

S.A.

PARTIES’ CONTENTIONS

A. Plaintiffs’ Contentions

1. Submissions to Governmental Authorities

2. Internal Investigation Documents

B. Defendants’ Contentions


a. Written Substantive Communications

b. Other Written Communications

2. Internal [*2] Investigation Documents

C. Plaintiffs’ Contentions in Reply





RECOMMENDATIONS


Governmental Authorities

Brazilian Ministry of Justice

Swiss Competition Commission

Federal Competition Commission of Mexico

European Commission

New Zealand Commerce Commission

Japan Fair Trade Commission

Australian Competition and Consumer

Commission

B. Other Written Communications to



CONCLUSION

This report addresses issues raised by plaintiffs’

September 7, 2001, motion to compel the foreign

defendants to produce all documents submitted to

governmental authorities and provide detailed

document-by-document privilege logs of ″internal

investigation″ documents, including notes of

government interviews of their employees (″Pls.

Mot.″); foreign defendants’ October 2, 2001,

opposition (″Defs. Opp.″) and October 10, 2001,

supplemental authority (″Defs. Supp. Mem.″);

and plaintiffs’ November 1, 2001, reply (″Pis.

Page 12 of 58

2002 U.S. Dist. LEXIS 26490, *1

Reply″). [*3]1 Having carefully considered the

full record, including the motion, memoranda,

exhibits, affidavits, declarations, and other

materials submitted by the parties, the arguments

presented at the hearing on November 13, 2001,

and other pertinent materials in the record, I

recommend that plaintiffs’ motion be granted in

part and denied in part. In particular, I recommend

that each foreign defendant be ordered to produce

all written substantive communications it

submitted to Australia, Brazil, Japan, New

Zealand, Switzerland or the European

Commission, as well as all other written

communications it submitted to any of those

governments or to any agency of the United States

Government. I recommend that plaintiffs’ motion

be denied to the extent it seeks to compel defendant

Rhone-Poulenc to produce materials it submitted

to Mexico. Furthermore, I recommend that

plaintiffs’ motion be denied to the extent it seeks

an order compelling each defendant to produce a

privilege log providing the information required

by Rule 26(b)(5) of the Federal Rules of Civil

Procedure for each document constituting or

referring to any internal investigation conducted

by the defendant or on its behalf.

[*4] BACKGROUND

On January 23, 2001, plaintiffs served ″merits″

discovery on 20 corporate foreign defendants,

including the 12 defendants at bar, 2 consisting of

document requests, interrogatories, and definitions

and instructions. On March 2, 2001, 13 of those

foreign defendants served a motion seeking a

protective order narrowing the scope of particular

requests and requiring plaintiffs to proceed under

the Hague Convention. 3 The Special Master

issued a Report on April 23, 2001, recommending

that the motion be granted in part and denied in

part, and that the foreign defendants respond

under the Federal Rules of Civil Procedure to

document requests and interrogatories attached in

an Appendix of Approved, Disapproved, and

Narrowed Discovery Requests. Among the

document requests recommended for approval

were Nos. 1 and 2, which seek ″proffers, witness

statements or [written] responses to requests for

information″ produced, respectively, to the U.S.

Department of Justice (″Justice Department″) or

to law enforcement agencies, authorities or

commissions in Canada, Europe, Japan or

elsewhere; and No. 4, which seeks ″all documents

constituting or referring to any investigation [*5]

conducted by you or on your behalf regarding

whether and the extent to which you (or others)

participated in an understanding, agreement or

conspiracy involving * * * vitamins.″ On May 4,

2001, pursuant to stipulation of the parties, the

Special Master amended the Appendix to the

April 23, 2001, Report to provide that ″Document

Requests Nos. 1, 2 * * * are deferred without

prejudice to the plaintiffs reopening the requests

at a later time.″

Following Rule 53 objections, the Court, on June

20, 2001, affirmed the Report in relevant part and

ordered that the foreign defendants begin [*6]

producing merits discovery in accordance with

the Federal Rules of Civil Procedure. On July 28,

1 The foreign defendants that are the subject of plaintiffs’ motion are F. Hoffmann-La Roche Ltd, BASF AG, Rhone-Poulenc S.A.,

Rhone-Poulenc Animal Nutrition S.A., Hoechst Marion Roussell S.A., Takeda Chemical Industries, Ltd., Daiichi Pharmaceutical Co.,

Ltd., Merck KGaA, E. Merck, Reilly Chemicals, S.A., Degussa AG, and Lonza AG (collectively ″foreign defendants″). See transcript

of 11/13/01 hearing (″Tr.″) at 7; Defs Opp. at 1. For ease of reference, the foreign defendants are sometimes referred to, respectively,

as ″Roche,″ ″BASF,″ ″Rhone-Poulenc″ (for Rhone-Poulenc S.A. and Rhone-Poulenc Animal Nutrition S.A., collectively), ″Marion

Roussell,″ ″Takeda,″ ″Daiichi,″ ″Merck″ (for Merck KgaA and E. Merck, collectively), ″Reilly,″ ″Degussa,″ and ″Lonza.″

2 Those 20 foreign defendants were Aventis S.A.; Aventis AN-S.A.; BASF; Chinook Group Ltd; Daiichi; Degussa; Eisai Co., Ltd

(″Eisai)″; Merck; Roche; Marion Roussel; Lonza; Mitsui & Co., Ltd; Rhone-Poulenc; Reilly; Sumitomo Chemical Co., Ltd; Takeda;

Tanabe Seiyaku Co., Ltd; and UCB S.A.

3 Those 13 foreign defendants were BASF; Daiichi; Degussa; Eisai; Merck; Roche; Marion Roussel; Lonza; Rhone-Poulenc; Reilly;

and Takeda.

Page 13 of 58

2002 U.S. Dist. LEXIS 26490, *2

http://advance.lexis.com/api/document?collection=statutes-legislation&id=urn:contentItem:4YF7-GNR1-NRF4-41MB-00000-00&context=1000516

2001, the Court issued a Second Amended Pretrial

Schedule, which ordered the foreign defendants

substantially to complete their responses to all

Court-approved discovery requests, including

Request No. 4, by August 31, 2001, and to

produce by August 15, 2001, privilege logs for all

documents producible under the Court’s June 20,

2001, Order but withheld on privilege grounds. 4

On August 17, 2001, pursuant to stipulation of the

parties, the Court issued an order modifying and

amplifying the Second Amended Pretrial Schedule,

which provides in relevant part:

Paragraph 5

By August 21, 2001, foreign defendants

will produce a log of all ″Written

Substantive Communications″ from

foreign defendants to the U.S. Department

of Justice, the European Commission, or

similar law enforcement [*7] agencies or

other governmental or judicial entities.

″Written Substantive Communications″

shall mean ″written communications which

discuss or refer to any aspect of the

alleged vitamins conspiracy or conspiracies

* * *, as well as documents relating to the

impact of the alleged vitamins conspiracy

or conspiracies and damages caused by the

alleged vitamins conspiracy or

conspiracies.″

Excluded from the term ″Written

Substantive Communications″ were ″all

written communications which do not

discuss or refer to any aspect of the

alleged vitamins conspiracy or conspiracies

including, but not limited to, routine

correspondence confirming meetings (and

containing no other substantive information

about the alleged vitamins conspiracy or

conspiracies), routine transmittal letters

forwarding documents (and containing no

other substantive information about the

alleged vitamins conspiracy or

conspiracies), submissions or studies

regarding general market conditions,

submissions regarding the use,

consumption or manufacture of vitamins

or vitamins containing products, or

submissions regarding the finances or

financial condition of any of the Foreign

defendants.″ 5

Also by August 21, 2001, foreign [*8]

defendants will produce a list of their

current employees and former employees,

if any, who met with or were interviewed

by the U.S. Department of Justice, the

European Commission, or similar law

enforcement agencies or other

governmental or judicial entities.

Paragraph 6

By August 21, 2001, foreign defendants

will produce (1) a log of Internal

Investigation Documents disclosed to third

parties; (2) ″a list which sets forth the

general categories of the Foreign

Defendants’ Internal Investigation

Documents (such as, by way of example

only, memoranda summarizing interviews

of current or former employees,

memoranda to management, memoranda

to file prepared by counsel)″; and (3) a list

stating for each current or former employee

identified pursuant to paragraph 5 as

having met with or been interviewed by

any of the enumerated governmental

agencies whether ″any notes or memoranda

or other documents summarizing or

discussing any meeting or interview or

grand jury or other testimony of such

4 Privilege logs respecting post-August 15, 2001, productions were ordered to be served within 14 days of each production.

5 The terms ″written substantive communications″ and ″other written communications″ are used in this Report to refer to the categories

of governmental submission documents described above in the text.

Page 14 of 58

2002 U.S. Dist. LEXIS 26490, *6

current employee or former employee

exist.″

Paragraph 7

By August 28, 2001, ″each Foreign

Defendant shall provide plaintiffs with an

approximation of the volume of Internal

[*9] Investigation Documents within

their possession, custody or control.″

The foreign defendants state that, pursuant to the

Court’s orders of June 20 and August 17, 2001,

they have produced almost 6,000 pages of

″conspiracy″ documents, including all pre-existing

business records relating in any way to the alleged

vitamins conspiracy, and approximately 600,000

pages of other documents responsive to the

Court-approved discovery requests. Defendants

represent that they submitted no written

substantive communications to the Justice

Department other than pre-existing documents.

Defendants have acknowledged that they

submitted written substantive communications to

foreign governmental authorities, but have

declined to produce all such documents, asserting

that they are protected from disclosure by the

attorney work [*10] product doctrine, the

self-evaluative privilege, the investigatory

privilege, public interest immunity, and

considerations of international comity.

In accordance with the Court’s August 17, 2001,

Order, each foreign defendant provided a log of

all written substantive communications submitted

to governments but withheld from plaintiffs on

privilege or policy grounds. Pursuant to paragraph

5 of the August 17 stipulated order, defendants

have not logged their other written

communications submitted to governments but

withheld from plaintiffs. Defendants contend that

disclosure of such documents is prohibited by

Rule 6(e) of the Federal Rules of Criminal

Procedure. As to internal investigation documents,

defendants have listed documents responsive to

Request No. 4 generally in four ″broad categories″:

(a) Memoranda or notes prepared by

counsel for defendant of interviews of

current or former employees conducted by

counsel for defendant;

(b) Memoranda, letters, e-mail, faxes and

other correspondence between defendant

and counsel regarding legal advice and

factual analysis;

(c) Memoranda to file, notes, and other

material prepared by counsel for defendant

for their own [*11] internal use; and

(d) Notes of joint defense meetings.

Such categorical descriptions were provided in

lieu of document-by-document descriptions of

defendants’ internal investigation documents.

In August and September 2001, each foreign

defendant provided to plaintiffs a list identifying

current and former employees who were known to

have been interviewed by any government and

indicating whether notes, memoranda or

summaries of such interviews exist. Most

defendants also have supplied plaintiffs with

estimates of the number of their internal

investigation documents, which range between

100 and 250 documents per defendant.

On September 7, 2001, plaintiffs filed a motion to

compel the foreign defendants to produce in full

their submissions to governments and to provide

document-by-document logs of all of their internal

investigation documents in accordance with Rule

26(b)(5). On October 2 and 10, 2001, defendants

filed a memorandum and supplemental

memorandum in opposition to plaintiffs’ motion.6

[*12] Plaintiffs replied on November 1, 2001. 7

RELEVANT FACTS

6 By letter dated December 21, 2001, to the Special Master, counsel for Takeda withdrew that defendant’s opposition ″so far as it relates

only to [Takeda’s] submissions to the Japan Fair Trade Commission,″ noting that the withdrawal does not affect arguments in opposition

Page 15 of 58

2002 U.S. Dist. LEXIS 26490, *8




Governments

The major issue presented to the Special Master is

whether, in response to Document Request No. 2,

the foreign defendants must produce written

substantive communications they submitted to

seven foreign governments in response to requests

in connection with official investigations into the

market for vitamins. 8 Defendants have identified

their submissions on a document-by-document

basis in logs produced to plaintiffs. Drawing on

those logs and on affidavits, declarations and

other materials submitted by the parties, this

section of the Report identifies those submissions

on a government-by-government and

defendant-by-defendant basis, and highlights the

factual support for the parties’ contentions on the

issues of whether the submissions were voluntary

or compelled and made in reliance upon

governmental assurances of confidentiality, and

whether considerations of comity should protect

even voluntary submissions from disclosure. [*13]

1. Brazilian Ministry of Justice

According to the logs submitted by the foreign

defendants, three of the defendants made

submissions to the government of Brazil. On July

31, 2000, Roche made a submission by outside

attorneys that included an annex supplying

confidential market information. In July 2000,

BASF similarly made a submission by outside

counsel ″to dismiss proceedings in Brazil.″ And

Merck at some point not indicated in the record

made a submission by local counsel of

″information * * * to Brazilian Ministry of Justice

regarding vitamins inquiry.″

Roche submitted a declaration by its Brazilian

counsel, Antonio Carlos Goncalves, a partner in

the Brasilia, Brazil, law firm of Pinheiro

Neto-Advogados. Mr. Goncalves states that the

Brazilian [*14] Ministry of Justice (″SDE″) in

May 1999 decided to ″instate an ex officio

preliminary investigation, destined to collect

evidence of possible violations of the Brazilian

Antitrust Law * * *.″ Goncalves Decl. P 3. In

May 2000, as authorized by the Brazilian

Competition Law, ″the preliminary investigation

was converted into an administrative proceeding.″

Id. P 5. ″Accordingly,″ Mr. Goncalves states, ″we

presented a defense on behalf of [Roche] and of

individuals separately named in the investigation.″

Id. P 6. As part of that defense, Roche provided

government officials with ″confidential graphics

regarding the Brazilian market.″ Id. P 8. In

response to Roche counsel’s requests, the Brazilian

competition authorities agreed to keep the

graphics, Roche’s defense, and all documents as

one confidential exhibit. Id. P 9.

BASF submitted a declaration by its Brazilian

counsel, Marcelo Magno Constant Prais, who is a

partner in the Sau Paulo, Brazil law firm of L.O.

Baptistata Advogados. Mr. Prais echoes Roche’s

local counsel’s description of the preliminary

investigation and its conversion to an

administrative proceeding. See Prais Decl. PP 3-4.

As to confidentiality, Mr. [*15] Prais states:

″In that proceeding, BASF AG was

required to submit a response to assert any

defense related to the investigation * * *

In an administrative proceeding, if a

company does not present a defense to the

SDE, the SDE could assume that the

charges it is investigating are true.

Accordingly, we presented a defense * * *

pursuant to principles of the Brazilian

Federal Constitution and under protections

to plaintiffs’ motion presented by other defendants as to those defendants’ submissions to the JFTC to any other governmental authority

or the balance of the opposition from Takeda.

7 Plaintiffs’ unopposed motion for leave to file oversized reply brief is granted.

8 Plaintiffs state that defendants made submissions to eight foreign governments, including the Canadian Competition Bureau. Pls. Mot

at 23. Defendants’ privilege logs do not identify any submissions to this or any other governmental authority of Canada.

Page 16 of 58

2002 U.S. Dist. LEXIS 26490, *12

of the Judicial System. * * * As a general

rule under Brazilian law, substantive

communications presented to the SDE in

the course of an administrative proceeding

are kept confidential.″ See id. PP 5-9

(paragraph numbers omitted).

Merck did not supplement its log with an affidavit

or declaration, and plaintiffs submitted no counter

declarations, affidavits or citations to Brazilian

law.

2. Swiss Competition Commission


defendants, two of the defendants made

submissions to the government of Switzerland.

Between August 2, 1999, and January 25, 2000,

BASF made three submissions to the Swiss

Competition Commission, the regulatory authority

responsible for conducting investigations into

alleged violations of [*16] Swiss antitrust laws. 9

[*17] Rhone-Poulenc made one submission to

the Commission, on July 13, 1999 10 BASF

submitted a declaration of Joachim Scholz, an

attorney in its legal department since 1982, who

said that he was personally involved in BASF’s

compliance with requests for information from

the Commission. Scholz Decl. P 10. Mr. Scholz

further states:

″On July 21, 1999, the Swiss Commission

sent a formal request to BASF AG

requiring that it provide information related

to its activities in the vitamins industry in

Switzerland. As Swiss law requires, BASF

AG submitted to the Swiss Commission

written information responsive to that

request * * * . BASF AG expressly

designated that the information it provided

to the Swiss Commission was strictly

confidential. BASF AG further understood

that this information was for the sole

purpose of its investigation and would not

be disclosed to third parties.″ Id. PP 11-13

(paragraph numbers omitted).

Rhone-Poulenc submitted a declaration of John

M. Majoras, outside counsel for Rhone-Poulenc

and a partner in the Washington, D.C., office of

Jones, Day, Reavis & Pogue. Mr. Majoras states

that, based upon his knowledge of the Swiss

proceedings and his review of the firm’s files,

Rhone-Poulenc’s submission to the Commission

was compulsory and made pursuant to an official

request for information in the course of a

commission investigation. See Majoras Del. P 8.

He further states that Rhone-Poulenc’s submission

was made with the understanding that it would be

held in confidence. Id.

Defendants also submitted a letter dated October

3, 2001, from the Vice Director of the Swiss

Competition Commission, Patrick Krauskopf, and

a Case-handler for the Commission, Corine Pirlot

to Dr. Meyer-Lindemann, BASF’s European

counsel. Mr. Krauskopf and Ms. Pirlot state that

the Commission began [*18] an investigation on

June 21, 1999, regarding suspected

anti-competitive activities of BASF and Aventis

S.A. (successor to Rhone-Poulenc). Id. at 1. As

part of that investigation, they state, the

Commission propounded official requests for

information and ″compelled the companies to

respond to those requests.″ Id. Mr. Krauskopf and

Ms. Pirlot further state that ″it is and has been the

Commission’s understanding that the submissions

of BASF AG and Aventis S.A. would not be

subject to mandatory disclosure to third parties in

a civil litigation.″ Id.

In response, plaintiffs submitted a declaration of

Dr. Wolfgang Peter, an attorney practicing law in

9 BASF’s logs describe these submissions variously as letters, attachments, and enclosure providing information about alleged vitamins

conspiracies, and letter and attachment providing Art. 27 declarations about alleged vitamins conspiracies.

10 Rhone-Poulenc’s logs describe its submissions as cover correspondence from outside counsel attaching Response to Commission

Questionnaire by Rhone-Poulenc and business documents already produced to plaintiffs.

Page 17 of 58

2002 U.S. Dist. LEXIS 26490, *15

Geneva, Switzerland. Dr. Peter states that ″when

an investigation is engaged″ by the Swiss

Competition Commission, ″the Secretariat sends

to the person concerned a letter setting out the

information or documents needed and asking for

their production.″ Peter Decl. P 4. ″A failure to

reply does not result in any sanction or penalty.″

Id. In such instances, ″the Secretariat sends a

registered letter setting a deadline″ for compliance,

but ″there are no sanctions or penalties for failing

to reply.″ Id. Dr. Peter states that [*19] if the

person still does not reply, ″a formal decision will

be rendered by the Commission,″ but ″it is only in

exceptional circumstances that the Commission

immediately renders a formal decision against a

person suspected of possessing relevant

information or documents * * *.″ Id. He states

further that, ″in the absence of voluntary

cooperation, the Commission can compel a party

to produce submissions or documents * * *.″ Id. P

5 (citing Article 40 and Article 55 of the Federal

Act on Cartels and Other Restraints of

Competition).

According to Dr. Peter, ″the right to refuse to

answer and submit documents is, however,

guaranteed under certain circumstances,″ including

where ″cooperation would result in criminal

prosecution″ or where the documents are

privileged. Id. P 5. Although Dr. Peter identifies a

number of relevant documents he reviewed before

preparing his declaration, he states that he does

not have sufficient information to determine

whether these circumstances would have been

applicable here. Noting that Mr. Krauskopf uses

the word ″compelled″ in describing the

productions of BASF and Aventis, Dr. Peter states

that it is unclear from the letter whether that term

[*20] is being used to mean that ″a formal

decision was ’enforced’ through penal sanctions

or seizures * * * or whether this word simply

means that, as it is usually the case, that these

defendants abided spontaneously by a formal

decision or even in anticipation of such a

decision.″ Id. P 6. Finally, Dr. Peter states that

submissions that do not contain business secrets

are only confidential towards non-parties to the

procedure, and that this implies that another

defendant or a plaintiff could access such

submissions. Id. P 8. Relying on a statement of

Rolf Dahler, the present Director of the Secretariat

for the Commission, in a book on Swiss cartel

law, Dr. Peter concludes that ″a secret can be

protected under Swiss law only if it refers to

lawful information.″ Id. P 10.

3. New Zealand Commerce Commission

According to the foreign defendants’ logs, one

defendant, Rhone-Poulenc, made a submission to

the New Zealand Commerce Commission. That

submission, on July 24, 2000, was described as a

Summary Statement to Commission by outside

counsel.

Rhone-Poulenc submitted a declaration of its

outside counsel, Mr. Majoras, identified

previously. Mr. Majoras states that his [*21] firm

served as coordinating counsel for criminal

investigations and civil litigation pending in New

Zealand. Majoras Decl. P 8. Based on his

knowledge of those proceedings and his review of

the firm’s files, Mr. Majoras states that it is his

understanding that the submission to the New

Zealand Commerce Commission was voluntary.

Id. Mr. Majoras further states that the submission

was made in pursuit of an application for leniency

″under strict confidentiality arrangements and, on

advice of * * * New Zealand counsel * * *, with

the expectation that the public interest immunity

would shield [it] from disclosure to third parties.″

Id.

Plaintiffs submitted no counter declarations,

affidavits or citations to New Zealand law.

4. Federal Competition Commission of Mexico

According to the foreign defendants’ logs, one

defendant, Rhone-Poulenc, made two submissions

to Mexico’s Federal Competition Commission, on

Page 18 of 58

2002 U.S. Dist. LEXIS 26490, *18

December 9, 1999, and January 13, 2000, that

were responses by outside counsel to requests for

information.

Rhone-Poulenc submitted a declaration of its

outside counsel, Mr. Majoras, who states that,

based upon his knowledge of the proceedings in

Mexico and his [*22] review of the firm’s files,

Rhone-Poulenc’s submissions to the Mexican

antitrust authority were compulsory and made

pursuant to an official request for information in

the course of an investigation. Majoras Decl. P 8.

He further states that the submissions were made

with the understanding that they would be held in

confidence. Id.

At the November 13, 2001, hearing on plaintiffs’

motion, counsel for the defendants produced a

four-page letter dated August 9, 1999, from the

General Director of Investigations of the Federal

Competition Commission, Francisco Maass Pena,

addressed to Rhone-Poulenc Rorer, S.A. The

letter, which has as a subject matter line ″Re:

Requirement of Information and several

documents,″ states that, pursuant to the Mexican

Federal Constitution, statutes and implementing

regulations, the Commission had initiated an

official investigation of the market of common

vitamins. The letter then identifies in 32 numbered

paragraphs information and documents

Rhone-Poulenc was to file with the Commission

within 10 days and concludes by stating that,

″based on the provisions of articles 34

sections I and II of the Federal Law on

Economic Competition and 42 of the [*23]

Internal Regulations of the Federal

Competition Commission, you are warned

that if the obligations contained herein are

not fulfilled, this Commission shall

proceed to impose a fine equivalent to

fifteen hundred times the minimum

outstanding wage in Mexico City.″

Plaintiffs submitted no counter declarations,

affidavits or citations to Mexican law.

5. Japan Fair Trade Commission


defendants, two of the defendants made

submissions to the government of Japan. Takeda

made fourteen submissions to the Japan Fair

Trade Commission (″JFTC″) on February 3, 2000.11

[*24] Daiichi made five submissions to the

JFTC between March 21, 2000, and November

10, 2000. 12 As noted, supra note 6, at 7, Takeda

has withdrawn its opposition to plaintiffs’ motion

insofar as it relates to the company’s submissions

to the JFTC and thus has produced to plaintiffs

those submissions identified in its privilege log. 13

With respect to the Daiichi submissions remaining

in issue, the record contains an affidavit, submitted

by defendants, of Tadashi Ishikawa, a Japanese

attorney-at-law of Oh-Ebashi Law Offices who

attests to being an expert on the Japanese

Anti-Monopoly Act. Mr. Ishikawa states that the

JFTC is empowered to compel production of

documents, but by custom prefers voluntary

11 Takeda’s logs describe these submissions variously as memoranda of interviews of Mr. Takatoshi Nagura, Mr. Toshiyuki Asaoka,

Mr. Hideo Yamabe, Mr. Masatake Higaki, Mr. Shuko Inui, Mr. Shigeto Maeda. Eight of the submissions are further described as

memoranda or supplemental memoranda of interviews of these individuals prepared for Teruji Ono, member of the Board and General

Manager of the Legal Department of Takeda, by Miyake & Yamazaki. The other six submissions are described as memoranda of

interviews of these same individuals by the U.S. Department of Justice, prepared for and at the request of Teruji Ono by each such

individual.

12 Daiichi’s logs describe these materials as submissions to the JFTC regarding calpan and reports in response to JFTC Questionnaire

regarding calpan.

13 On December 21, 2001, plaintiffs filed a Motion for Leave to Supplement the Record with documents produced and marked for

identification at the Rule 30(b)(6) deposition of Takeda Chemical Industries, Ltd., which Takeda’s counsel represented to be the

company’s submissions to the JFTC. Plaintiffs’ motion is granted and the attached documents are received into the record.

Page 19 of 58

2002 U.S. Dist. LEXIS 26490, *21

http://advance.lexis.com/api/document?collection=statutes-legislation&id=urn:contentItem:4YF7-GP91-NRF4-42BV-00000-00&context=1000516

submissions. Ishikawa Aff. P 4. He further states

that if a party refuses to produce documents on a

voluntary basis, ″the JFTC can compel such party

to produce the requested documents,″ and that

failure [*25] to comply with such an order leads

to a ″criminal penalty.″ Id. P 5. Mr. Ishikawa

concludes by stating that ″it is evident under

Japanese Law that the JFTC has the duty to

preserve the secrecy of the documents it obtains

through compulsory or voluntary submissions.″

Id. P 6.


Curtis J. Milhaupt, the Fuyo Professor of Japanese

Law and Legal Institutions and the Director of the

Center for Japanese Legal Studies at Columbia

Law School. Prof. Milhaupt states that the

Japanese defendants’ submission of documents to

the JFTC was voluntary. Milhaupt Decl. P 6. He

explains that ″although the JFTC had legal

authority to compel submission of documents and

records pursuant to Section 46 of the AML

[Anti-Monopoly Law], it had not invoked this

legal authority with respect to the Japanese

defendants in this case,″ and ″had the defendants

failed to comply with the JFTC’s informal request

for documents, such failure would not have been

punishable under Japanese law.″ Id. Prof. Milhaupt

further states that the JFTC’s obligation under

Section 39 of the AML to maintain the

confidentiality of certain nonpublic information

obtained is limited [*26] to trade secrets, and that

″information relating to a firm’s possible violation

of the antimonopoly laws does not constitute a

’secret’ for purposes of Section 39 of the AML.″

Id. PP 7-8, 10.

6. European Commission


defendants, ten of the defendants made

submissions to the European Commission (″EC″).

Thus, Roche made eight submissions between

June 2, 1999, and December 23, 1999). 14[*27]

BASF made five submissions between June 15,

1999, and September 29, 2000. 15 Rhone-Poulenc

made six submissions between May 19, 1999, and

October 6, 2000. 16 Takeda made six submissions

between October 18, 1999, and July 20, 2001. 17

Daiichi made five submissions between July 9,

1999, and October 2, 2000. 18 Merck made four

submissions on dates not revealed in the record)19

[*28] Reilly made two submissions, on June

16, l999. 20 Degussa made four submissions

between September 9, 1999, and September 29,

14 According to Roche’s log, those submissions included cover correspondence, correspondence, memoranda, business documents, and

materials regarding one or two straight vitamins, market shares, and anticompetitive conduct.

15 BASF’s logs describe these submissions as, among other things, ″Letter enclosing report on alleged vitamins conspiracies,″ ″Letter

and attachments providing and describing documents related to alleged vitamins conspiracies,″ and ″Letter and attachments providing

additional information about BASF AG’s role in alleged vitamins conspiracies,″ and ″Letter and attachments providing information with

respect to alleged Chlorine Chloride conspiracy.″

16 Rhone-Poulenc’s log describes these submissions as cover correspondence from outside counsel attaching ″Submission,″

″Supplemental Submission,″ business documents of Rhone-Poulenc and Hoechst Marion Roussel, S.A., ″Response to Commission

Questionnaire,″ and ″Reply to Statement of Objections.″

17 Takeda’s log describes these submissions as cover letters and enclosures providing ″Response[s] to European Commission Statement

of Objections,″ and ″Response[s] to Request[s] for Information.″

18 Daiichi’s log describes these submissions as ″Confidential Statement[s] * * * To The European Commission,″ ″Repl[ies] To

Request[s] for Information,″ and response to statement of objections.

19 The log for these submissions describe them as letters and documents responding ″to request[s] for information from European

Commission regarding vitamins inquiry,″ ″Response to Statement of Objections,″ and ″Documents submitted to European Commission

at oral presentation regarding vitamins inquiry.″

20 Reilly’s log describes these submissions as ″document search and collection from files of’ Reilly and ″summary verification of oral

response given to questions posed during EC visit on or about June 16, 1999.″

Page 20 of 58

2002 U.S. Dist. LEXIS 26490, *24

2000. 21 Finally, Lonza made seven submissions

between September 24, 1999, and July 3, 2000. 22

Both sides submitted European Economic

Community (″EEC″) Regulation No. 17/62,

implementing Articles 85-86 of the Treaty

establishing the EEC. Articles 11 through 16 of

the Regulation empower the Commission to

conduct investigations of competition in any sector

of the economy and enforce its requests for

information and other [*29] investigative activities

by fines and penalties. Article 20, entitled

″Professional secrecy,″ provides that ″Information

acquired * * * shall be used only for the purpose

of the relevant request or investigation″; that the

Commission ″shall not disclose information

acquired″; and that these provisions ″shall not

prevent publication of general information or

surveys which do not contain information of

undertakings.″

Defendants made further submissions in support

of their contentions. Roche submitted an affidavit

of Thomas Lubbig, a partner in the law firm of

Freshfields Bruckhaus Deringer, in Berlin,

Germany, who states that his firm represented

Roche in seeking leniency from the EC. Lubbig

Aff. PP 1-2. Mr. Lubbig further states that Roche

approached the EC in May 1999, ″in keeping with

its desire to fully cooperate with the Commission

and participate in the leniency program.″ Id. P 3.

According to Mr. Lubbig, ″the Commission is

bound by Treaty provisions and regulations to

preserve professional secrecy and confidentiality,″

and Roche ″clearly expected that all cooperation

and correspondence, submissions and other

documentation would be maintained in the strictest

confidentiality. [*30] ″ Id. P 6.

Defendants submitted a letter from counsel for

Roche, BASF, and Rhone-Poulenc, dated

September 13, 2001, to Georg De Bronett, Head

of the EC’s Cartel Unit, written ″to address the

confidentiality of voluntary submissions (the

’Confidential Submissions’) made under the

Commission’s Leniency Program by [the three

named companies] * * *.″ Counsel asserted that

″there is a deficiency of instructive U.S. case law

on this important topic″ and ″without appropriate

guidance from the European Commission or other

sources, the U.S. court might be inclined to rely

once again on the familiar and expansive Federal

Rules of Civil Procedure.″ Counsel concluded

that, ″[a] proactive statement from the Commission

* * * would provide the U.S. court with the

necessary guidance for deciding this important

issue.″

Defendants also submitted Mr. De Bronett’s

October 5, 2001, response to their September 13,

2001, letter, stating ″that the Cartel Unit came to

a preliminary conclusion in respect of the issues

raised.″ The ″main issue,″ said Mr. De Bronett, is

″whether or not submissions produced within the

framework of the Commissions’s Leniency

Program are communicable to plaintiffs under

[*31] the discovery procedures in the course of a

US civil litigation.″ On this issue, Mr. De Bronett

concludes:

″Should all documents and statements

provided to the Commission by

companies/US defendants as a result of a

leniency application, have to be

communicated to US plaintiffs in the

course of a US civil litigation, the

effectiveness of the EU antitrust

procedures could indeed be seriously

undermined.

″* * *

21 Degussa’s log describes these submissions as letters ″responding to * * * request[s] for information,″ a letter ″regarding timing of

response,″ and a letter ″regarding investigation.″ Degussa’s Privilege Redact Log also identifies two charts, one letter with attached

memorandum, and a set of handwritten notes as ″Taken from Degussa AG by the European Commission.″

22 Lonza’s log describes these materials as ″Response[s] to Request[s] for Information,″ ″Comment to EU Commission Complaint,″

and ″Presentation of European Commission.″

Page 21 of 58

2002 U.S. Dist. LEXIS 26490, *28

″The Leniency Program should not be a

shortcut for US plaintiffs to build their

civil cases by simply requesting ’all

documents submitted to the Commission

in the framework of the Leniency

Program’. To allow such requests would

undermine our Leniency Program and

serve as a disincentive to applicants.

″* * * The Leniency Program should not

act either as a shield for companies/US

defendants trying to conceal information

that otherwise would have been

’discoverable’. The purpose of the

Leniency Program is not to prevent access

to such material.″

In response, plaintiffs submitted an affidavit of

Thomas K. Usher, a partner in the London law

firm of S J Berwin, who attests to a specialty in

European Community law and, in particular,

competition law. According [*32] to Mr. Usher, it

is a ″fundamental right of all defendants (i.e.

addressees of a Statement of Objections) in

European Commission investigations that they are

given sufficient access to all documents making

up the Commission’s file * * * .″ Usher Decl. P

4.2. With respect to requests for information

pursuant to Article 11(3) of Regulation 17, ″where

the information requested is not supplied * * * or

the information is incomplete, the Commission

can require, by decision, that the information″ be

supplied and impose penalties for noncompliance

thereafter. Id. P 5.2. In Mr. Usher’s view, ″it is at

this stage that parties can truly be said to be

compelled to respond.″ Id. Mr. Usher also states

that Regulation 17 contemplates that the

Commission may disclose information that it has

obtained when it is in the public interest for it to

do so: ″There is, therefore, a general acceptance

under EU procedure that in certain circumstances,

complainants (or even potential complainants)

can have access to documents such as a Statement

of Objections.″ Id. P 6.6. While true business

secrets may never be disclosed without consent,

Mr. Usher states that such secrets are limited to

dealer [*33] prices, costs of manufacturing and

production, and information of a similar character

that, if disclosed, would harm the company’s

″legitimate business interests.″ Id. PP 6.8-6.9.

Finally, Mr. Usher states that any suggestion that

disclosure of documents submitted for use in civil

proceedings might decrease the effectiveness of

the Commission’s Leniency Program must be

considered in light of the Commission’s notice of

July 18, 1996, which states:

″The fact that immunity or reduction in

respect of fines is granted cannot prevent

an undertaking from the civil law

consequences of its participation in an

illegal practice. In this respect, if this

information provided by an undertaking

regarding a cartel leads the Commission to

take a decision pursuant to Article 81(1) of

the EC Treaty, the part played in the

illegal practice by the undertaking

benefiting from immunity from the fine

will be described in full in the decision.″

See Usher Decl. P 7.1 (emphasis added).

7. Australian Competition and Consumer

Commission


defendants, three of the defendants made

submissions to the Australian Competition and

Consumer [*34] Commission (″ACCC″). Roche

made two submissions on August 1, 2000. 23

BASF made two submissions, one on July 30,

23 The submissions are described as a ″Statement of Executive of Roche Vitamins Asia Pacific Pte Ltd″ and a ″Statement of Executive

of Roche Vitamins Australia Pty Limited with Exhibits.″

Page 22 of 58

2002 U.S. Dist. LEXIS 26490, *31

1999, and one on October 20, 2000. 24

Rhone-Poulenc made six submissions between

July 22, 1999, and September 2, 1999. 25

As to whether those submissions were voluntary

or compelled, and made under a promise of

confidentiality, defendants submitted four

affidavits, including one of Brian David Cassidy,

Chief Executive Officer of the ACCC since June

19, 2000. Mr. Cassidy states that in June 1999, the

solicitors for BASF and Rhone-Poulenc

″separately approached the Commission and

offered to cooperate with the Commission in its

investigation of anti-competitive arrangements

affecting vitamins in Australia.″ Cassidy Aff. P 9.

In September 1999, the ACCC contacted Roche

seeking its cooperation and Roche agreed. Id. P

10. According to Mr. Cassidy, each of these

companies ″voluntarily provided the Commission

with statements of evidence of current or former

employees of certain Australian subsidiaries of

the Foreign Defendants * * * on condition that

they were provided on a confidential basis.″ Id. P

11. Each company also voluntarily made current

or former employees [*35] available for interview

by the Commission on the condition that the

interviews were to be conducted on a confidential

basis. Id. The ACCC has not, to Mr. Cassidy’s

knowledge, disclosed any of the information

contained in the submissions. Id. P 12.

The ACCC, Mr. Cassidy recounts, then brought

legal proceedings against the Australian [*36]

subsidiaries of these foreign defendants in which

statements of agreed facts were filed and

admissions made. Id. P Id. These proceedings

resulted in orders of the Federal Court of Australia

against the subsidiaries, including imposition of

the highest pecuniary penalties to date for

anti-competitive conduct. Id.

Mr. Cassidy explains that the ACCC must be able

to obtain relevant information to carry out its

functions of ″fostering competitive, efficient, fair

and informed Australian markets.″ Id. P 16. He

states that the ACCC seeks to conclude

investigations with negotiated settlements as a

means of ″saving the Commission and the Court

(and ultimately the community) the cost and

burden of litigating a lengthy and expensive

case.″ Id. P 21. He asserts that ″potential

respondents are much less likely to volunteer full

and frank cooperation, if confidential information

and documents provided to the Commission as

part of that cooperation can be readily accessed by

third parties * * * .″ Id. P 22.

According to Mr. Cassidy, the Commission has

the power to compel parties to furnish information

and produce documents, but a legislative

precondition is that it ″has a reason [*37] to

believe that a person or corporation is capable of

furnishing information or producing documents

that relate to a matter that contravenes or may

contravene the [Trade Practices] Act.″ Id. P 23.

This power, Mr. Cassidy states, is an inadequate

substitute for the voluntary provision of

information in cases such as the vitamins matter

because, without voluntary cooperation, ″a relevant

’reason to believe’ may have been difficult to

form.″ Id. P 24. He also states that if the

Commission had not agreed to accept these foreign

defendants’ submissions on a confidential basis,

their cooperation would have been unlikely. Id. P

26.

Mr. Cassidy believes that the ACCC would be

entitled before an Australian court to claim ″public

interest immunity,″ a form of privilege, which, if

sustained, would shield the documents and

information submitted to the ACCC from

24 BASF’s log describes these submissions as a submission with attachments providing information about alleged vitamins

conspiracies and a letter enclosing statement of BASF Australia Limited executive and other materials regarding alleged vitamins

conspiracies.

25 Rhone-Poulenc’s log describes these submissions as a summary statement by outside counsel and two statements of employees and

three statements of former employees of Rhone-Poulenc Animal Nutrition Pty Limited.

Page 23 of 58

2002 U.S. Dist. LEXIS 26490, *34

disclosure. Id. P 29. He states his belief that if the

ACCC submissions were made available to the

plaintiffs, ″it may prejudice the public interest in

Australia″ by discouraging other overseas

companies from approaching the Commission and

by jeopardizing future resolution of ACCC

investigations by way of settlement negotiations.

[*38] Id. PP 31-32.

Defendants also submitted an affidavit of Peter

James Armitage, a partner at the Sydney law firm

of Blake Dawson Waldron who is outside counsel

for BASF Australia Ltd. and BASF AG. Mr.

Armitage states that, in June 1999, his law firm

contacted the ACCC and indicated that one of its

clients wanted to cooperate with the ACCC in its

vitamins investigation, but that the fact of its

cooperation and information it supplied were to

be kept confidential. Armitage Aff. PP 7-8. It is

Mr. Armitage’s understanding that BASF would

not have cooperated or engaged in settlement with

the ACCC if it had not been assured that

confidentiality would be maintained. Id. P 11.

Defendants also submitted an affidavit of William

Robert McComas, a former Chairman of the

Trade Practices Commission (the predecessor of

the Australian Competition and Consumer

Commission), and a former partner in the Sydney

firm of Clayton Utz, which represents Roche

Vitamins Australia Pty Limited. Mr. McComas

states that in September 1999, the ACCC asked

Roche if it would assist the ACCC’s vitamins

investigation. McComas Aff. P 4. Mr. McComas

explains that he negotiated an agreement with the

ACCC under which [*39] Roche would voluntarily

prepare and provide to the ACCC draft statements

concerning matters relevant to the ACCC

investigation, and upon request make available

the authors of such statements for voluntary

interviews to be conducted on a confidential

basis. Id. P 7(a)-(c). Subject to a full and frank

disclosure by the relevant company officers, the

ACCC would grant those officers immunity from

subsequent proceedings for the imposition of

pecuniary penalties. Id. P 7(d). Mr. McComas

asserts that Roche’s officers would not have

provided statements to the ACCC or voluntarily

participated in interviews if the ACCC had not

entered into the cooperation agreement. Id. P 10.

Attached to the affidavit is a September 18, 2000,

letter to the ACCC from counsel for Roche

explaining that ″the Commission will show an

extract or extracts of the Statements or of the

Transcript to any other person involved in the

Vitamins matter only where in the reasonable

opinion of the Commission it is necessary to do

so, and only on the basis of a written undertaking

of confidentiality from that person.″ That letter,

Mr. McComas states, indicates that an official of

the ACCC agreed to the terms of the [*40] letter

through his signature.

Finally, defendants submitted an affidavit of

Andrew John Christopher, a partner in the Sydney

office of Baker & McKenzie, who represents

Rhone-Poulenc and attests to an expertise in

competition law and policy. Mr. Christopher states

that in July 1999, he expressed to the ACCC his

client’s readiness to cooperate in the ACCC’s

investigation into the Australian animal vitamin

industry on the express condition that any

documents and information provided would be

kept confidential. Christopher Aff. P 7. Mr.

Christopher states that it is his belief that

Rhone-Poulenc would not have agreed to

participate in any voluntary discussions with the

ACCC or to cooperate with the ACCC by

providing documents unless strict confidentiality

arrangements were first in place. Id. P 9. According

to Mr. Christopher, he believed at the time of

deciding to cooperate with the ACCC that the

ACCC was prepared to accept such a

confidentiality regime and that public interest

immunity had been successfully claimed by a

number of government authorities or state

agencies, or persons claiming through them, in

analogous circumstances. Id. P 10. Mr. Christopher

explains that, in [*41] his experience, ensuring

that material provided to the ACCC is not later

Page 24 of 58

2002 U.S. Dist. LEXIS 26490, *37

obtained by third parties is a very important and

critical requirement of clients with whom he deals

and is typically required before they agree to

cooperate. Id. P 11. Finally, he states that if a

foreign court ordered the release or disclosure of

materials confidentially provided to the ACCC, ″it

could seriously inhibit or undermine the

willingness of persons in Australia to provide

voluntary assistance and cooperation to the ACCC

* * *.″ Id. P 12.


Bret William Walker, a Senior Counsel practicing

at the New South Wales Bar. According to Mr.

Walker, ″public interest immunity operates in

Australian law to exclude the production of

relevant and admissible documents or evidence if

disclosure of the documents or evidence would be

prejudicial to the public interest.″ Walker Decl. P

7. The applicability of public interest immunity is

determined by balancing ″whether harm would be

done by the production of the documents and

whether the administration of justice would be

frustrated or impaired if the documents were

withheld.″ Id. P 10. Mr. Walker acknowledges

[*42] that a claim may be made for public

interest immunity with respect to documents

obtained by the ACCC, but says that such a claim

would necessarily be determined on a

document-by-document basis. Id. P 12. He states

further that ″the courts have not given the possible

detrimental effect on future investigations and

voluntary co-operations, as expressed by Mr

Cassidy, any significant weight when undertaking

the balancing exercise,″ and discusses the case

law underlying his conclusion, which he attaches.

See id. PP 15-17.

Confidentiality, Mr. Walker says, is not a separate

privilege but is considered relevant to the question

of public interest immunity. Id. P 19. He explains

that any confidentiality agreement between the

ACCC and the Australian subsidiaries exists only

between those parties. Id. P 21. In conclusion, Mr.

Walker expresses his view that there is no certainty

that an Australian court would uphold a claim for

public interest immunity in this case. Id. P 26. He

gives the following reasons for his view: (a) while

a court would take into account the policy concerns

of the ACCC, those concerns would be balanced

against the relevant interests involved, including

[*43] the plaintiffs’; (b) the ACCC investigation

has long been completed and penalties have been

imposed and there is little likelihood that any

particular continuing investigation would be

compromised by disclosure; (c) the likely

impairment of future investigations by inhibition

of voluntary cooperation would not require a

court to conclude that the public interest in

nondisclosure outweighed that of disclosure; and

(d) that the documents were provided to the

ACCC under an assurance of confidentiality, as

embodied in the ACCC agreement, would not in

itself operate to prevent disclosure. Id. Summing

up his position, Mr. Walker states ″although an

Australian court would take into account the

policy concerns of the ACCC, they would not be

of themselves determinative of the issue as the

court, following established authority, would be

required to balance them against the public interest

in disclosure.″ Id. P 27.


Governments

A second issue presented to the Special Master is

whether defendants must produce any ″other

written communications″ submitted to any

governmental authority. Defendants have neither

logged specifically nor listed by general [*44]

categories their other written communications

submitted to governmental authorities in the

United States or abroad. Therefore, other than the

description set forth in the parties’ stipulation,

approved by the Court’s August 17, 2001, Order,26 the record does not reveal any more precisely

the nature and volume of such documents or the

identity of any defendant that submitted such

26 Paragraph 5 of that Order provides that excluded from the term ″written substantive communications″ are

Page 25 of 58

2002 U.S. Dist. LEXIS 26490, *41

documents or any governmental authority that

received them. I infer from defendants having

argued that such documents are protected from

disclosure by Rule 6(e) of the Federal Rules of

Criminal Procedure that one or more defendants

in fact submitted such documents to the Justice

Department. The record does not reveal whether

any of the defendants submitted such documents

to any foreign governmental authority.

[*45] C. Internal Investigation Documents

A third issue presented to the Special Master is

whether the foreign defendants should be protected

from having to provide in response to Document

Request No. 4 more detailed,

document-by-document logs of all documents

created, transmitted, or received in the course of

any internal investigation conducted by or for

them. Drawing upon defendants’ counsels’ letters

and lists provided pursuant to paragraphs 5-7 of

the Courts’s August 17, 2001, Order, this section

of the Report identifies, defendant by defendant,

the nature of any internal investigation conducted,

and the general categories and volume of

documents generated by the investigation. Based

on the same sources, it also identifies current or

former employees who met with or were

interviewed by the Justice Department or any

other governmental agency and whether notes or

memoranda or other documents summarizing or

discussing any such meeting or interview or grand

jury or other testimony exist.

1. Roche

Roche states that it did not undertake an internal

investigation of the conduct at issue in these

proceedings. It states, however, that documents

were prepared by or at the direction [*46] of

counsel retained to represent Roche in ongoing

and expected court proceedings as part of their

effort to develop the facts as to what transpired. In

preparing its list, Roche has interpreted Document

Request No. 4 as seeking these documents.

Roche states that its internal investigation

documents, numbering approximately 200,

one-third of a ″standard miracle box,″ fall into

four ″broad categories″:

(a) Counsel’s memoranda or notes of

interviews by Roche counsel of current

and former Roche employees;

(b) Memoranda, chronologies,

spreadsheets, or other summary documents

prepared by Roche counsel setting forth

counsel’s understanding of ″core

conspiracy″ facts;

(c) Roche counsel’s notes or memoranda

of meetings with other defense counsel

and communications among counsel for

defendants; and

(d) Roche counsel’s notes or memoranda

of meetings with counsel for non-defendant

present or former employees of Roche and

communications among such counsel.

Counsel for Roche believes that 17 present or

former employees were interviewed by or provided

statements to governmental authorities regarding

conspiratorial conduct among vitamins

″all written communications which do not discuss or refer to any aspect of the alleged vitamins conspiracy or conspiracies

including, but not limited to, routine correspondence confirming meetings (and containing no other substantive information

about the alleged vitamins conspiracy or conspiracies), routine transmittal letters forwarding documents (and containing no

other substantive information about the alleged vitamins conspiracy or conspiracies), submissions or studies regarding

general market conditions, submissions regarding the use, consumption or manufacture of vitamins or vitamins containing

products, or submissions regarding the finances or financial condition of any of the Foreign defendants.″

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2002 U.S. Dist. LEXIS 26490, *44



competitors. 27 Roche is aware [*47] of one or

more memoranda reflecting or discussing

interviews of 12 of the 17 individuals, all but one

of whom are persons named by Roche in response

to plaintiffs’ Interrogatory No. 5B. 28 Counsel

states that none of these internal investigation

materials have been disclosed to governmental

authorities or any other third party.

2. BASF

BASF identifies four general categories of

″privileged ’Internal Investigation Documents’″

in its files, none of which were provided to third

parties:

(a) BASF counsel’s notes and memoranda

of BASF counsel’s interviews of present

and former employees;

(b) Memoranda, letters and other

correspondence between BASF and

counsel regarding legal advice and factual

analysis;

(c) BASF counsel’s memoranda to file,

notes and other material prepared for

internal use;

(d) Notes of joint defense meetings.

Counsel for BASF reports that 10 BASF

employees met with governmental authorities. 29

BASF has [*48] attorney memoranda and/or notes

summarizing the government interviews of seven

of those individuals, all but one of whom are

persons named by BASF in response to plaintiffs’

Interrogatory 5B. 30 According to counsel, BASF’s

internal investigation documents were created

during the course of counsel’s factual investigation

for the purpose of providing legal advice to BASF

in connection with the grand jury investigation

and related civil proceedings.

3. Daiichi

Daiichi states that its outside counsel conducted

an internal investigation for the purpose of

providing legal advice in connection with the

grand jury investigation and subsequent criminal

information. Counsel identified two general

categories of internal investigation documents

prepared subsequent to April 1, 1999, and after

contact by the Justice Department and

commencement of civil litigation:

(a) Notes, memoranda, and other

documents prepared by Daiichi counsel of

attorney interviews [*49] of current or

former Daiichi employees;

(b) Notes, memoranda, and other

documents prepared by current or former

Daiichi employees at the direction of

Daiichi counsel.

Ten current or former employees met with the

U.S. Department of Justice, Canadian Competition

Bureau, or Japan Fair Trade Commission. 31

Counsel states that interview notes and/or

memoranda exist for six of the ten named

individuals. 32 According to counsel, Daiichi

possesses no internal investigation documents that

have been disclosed to third parties. Daiichi has

not provided an estimate of the volume of such

documents.

4. Merck

27 [REDACTED]

28 [REDACTED]

29 [REDACTED]

30 [REDACTED]

31 [REDACTED]

32 [REDACTED]

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2002 U.S. Dist. LEXIS 26490, *46

Merck states that any internal investigation

documents were created by its counsel in

connection with the U.S. civil litigation and in the

course of counsel’s dealing with governmental

entities, including the Justice Department. Merck

lists five ″general categories″ of such documents:

(a) Notes and memoranda summarizing

interviews of [*50] current or former

employees;

(b) Correspondence and memoranda to

and from clients;

(c) Memoranda to files prepared by

counsel, including legal research;

(d) Notes and memoranda of attorneys

reflecting internal work product; and

(e) Documents reflecting communications

with local counsel for Merck.

Counsel lists five employees or former employees

who met with or were interviewed by a regulatory

authority or governmental entity, 33 and states that

Merck has notes of the interviews of two

individuals, one of whom was named by Merck in

response to Interrogatory No. 5B. 34 According to

counsel, the internal investigation documents, none

of which has been shared with any third-party,

were prepared in anticipation of the ongoing

litigation. Counsel estimates that the volume of

such documents ″is approximately one box.″

5. Lonza

Lonza states that its outside counsel conducted an

internal investigation for the purpose of providing

[*51] legal advice in connection with the grand

jury investigation and subsequent criminal

information. Lonza’s internal investigation

documents, of a volume ″that can be contained in

one two-inch, three-ring binder,″ include:

(a) Attorney memoranda of witness

interviews;

(b) Attorney notes of witness interviews;

(c) Attorney notes of discussions with

client;

(d) Attorney internal work product; and

(e) Correspondence with clients relating to

status, strategy and options.

Counsel lists eight individuals who met with

governmental agencies, 35 and reports that notes

of the interviews exist for four of the eight

individuals, each of whom was named in Lonza’s

response to plaintiffs’ Interrogatory 5B. 36

6. Degussa

Degussa, according to its counsel, did not

undertake any formal internal investigation

regarding its participation in any vitamins

conspiracy. Assuming ″internal investigation

documents″ means documents referring [*52] or

relating to the gathering of factual information by

its counsel for the purpose of providing legal

advice in connection with the grand jury

investigation, the criminal information, and the

civil actions now before this Court, Degussa

identifies four documents on its ″Privilege Redact

Log,″ described there as ″taken from Degussa AG

by the European Commission,″ as internal

investigation documents plus the following four

general categories of such documents:

(a) Notes and memoranda prepared by

Degussa counsel regarding interviews

conducted by Degussa counsel;

33 [REDACTED]

34 [REDACTED]

35 [REDACTED]

36 [REDACTED]

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2002 U.S. Dist. LEXIS 26490, *49

(b) Notes and memoranda reflecting

communications with counsel for other

defendants and Degussa’s local counsel;

(c) Memoranda, letters and other

communications to/from outside and inside

counsel for Degussa; and

(d) Memoranda, notes and other materials

prepared by Degussa counsel for the

purposes of preparing for criminal and

civil litigation.

Two current or former employees, each of whom

was named by Degussa in response to plaintiffs’

Interrogatory 5B, met with or were interviewed

by a governmental agency, 37 and counsel states

that notes, memoranda or other documents

summarizing or discussing [*53] those meetings

or interviews exist. Degussa has not provided an

estimate of the volume of such documents.

7. Rhone-Poulenc

According to its counsel, none of the

Rhone-Poulenc companies engaged in an internal

investigation as their counsel understands that

term. Counsel lists the following ″general types of

documents″ generated by or at the direction of

outside counsel retained to represent the companies

in criminal and civil proceedings in collecting

facts and investigating anti-competitive conduct:

(a) Memoranda and notes from interviews

of current and former employees of the

companies conducted by outside counsel;

(b) Chronologies and spreadsheets

prepared by outside counsel summarizing

counsel’s understanding of the conduct at

issue;

(c) Various written communications

between outside counsel and the companies

re: legal analysis and advice and factual

analysis; and

(d) Outside counsel’s notes and

memoranda of meetings with counsel for

other defendants. [*54]

Nine former and current employees, each of

whom was named by Rhone in response to

Interrogatory No. 5B, met with or were

interviewed by governmental authorities, 38 and,

according to counsel, memoranda exist that

summarize meetings and interviews with

government of each of these individuals.

According to counsel, none of the internal

investigation documents, numbering at least 100,

has been disclosed to third parties.

8. Takeda

Takeda lists four categories of internal

investigation documents that were prepared by

counsel or at the request of counsel for the

purpose of providing legal advice to Takeda in

connection with the grand jury investigation, the

criminal information, and other pending and

possible litigation:

(a) Memoranda re interviews of current

and former employees of Takeda conducted

by outside counsel;

(b) Memoranda re interviews of current

and former employees of Takeda conducted

by governmental agencies;

(c) Written communications between [*55]

Squadron Ellenoff Plesent & Sheinfeld

LLP and/or Takeda and/or other outside

counsel for Takeda re: legal analysis and

advice and factual analysis; and

(d) Handwritten notes re: legal analysis

and advice and factual analysis involving

joint defense communications with other

counsel.

According to counsel, this list takes account only

37 [REDACTED]

38 [REDACTED]

Page 29 of 58

2002 U.S. Dist. LEXIS 26490, *52

of documents created prior to October 14, 1999,

the date Takeda entered its guilty plea in United

States v. Takeda Chemical Industries, Ltd.

Counsel states that Takeda has no internal

investigation documents that were disclosed to

third parties. Six current or former employees,

each of whom was named in response to

Interrogatory No. 5B, met with or were

interviewed by a governmental entity, 39 and notes

or memoranda exist for such meetings or

interviews. Counsel states that Takeda has

potentially 100 or more specific internal

investigation documents.

9. Reilly Industries, Inc., and Reilly Chemicals,

S.A.

According to counsel, [*56] RCSA has not

conducted a separate internal investigation from

that of its domestic parent, Reilly Industries, Inc.,

and Reilly Industries’ internal investigation

included an investigation of RCSA. Counsel

produced a privilege log identifying all documents

resulting from the internal investigation of both

Reilly entities. Reilly counsel states that it has no

additional internal investigation documents shared

with third parties to log and has no categories of

additional documents to report. Reilly states further

that other than as indicated on its log of substantive

communications, it is not aware of any other

Reilly employee, current or former, who has had

any substantive communications with any

government personnel relating to the vitamins

investigation. 40 Reilly lists five ″additional″

individuals who met with government officials

but states that these conversations were not

substantive 41 and that there are no notes or other

documents about these conversations.

[*57] PARTIES’ CONTENTIONS

A. Plaintiffs’ Contentions


Plaintiffs recount that these foreign defendants

have produced logs identifying highly relevant

″core conspiracy″ and other submissions to

governmental authorities which, though called for

by Document Request Nos. 1 and 2, have been

withheld in reliance upon a number of asserted

privileges and protections. Plaintiffs seek these

documents to establish the parameters, impact and

damages of the conspiracy, and assert that the

submissions have heightened significance for two

related reasons: first, they allege that defendants

systematically destroyed documents implementing

and enforcing the conspiracy; and second, they

state that most, if not all, of the knowledgeable

current and former employees of the foreign

defendants who operated and enforced the

conspiracy will assert the Fifth Amendment and

refuse to answer any substantive questions

regarding the conspiracy in their depositions.

Plaintiffs also argue that none of the various

privileges and protections relied upon by

defendants in refusing to produce these

submissions applies. First, they contend that

defendants [*58] have no legal or factual basis to

withhold these documents based upon the law

enforcement or investigative privilege. That

privilege belongs solely to the particular

governmental agency conducting the investigation,

not private parties, plaintiffs say, citing Ass’n for

Women in Science v. Califano, 185 U.S. App.

D.C. 19, 566 F.2d 339, 343 (D.C. Cir. 1977), and

there are strict requirements for asserting it, citing

United States v. Winner, 641 F.2d 825, 831 (10th

Cir. 1981), that have not been met.

Next, plaintiffs contend that Rule 6(e) of the

Federal Rules of Criminal Procedure gives

defendants no grounds to withhold any documents

39 [REDACTED]

40 [REDACTED]

41 [REDACTED]

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submitted to governmental authorities or to refuse

even to log the ″other written communications″

withheld from production although submitted to

governmental authorities that were their

adversaries. Plaintiffs say that defendants’ reliance

upon In re Milk Products Antitrust Litigation, 84

F. Supp. 2d 1016 (D. Minn. 1997), as grounds for

their refusal to log such documents is misplaced

because the Department of Justice has stated in

writing that it has no objection to plaintiffs

obtaining documents produced by companies

voluntarily [*59] or involuntarily to the

government. Plaintiffs also contend that Rule 6(e)

only protects matters occurring before the grand

jury, not materials sought for their own intrinsic

value, and that the weight of authority holds that

the Rule does not permit these defendants to

withhold the documents they provided to the

government. Additionally, plaintiffs contend that

the Rule does not shelter written statements

submitted by witnesses to governmental authorities

or summaries of facts disclosed in witness

interviews, particularly where the interview notes

are the best and only information available from

witnesses who participated in or had

contemporaneous knowledge of the conspiracy

but have signified their intention to claim the Fifth

Amendment in response to all substantive

questions.

Plaintiffs say that the self-evaluative privilege

cited by defendants as a basis for protecting their

submissions to governments has no application

here. According to plaintiffs, the D.C. Circuit has

rarely upheld the assertion of this privilege, having

″adopted a very narrow definition of the privilege″

and restricting it to ″cases involving public health

and safety,″ citing Mergentime Corp. v. Washington

Metro. Area Transp. Auth., 1991 U.S. Dist. LEXIS

11080, No. 89-1055, 1991 WL 167005, [*60] at

*4 (D.D.C. Aug. 6, 1991).

Plaintiffs assert that defendants waived any

attorney-client privilege or work product

protection that might have attached to documents

they submitted to United States or foreign

governmental authorities. Citing In re Subpoenas

Duces Tecum, 238 U.S. App. D.C. 221, 738 F.2d

1367, 1372-75 (D.C. Cir. 1984), plaintiffs contend

that voluntary disclosure to the government of

otherwise privileged or protected internal

investigation materials waives any such privilege

or protection. Plaintiffs add that a party’s

disclosures to a law enforcement authority are

considered voluntary even if ″practical pressures

and the legal constraints″ upon that party forced

the disclosures, citing United States v. Mass. Inst.

of Tech., 129 F.3d 681, 686 (1st Cir. 1997).

Plaintiffs emphasize that the attorney-client

privilege protects only those communications

made in confidence and kept confidential.

Defendants’ submissions to the government

authorities, domestic or foreign, investigating the

vitamins conspiracy, i.e., their adversaries, also

waived the work product protection, plaintiffs say,

citing In re Sealed Case, 219 U.S. App. D.C. 195,

676 F.2d 793, 817 (D.C. Cir. 1982), [*61] and

Madanes v. Madanes, 186 F.R.D. 279, 293

(S.D.N.Y. 1999).


Turning to the internal investigation documents,

producible in response to Document Request No.

4, but withheld on grounds of the attorney-client

privilege and work product protection, plaintiffs

contend that Rule 26(b)(5) and the common law

require defendants to provide detailed,

document-by-document logs to give plaintiffs and

the Court a basis to assess the validity of the

asserted privileges. Plaintiffs say that defendants’

lists of general categories of these documents are

so broad as to be meaningless, and that defendants

are required at a minimum to provide a log

identifying each document and the date it was

prepared, the parties to the document and others

receiving copies, its subject matter, and each

asserted privilege or protection, citing Rule

26(b)(5); United States v. Exxon Corp., 87 F.R.D.

624, 637 (D.D.C. 1980); Alexander v. FBI, 186

F.R.D. 102 (D.D.C. 1998).

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Plaintiffs say that the failure to produce sufficient

logs is more egregious given the probability that

defendants will be unable to sustain their burden

of [*62] demonstrating that any claims of privilege

apply. Plaintiffs contend that any privilege or

protection was waived by defendants’ use of those

internal investigation documents as the basis for

subsequent disclosures to various governmental

authorities and that, in any event, any assertion of

work product protection may be overcome by

plaintiffs’ substantial need for this information.

Defendants, plaintiffs argue, are not excused from

logging based on any asserted burdens of preparing

the logs, citing Director of Office of Thrift

Supervision v. Ernst & Young, 795 F. Supp. 7, 12

(D.D.C. 1992). In any event, plaintiffs say,

defendants’ estimates of the number of internal

investigation documents are so small -- from 100

to 250 documents per defendant -- that, as a

practical matter, burden is not an issue.

B. Defendants’ Contentions

Defendants respond that plaintiffs’ moving papers

provide no legally justifiable reason to annul the

strong privileges and protections defendants have

asserted. They say that the documents at issue are

protected from discovery ″by well-established

privileges and protections, including the attorney

work product doctrine, the self-evaluative [*63]

privilege and the investigatory privilege,″ and that

many of these same privileges and protections

shield them from any obligation to produce an

itemized log of documents withheld on the basis

of privilege. Defs. Opp. at 2. They urge the Court

to reject plaintiffs’ suggestion that the documents

be produced because they are relevant, saying,

″Relevance is not the issue; privilege is.″ Id.



Defendants acknowledge that the investigatory

privilege generally belongs to the government,

but assert that they are entitled to invoke the

privilege to preserve the right of the relevant

governmental authorities to object until they might

weigh in, citing Blumenthal v. Drudge, 186 F.R.D.

236, 242 (D.D.C. 1999). They say that the Justice

Department has not yet stated whether it objects

to Document Request No. 1, which seeks

production of the package of documents submitted

to the grand jury. Moreover, with respect to

submissions made to foreign governments,

defendants assert they had a reasonable expectation

that the investigatory privilege would block

plaintiffs from accessing them [*64] since the

foreign governmental agencies consider these

submissions confidential. For this reason,

defendants assert, making those submissions to

the foreign governmental agencies could not

constitute a waiver of any other privileges or

protections attached to these documents.

Defendants also contend these written substantive

communications are protected from disclosure by

the self-evaluative privilege. Citing affidavits and

declarations of their outside counsel, defendants

state that their counsel ″undertook thorough and

self-critical ’internal investigations’ to determine

whether violations of their own internal codes of

business conduct or of applicable law had

occurred, the cause of any violations as well as

how they were able to occur, who was involved,

and to ensure that future violations did not occur.″

Defs. Opp. at 34. Relying on Bredice v. Doctors

Hospital, Inc., 50 F.R.D. 249 (D.D.C. 1970), aff’d

mem., 479 F.2d 920 (D.C. Cir. 1973), and

Reichhold Chemicals, Inc. v. Textron, Inc., 157

F.R.D. 522, 524 (N.D. Fla. 1994), they assert that

documents created after the occurrence of an

event and for the purpose of self improvement

[*65] should be protected from disclosure during

discovery in private litigation. They say that many

courts have applied the self-evaluative privilege

where (1) documents sought were created in the

course of an internal investigation or a

self-evaluation; (2) there is a strong interest in

preserving the free flow of the type of information

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contained in the documents; (3) the information is

of a type whose flow would be curtailed if

discovery is allowed; and (4) the party seeking

protection originally intended that the information

remain confidential, and that each of these factors

is met here. Finally, citing United States v. Alex,

Brown & Sons, 963 F. Supp. 235 (S.D.N.Y. 1997),

aff’d sub nom. United States v. Bleznak, 153 F.3d

16 (2d Cir. 1998), defendants argue that these

factors apply as well to documents they created in

response to specific requests by government

authorities in light of the strong public interest in

preserving the free flow of the type of information

contained in those documents.

In addition, defendants contend that certain of

their written substantive communications were

compelled by the foreign governmental authorities

and for that [*66] reason privileges and protections

attached to those documents were not waived and

continue to protect the submissions from

disclosure. They cite and rely on several cases,

including In re Subpoenas Duces Tecum, 238

U.S. App. D.C. 221, 738 F.2d 1367, 1373 (D.C.

Cir. 1984) (acknowledging a distinction between

″voluntary disclosure and disclosure by

subpoena″); Cornelius v. CONRAIL, 169 F.R.D.

250, 253 (N.D.N.Y. 1996) (no waiver of protection

provided by attorney work product doctrine where

″court * * * directed that Conrail produce the

information″); Boston Auction Co. v. W. Farm

Credit Bank, 925 F. Supp. 1478, 1482 (D. Haw.

1996) (no waiver of attorney client privilege

where ″disclosure * * * was not voluntary″).

Defendants assert that the cases relied upon by

plaintiffs for the proposition that even compelled-

responses result in waiver of applicable privileges

and protections are inapposite.

Citing information provided in letters of counsel

written pursuant to the Court’s August 17, 2001,

Order, and Article 11(3) of Regulation 17/62 of

the EEC Antitrust Regulation, defendants assert

that submissions of Takeda, Daiichi, Merck,

Degussa and Lonza [*67] in response to EC

requests for information were ″in all practicality *

* * compelled.″ Defs. Opp. at 19-20. A failure to

comply with a Article 11(3) request will,

defendants say, ″inevitably result in an Article

11(5) demand and will have serious consequences

for that company’s cooperation with the European

Commission’s investigation, adversely affecting

its claim for leniency″; and a failure to comply

with an Article 11(5) demand may result in

imposition of fines. Id. Similarly, defendants assert

that responses of Takeda, Daiichi, Merck and

Lonza to EC statements of objections, which

defendants say are the European equivalent of an

antitrust complaint, are ″the functional equivalent

of a compelled response in that a failure to

respond has severe consequences.″ Id. at 20-21.

Absent a response, according to defendants, a

company may waive its right to appeal points of

fact or law or to request leniency. Defendants

acknowledge that they are aware of no authority

that answers the question whether a response to an

EC statement of objections or request for

information is ″compelled″ as would be the

production of documents in response to a court

order. Id. at 21 n.24.

Citing [*68] the Scholz and Majoras declarations

and the Ishikawa affidavit, defendants argue,

respectively, that the BASF and Rhone-Poulenc

submissions to the Swiss Competition

Commission, the Rhone-Poulenc submission to

Mexico’s Federal Competition Commission, and

the Daiichi submissions to the JFTC were

″required″ responses to requests for information

similar to ″compelled″ responses to EC requests

for information. Id. at 20 n.22. 42 Similarly, citing

the Goncalves and Prais declarations, defendants

contend that the Roche and BASF submissions to

the Brazilian Ministry of Justice were responses

to specific charges, comparable to EC statements

42 At the hearing, defense counsel submitted a letter Rhone-Poulenc received from the Mexican Competition Commission which,

according to counsel, makes clear that that company’s submissions were compelled. Tr. at 140; see, supra, at 13-14.

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of objections, and for that reason are protected

from disclosure. Id. at 21 n.23.

Turning from submissions allegedly made under

[*69] compulsion, defendants acknowledge that

Roche, BASF and Rhone-Poulenc made voluntary

submissions to the Australian Competition and

Consumer Commission on condition that the

ACCC maintain the confidentiality of the

information received; and that the same three

defendants plus Marion Roussell voluntarily

participated in the EC’s leniency program and

made submissions to the EC on condition of

confidentiality. Defendants also state that

assurances of confidentiality were made to Daiichi

and influenced its decision to make voluntary

submissions to the JFTC. Id. at 23 & n.25. 43

Defendants assert that, under principles of

international comity, such submissions, voluntarily

and confidentially made to government authorities

pursuant to cooperation or leniency programs,

effect no waiver of any privilege and remain

protected from disclosure.

[*70] Defendants contend that these foreign

governmental authorities are able to obtain critical

and highly sensitive information through leniency

programs that provide an incentive for companies

to cooperate voluntarily in investigations of

anti-competitive activities; that the government

agencies have a compelling interest in maintaining

the confidentiality of information they receive

from companies that they otherwise could not get

or that they could only obtain after tremendous

effort, time and expense; and that disclosure of the

submissions at issue to the plaintiffs would have a

chilling effect on cooperation and would seriously

undermine these foreign governments’ abilities to

regulate their own citizens. Id. at 23.

Pointing to the record, defendants say Australia

″provides a case in point.″ Id. at 23. They rely

heavily on the affidavit of Brian David Cassidy,

ACCC Chief Executive Officer, quoting

particularly his statement:

″While the prospect of a discounted penalty

is certainly an incentive to co-operate,

potential respondents are much less likely

to volunteer full and frank cooperation, if

confidential information and documents

provided to the [ACCC] as part [*71] of

that cooperation can be readily accessed

by third parties, such as the plaintiffs in

the US Vitamins Matter or potential

plaintiffs in Australia, who may have an

interest in pursuing the potential

respondents for civil liability.″ Id. at 24.

They also rely on Mr. Cassidy’s conclusion:

″If third parties, including plaintiffs in this

case, gain access to the governmental

submissions, then: (a) the ACCC’s ’future

ability to conduct effective investigations

of contraventions of the [Australian

antitrust] Act including by overseas

companies will be seriously impeded’; and

(b) ’the future resolution of Commission

investigations by way of settlement

negotiations including those involving

overseas companies will be jeopardized.’″

Id. at 25-26.

Similarly, defendants quote Mr. De Bronett’s

statements that ″the Leniency Program should not

be a shortcut for US plaintiffs to build their civil

cases by simply requesting ’all documents

submitted to the Commission″ because ″to allow

such requests would undermine [the EC’s]

Leniency Program and serve as a disincentive for

applicants.″ Defs. Supp. Mem. at 2.

43 Defendants appear to be uncertain whether Daiichi’s submissions to the JFTC were ″required″ or ″voluntary.″ See Defs. Opp. at 20

n.22 stating, ″submissions made by Takeda Chemical Industries, Ltd. and Daiichi Pharmaceutical Co., Ltd. to the Japan Fair Trade

Commission were required responses to requests for information, similar to the compelled responses of certain Foreign Defendants to

the European Commission’s Requests for Information″; but compare id. at 23 n.25, ″Takeda Chemical Industries, Ltd. and Daiichi

Pharmaceutical Co., Ltd. made confidential, voluntary submissions to the [JFTC].″

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2002 U.S. Dist. LEXIS 26490, *68

In the instant circumstances, defendants say,

international [*72] comity concerns are at their

highest and warrant a ruling that the voluntary

submissions did not waive the work product and

other privileges otherwise protective of the

documents. Citing the Restatement (Third) of

Foreign Relations Law of the United States

(Revised) § 442(1)(c), defendants say the factors

commonly considered in a comity analysis are

met here. First, the submissions are ″entirely

external to the United States″ and have ″little if

anything to do with the United States″; second,

granting access would undermine critical interests

of foreign governments; third, plaintiffs can obtain

the information they seek by other means,

including the pre-existing ″core conspiracy″

documents submitted to foreign governments that

have been produced, reports or findings foreign

governments have released or will release of their

investigations, and the guilty pleas and plea

agreements of the defendants. Defs. Opp. at

29-31.


Defendants assert that plaintiffs’ analysis of Rule

6(e) law is erroneous. Citing Douglas Oil Co. v.

Petrol Stops Northwest, 441 U.S. 211, 222, 60 L.

Ed. 2d 156, 99 S. Ct. 1667 (1979), defendants say

that Rule 6(e) protects their other written [*73]

communications submitted to the U.S. Department

of Justice from disclosure. To that end, defendants

assert that plaintiffs cannot demonstrate a

particularized need for these materials because

plaintiffs cannot show that these communications

are needed to avoid a possible injustice, that

plaintiffs’ need is greater than the need for

continued secrecy, and that plaintiffs’ request is

structured to cover only the material so needed. 44

[*74] Specifically, defendants contend that

″plaintiffs need not seek production of grand jury

materials to obtain the information they seek″

because ″the documents and information, to the

extent they exist, have already been sought through

other of Plaintiffs’ Merits’ Discovery Requests *

* * and have already been produced by the

Foreign Defendants,″ citing and quoting Document

Request No. 7. 45 Defs. Opp. at 42-43.

Accordingly, defendants state, no injustice could

arise from denying plaintiffs’ request. Defendants

further contend that plaintiffs have made no

showing as to the balance between the need for

the documents and the need for grand jury secrecy.

Citing In re Milk Products Antitrust Litigation,

84 F. Supp. 2d 1016 (D. Minn. 1997), defendants

also contend that Document Request No. 1, drawn

to require production of ″All documents * * *

produced to the United States Department of

Justice (’DOJ’) * * * in connection with the

DOJ’s investigation of pricing and marketing

practices in the vitamin industry,″ is prohibited by

the secrecy provisions of Rule 6(e). Disclosure in

response to such a general request ″reveals at the

very least, the direction of the grand jury’s

investigation and the names of persons involved,″

and thus falls under Rule 6(e)(2). 84 F. Supp. 2d at

1027 (internal quotes omitted).

Finally, defendants reject plaintiffs’ suggestion

[*75] that Rule 6(e) applies only to grand jurors

and government attorneys, and assert (Defs. Opp.

at 44) that ″compelled disclosure of grand jury

information from non-governmental personnel * *

* would unquestionably breach the secrecy of the

44 Defendants address their Rule 6(e) contentions to their ″other written communications″ only and not to their ″written substantive

communications,″ which they have logged but not produced and the disclosure of which is also the subject of plaintiffs’ motion to

compel. At the November 13, 2001, hearing, counsel for the defendants acknowledged that resolution of what happens to the other

written communications ″will turn in part at least on what [the Special Master’s] report is and what Judge Hogan’s final ruling is on what

should happen to the substantive governmental communications.″ Tr. at 89.

45 At the hearing, defendants’ counsel clarified that the other written communications already produced were pre-existing business

documents that were otherwise relevant to one of plaintiffs’ other requests. Other written communications prepared for and submitted

to foreign governmental authorities were neither produced to plaintiffs nor logged. See Tr. at 116, 172-73.

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grand jury,″ citing Board of Educ. of Evanston

Township High School Dist. No. 202 v. Admiral

Heating & Ventilation, Inc., 513 F. Supp. 600, 604

(N.D. Ill. 1981), and In re Monosodium Glutamate

Antitrust Litig., 2000 U.S. Dist. LEXIS 22521,

MDL No. 00-1328 (D. Minn. Sept. 13, 2000).


Citing Childers v. Slater, 1998 U.S. Dist. LEXIS

11882, No. CIV.A.97-853RMU/JMF, 1998 WL

429849 (D.D.C. May 15, 1998), a decision they

say is directly on point, defendants assert that

their lists summarizing in general terms the

documents generated by the internal investigations

of their counsel are sufficient to satisfy Rule

26(b)(5). Defendants say these internal

investigation documents are presumptively

protected from disclosure by the attorney work

product doctrine and the attorney client privilege,

and that even the act of providing the item-by-item

log demanded by the plaintiffs would disclose

privileged information, including the mental

impressions [*76] of defendants’ counsel, for

example, in selecting persons to be interviewed

and the substance of those interviews.

Defendants say that courts have consistently

recognized that the work product doctrine protects

an attorney’s detailed pattern of investigation

from disclosure, absent extraordinary

circumstances, citing Uinta Oil Refining Co. v.

Continental Oil Co., 226 F. Supp. 495, 505-06 (D.

Utah 1964), and In re Sealed Case, 219 U.S. App.

D.C. 195, 676 F.2d 793, 809-10 (D.C. Cir. 1982),

and have refused to require parties to respond to

discovery requests that would require their

attorneys to disclose details relating to internal

investigations, citing Schbley v. Gould, No.

91-1420-FGT, 1994 U.S. Dist. LEXIS 4082, at

*4-6 (D. Kan. Mar. 29, 1994). Consistent with this

case law, defendants say, the Childers court denied

a motion by plaintiffs to compel defendants to

produce, in response to discovery calling for

certain working case file documents, either the

documents or a detailed document-by-document

log rather than the general description of the

documents defendants had provided. When

plaintiffs re-characterized their request as seeking

a ″log specifying [*77] ’with whom agency

counsel had discussions that are recorded in notes

and when such discussions took place,″ the court

maintained its position, declaring that the

discovery request ″seeks information within the

auspices of attorney work product.″ Childers,

1998 U.S. Dist. LEXIS 11882, 1998 WL 429849,

at *3-4. Pointing out that their internal

investigation documents, as described in the lists

provided to plaintiffs, consist of memoranda of

counsel prepared for their own use,

correspondence with clients relating to strategy,

and notes of counsel regarding attorney interviews

of employees, defendants ask the Court to follow

Childers and protect them from having to produce

detailed privilege logs of these documents.

Defendants devote particular attention to notes of

government interviews of their employees,

claiming that they are protected attorney work

product and that plaintiffs have not contested that

assertion. Citing and quoting from Rockwell Int’l

Corp. v. DOJ, 344 U.S. App. D.C. 226, 235 F.3d

598 (2001), where the D.C. Circuit recounted the

scope and purposes of the protections afforded by

the work product doctrine, defendants assert that

Rule 26(b)(3) creates protections [*78] from

disclosure of two types of work product - ″fact″

work product and ″opinion″ work product. Citing

that Rule, In re Sealed Case, 219 U.S. App. D.C.

195, 676 F.2d 793, 809 (D.C. Cir. 1982); and

Alexander v. FBI, 198 F.R.D. 306, 313 (D.D.C.

2000), defendants state that fact work product is

protected unless the party seeking the discovery

demonstrates (1) a substantial need for the factual

information contained in the documents; and (2)

an inability to collect that same information or its

substantial equivalent without undue hardship.

Opinion work product - materials reflecting the

attorney’s opinions, judgments or thought

processes - according to defendants, ″is virtually

undiscoverable,″ citing Director, Office of Thrift

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Supervision v. Vinson & Elkins, LLP, 326 U.S.

App. D.C. 332, 124 F.3d 1304, 1307 (D.C. Cir.

1997).

Referencing letters and affidavits of their counsel,

defendants represent that counsels’ notes of

government interviews of their employees and

former employees ″necessarily reflect counsels’

mental impressions, conclusions, opinions and/or

legal theories.″ Defs. Opp. at 49. As such,

defendants assert that these notes and memoranda

are opinion work product protected [*79] from

disclosure, citing United States v. Jacques

Dessange, Inc., 2000 U.S. Dist. LEXIS 3734, No.

S2 99 CR 1182 DLC, 2000 WL 310345, at *3

(S.D.N.Y. Mar. 27, 2000); United States v. Lang,

766 F. Supp. 389, 402-03 (D. Md. 1991). Were the

Court to find that the notes are fact rather than

opinion work product, plaintiffs’ motion to compel

should still be denied, defendants say, because

plaintiffs have failed to make the required showing

of substantial need and inability to collect the

same information or its equivalent without undue

hardship. According to defendants, plaintiffs can

obtain what they need without undue hardship

from the 600,000 pages of business documents,

6,000 pages of core conspiracy documents,

interrogatory responses that defendants have

produced, and the 150 depositions plaintiffs seek

to take. In any event, defendants say, the request

for these notes is premature until plaintiffs have

taken 30(b)(6) depositions of these defendants

and should be denied for that reason alone.

Defendants also argue that it would be overly

burdensome to require them to produce detailed,

document-by-document logs of their internal

investigation documents.

C. Plaintiffs’ Contentions in Reply

[*80] Plaintiffs respond that defendants’

opposition clarifies what is now at issue. First,

defendants’ written substantive communications

to foreign governmental authorities are being

withheld pursuant to the attorney work product

doctrine, a protection plaintiffs contend has been

waived; pursuant to the self-evaluative and

investigative privileges which, plaintiffs say, do

not apply; and because of foreign governmental

policy concerns over disclosure to which, plaintiffs

say, well-established U.S. case law precludes

deference as a matter of international comity.

Second, Rule 6(e), on which defendants rely to

relieve them from logging and producing their

other written submissions, according to plaintiffs,

does not apply. Third, defendants’ arguments

respecting the non-discoverability of their internal

investigation documents, including notes of

government interviews (other than those submitted

to governmental authorities), do not protect them

from the duty to provide document-by-document

privilege logs. 46

[*81] 1. Submissions to Governmental

Authorities


Citing a string of cases, including In re Subpoenas

Duces Tecum, 238 U.S. App. D.C. 221, 738 F.2d

1367, 1372-75 (D.C. Cir. 1984), plaintiffs contend

that defendants do not, and cannot, dispute that

the D.C. Circuit and other jurisdictions recognize

that voluntarily disclosing internal investigation

and other materials to a government agency waives

any privilege or protection that may have shielded

those materials from discovery.

As to defendants’ assertions that privileges and

protections attaching to these documents were not

waived because the submissions were compelled,

plaintiffs respond that defendants have failed to

carry their burden of demonstrating compulsion

by specific factual assertions supported by

competent evidence, citing In re PEPCO

46 Plaintiffs state that their motion seeks logging, rather than production, of investigation documents, including existing notes of

government interviews of employees. At the hearing, plaintiffs’ counsel emphasized, ″we’re not trying to discover * * * these interview

notes yet. We just want to know what’s out there and whether they exist.″ Tr. at 67.

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Employment Litig., 1992 U.S. Dist. LEXIS 15208,

No. 86-0603(RCL), 1992 WL 310781, at *4, 6

(D.D.C. Oct. 2, 1992). Citing In re Sealed Case,

278 U.S. App. D.C. 188, 877 F.2d 976, 980 (D.C.

Cir. 1989), plaintiffs say that in this Circuit

compulsion requires a court order or equally

″extraordinary circumstances,″ and that

defendants’ substantive communications to the

[*82] seven foreign governmental authorities

were made in connection with optional and

voluntary administrative procedures, without force

of court order or threat of sanction, in attempts to

obtain leniency or similar benefits in exchange for

cooperation. Plaintiffs say that defendants’

situation is close to Westinghouse Electric Corp.

v. Republic of the Philippines, 951 F.2d 1414 (3d

Cir. 1991), where the court held that voluntary

disclosure to the Securities and Exchange

Commission and Justice Department of documents

that had originally been sought by subpoena

destroyed any privilege attached to the documents.

Plaintiffs assert that defendants ″apparently

concede that their so-called ’compelled’

submissions″ to the EC, JFTC and Swiss

Commission were actually responses to informal,

non-mandatory requests for information; that those

governmental authorities have voluntary and

compelled means for obtaining information during

investigations; and that defendants made their

submissions before any sanctions or penalties

could accrue, to benefit from cooperating. Pls.

Reply at 9 (footnote omitted). As to the EC’s

statements of objections, plaintiffs say that

defendants’ responses [*83] were provided without

court order or threat of sanctions and, citing the

affidavit of Mr. Usher, contend that any failure to

respond would not have entitled the EC to take as

true the facts alleged. Plaintiffs assert that

defendants’ contentions that their submissions to

the Mexican and Brazilian competition authorities

were compelled are unsupported by citation to

controlling authority or first hand knowledge.

Plaintiffs respond in several ways to defendant’s

contention that governmental assurances of

confidentiality preserved from waiver any

applicable privileges and protections attached to

the written substantive communications they

voluntarily submitted. First, they cite Chubb

Integrated Systems. Ltd. v. National Bank of

Washington, 103 F.R.D. 52, 67 (D.D.C. 1984), for

the proposition that an agreement to preserve

confidentiality does not negate the fact that

voluntary disclosure waives any privileges that

might otherwise have attached to the documents

disclosed. Second, plaintiffs say that the record

does not establish that the governmental authorities

agreed to guarantee confidentiality with respect to

third parties, referring the Court to, among other

materials, [*84] affidavits of Mr. Cassidy as to

the ACCC and Teruji Ono as to the JFTC. 47

Third, plaintiffs say that they are seeking the

submission documents from the defendants

themselves, and that nothing in the foreign

governments’ regulations forbids defendants from

producing the documents.

Finally, plaintiffs assert that the principles of

international comity do not warrant protection of

the written substantive communications from

disclosure. Referring to the concerns expressed by

Mr. Cassidy for the ACCC and Mr. De Bronett for

the EC Cartel Unit, plaintiffs say that those

concerns are identical to those of U.S.

governmental authorities, such as the Securities

and Exchange Commission or the Department of

Justice, [*85] both of which have an interest in

encouraging voluntary cooperation with their

investigations; and that this Court has rejected the

argument that an exception to the waiver rule

should be recognized to promote cooperation with

government investigations, citing In re Subpoenas

Duces Tecum to Fulbright & Jaworski, 99 F.R.D.

582, 585 (D.D.C. 1983), aff’d, 238 U.S. App.

D.C. 221, 738 F.2d 1367 (D.C. Cir. 1984).

47 The record contains an affidavit of Mr. Ono, member of the Board and General Manager of the Legal Department of Takeda, stating

that Takeda was investigated on a voluntary basis, expressed an interest in keeping documents submitted confidential, and was told by

a JFTC official that the agency would do so.

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Plaintiffs say that Mr. Cassidy’s affidavit does not

″paint the full picture,″ and, citing the declaration

of Mr. Walker, fails to reflect that the Australian

courts, like the U.S. courts, have rejected such

policy concerns, finding them to be relevant but

not of great weight. Pls. Reply at 20. As to the

concerns expressed by Mr. De Bronett, plaintiffs,

referencing the declaration of Mr. Usher, say the

EC itself has recognized that its leniency program

should not be used to allow defendants to hide

from claimants in civil court. Plaintiffs say

defendants have adduced no evidence that the

JFTC has expressed either a policy interest or a

sovereign interest in protecting defendants’

submissions from disclosure.

Should the Court conduct a comity analysis under

the Restatement, [*86] plaintiffs say that the

foreign policy interests do not outweigh the U.S.

interests in open discovery and enforcement of its

antitrust laws. Plaintiffs contend that disclosure

would not greatly undermine an important foreign

interest; that the submissions are not external to

the U.S., given the global nature of the alleged

conspiracy; and that plaintiffs cannot obtain the

evidence elsewhere. Accordingly, plaintiffs

contend, a comity analysis favors disclosure.

Plaintiffs contend that neither the investigative or

the self-evaluative privilege is available to

defendants. The former is protective of law

enforcement. The latter, in this Circuit, is limited

to cases involving public health and safety issues;

and, according to plaintiffs, defendants not only

have no case support for its application in this

antitrust context, but have failed to respond to the

case law plaintiffs cited against availability of the

privilege. In any event, plaintiffs say, the

self-evaluative privilege is waived by voluntary

disclosure of the investigative materials, citing In

re Leslie Fay Cos. Sec. Litig., 152 F.R.D. 42, 46

& n.7 (S.D.N.Y. 1993) . Finally, plaintiffs argue

that this case bears [*87] no resemblance to

United States v. Alex, Brown & Sons, supra, relied

upon by defendants.


Plaintiffs respond that Rule 6(e) does not shield

defendants’ other submissions from production,

let alone logging, because plaintiffs’ discovery

requests do not implicate matters occurring before

the grand jury and thus do not intrude upon grand

jury secrecy. Plaintiffs say the weight of authority

holds that production of documents to an

investigative agency is not a matter occurring

before the grand jury and does not compromise

the integrity of the grand jury process. They cite

In re Cement-Concrete Block Chicago Area Grand

Jury Proceedings, 1974 U.S. Dist. LEXIS 7916,

No. 71 GJ 8001, 1974 WL 890 (N.D. Ill. June 25,

1974), a case involving discovery by civil litigants,

as squarely controlling the issue here.

Plaintiffs say that In re Milk Products Antitrust

Litigation is ″out of step with the weight of

authority″ and distinguished by the fact that it, as

well as In re Monosodium Glutamate Antitrust

Litigation, which also is relied upon by defendants,

involved broad requests for documents that were

propounded as a first wave of discovery, [*88]

before it was clear that the information could not

be obtained by other means. Douglas Oil Co.,

cited by defendants, is inapposite, plaintiffs argue,

because it involved a request for discovery of

grand jury transcripts, not documents sought for

their intrinsic value in civil litigation.


Plaintiffs contend that defendants’ assertion that

logging each internal investigation document

would reveal privileged or protected information

and is therefore not required is both contrary to

the substantial body of case law in the D.C.

Circuit and elsewhere and based on inapposite

authority. Defendants’ other asserted justification

for listing generally rather than logging such

documents - that information about internal

investigations is presumptively privileged - is,

plaintiffs say, premature, called into question by

contrary authority, and based on authority that is

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distinguishable. Plaintiffs also say that defendants’

arguments deal solely with whether one category

of such documents - information relating to witness

interviews - is protected work product; and that

neither argument nor facts have been presented to

support application of the attorney-client [*89]

privilege or any other privilege. Finally, plaintiffs

contend that defendants have not argued that

logging internal investigation documents other

than witness interview information would reveal

privileged data, and so such documents must be

logged.

Plaintiffs assert that defendants have ignored the

substantial case law, cited by plaintiffs in their

opening memorandum, that invocation of a

privilege must be accompanied by an adequate

presentation of the underlying facts demonstrating

each element of the privilege. According to

plaintiffs, Childers v. Slater does not square with

the case law in the D.C. Circuit requiring detailed,

document-by-document privilege logs. The

magistrate judge in Childers, plaintiffs say, simply

recited the factual elements of work product

protection and, with no further analysis and

without considering cases discussing the duty to

log, concluded that because the documents that

the plaintiff sought to have included in the

privilege log were, in fact, privileged, they did not

have to be logged. Plaintiffs also say that Childers

is distinguished on the facts because the court

there conflated the issue of logging with

discoverability, whereas here [*90] the Court has

already approved Document Request No. 4 for

internal investigation documents. To the extent

that defendants rely on Durkin v. Shields (In re

Imperial Corp. of America) for the proposition

that sparse categorical descriptions of these

documents are sufficient to satisfy Rule 26(b)(5),

plaintiffs say that decision is also inapposite

because hundreds of thousands, even millions, of

documents were in issue there. Here, plaintiffs

say, logging ″at most, less than a few hundred

documents″ per defendant is in dispute. Pls. Reply

at 36-38.

Finally, plaintiffs contend that instead of

addressing cases relating to their duty to log,

defendants improperly focus on cases considering

whether information is privileged. These cases are

inapposite, plaintiffs argue, because only logging

is at issue now. In any event, plaintiffs say the

bulk of defendants’ cases relate to the

discoverability of the identity of witnesses

interviewed, and whether such facts are shielded

as work product. Plaintiffs say defendants have

ignored ″the large body of contrary authority that

holds that identities of witnesses such as those at

issue here, the dates they were interviewed, and

the fact that their [*91] statements exist is not

privileged information.″ Pls. Reply at 39 & n.53.

Those cases are also inapplicable, according to

plaintiffs, because defendants have told plaintiffs

the identities of many of the relevant witnesses,

thereby waiving any existing protections. Plaintiffs

assert that Massachusetts v. First National

Supermarkets, Inc., 112 F.R.D. 149 (D. Mass.

1986), relied upon by defendants, is

distinguishable. The court there, according to

plaintiffs, addressed only the discoverability of

information sought in an interrogatory, and refused

to require production of information about

witnesses where the documents were privileged

and ″no amount of specification [could] alter that

conclusion.″ Id. at 152. Here, plaintiffs say,

logging of the documents could alter their

discoverability, for example, if they formed the

basis of subsequent disclosures to foreign

government authorities.

RECOMMENDATIONS

Plaintiffs have moved pursuant to Rule 37(a) of

the Federal Rules of Civil Procedure for an order

compelling 12 foreign defendants to produce in

response to Document Requests Nos. 1 and 2

written substantive and other communications

submitted [*92] to United States or foreign

governmental authorities, and to log in accordance

with Rule 26(b)(5) internal investigation

documents responsive to Document Request No.

4 but withheld on privilege grounds. Rule 37(a)

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provides that HN1 where a party fails to produce

documents for inspection in response to a request

submitted under Rule 34, the discovering party

may move for ″an order compelling inspection in

accordance with the request.″ Rule 26(b)(5)

provides that HN2 a party which withholds

information otherwise discoverable by claiming

that it is privileged or subject to protection as trial

preparation material ″shall describe the nature of

the documents, communications, or things not

produced or disclosed in a manner that, without

revealing information itself privileged or protected,

will enable other parties to assess the applicability

of the privilege or protection.″ 48

[*93] While plaintiffs, as HN4 the moving

parties, bear the burden of showing that the

foreign defendants have failed to produce the

requested documents, defendants do not contest

this issue. Rather, defendants contend that the

requested documents are protected from

disclosure, variously, by the attorney work product

doctrine, the attorney-client, self-evaluative and

investigative privileges, public interest immunity,

Rule 6(e)(2) of the Federal Rules of Criminal

Procedure, 49 assurances of confidentiality

expressed by the governmental agencies, and

considerations of international comity. Defendants

have logged some of the documents withheld on

privilege grounds, listed others only by general

category, and refused to log or list those asserted

to be protected from disclosure by Rule 6(e). HN5

Defendants have the burden of establishing that

their claims of privilege or protection are well

founded and have not been waived, see United

States v. Legal Servs. for New York City, 346 U.S.

App. D.C. 83, 249 F.3d 1077, 1081 (D.C. Cir.

2001); In re PEPCO Employment Litig., 1992

U.S. Dist. LEXIS 15208, No. 86-0603(RCL),

1992 WL 310781, at *4, 6 (D.D.C. Oct. 2, 1992),

and that their logs and lists comply with Rule

26(b)(5).

[*94] My conclusions are as follows: The written

substantive and other communications at issue are

not protected from disclosure by either the

self-evaluative privilege or the investigative

privilege. However, plaintiffs do not contest that

the documents making up these submissions are

attorney work product which, absent voluntary

disclosure to third parties or a showing of

substantial need, is protected from discovery.

Here, defendants have voluntarily submitted those

communications to adversary government

authorities, including the United States Department

of Justice, Brazilian Ministry of Justice, Swiss

Competition Commission, New Zealand

Commerce Commission, Japan Fair Trade

Commission, Australian Competition and

Consumer Commission and the European

Commission. By doing so, they have lost any

work product protections or other protections that

would have attached to the documents. Although

a close question on this record, Rhone-Poulenc’s

communications to the Mexican Federal

Competition Commission, however, appear to

48 Rule 26(b)(3) states that HN3 ″a party may obtain discovery of documents * * * prepared in anticipation of litigation * * * only

upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party’s case and that the

party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such

materials * * * , the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney

* * *.″

49 Rule 6(e)(2) provides:

HN6 ″(2) General Rule of Secrecy. A grand juror, an interpreter, a stenographer, an operator of a recording device, a typist

who transcribes recorded testimony, an attorney for the government, or any person to whom disclosure is made under

paragraph (3)(A)(ii) of this subdivision shall not disclose matters occurring before the grand jury, except as otherwise

provided for in these rules. No obligation of secrecy may be imposed on any person except in accordance with this rule.

A knowing violation of Rule 6 may be punished as a contempt of court.″

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have been submitted under compulsion, and

therefore remain protected from disclosure by the

attorney work product doctrine. Rule 6(e) of the

Federal Rules of Criminal Procedure, [*95]

assurances defendants may have received from

foreign governmental authorities that their

documentary submissions would be held in

confidence, and considerations of international

comity are insufficient grounds to deny plaintiffs’

motion to compel disclosure of these submissions.

On the other hand, plaintiffs’ have failed to

establish that the lists defendants have provided

identifying the general categories of their internal

investigation documents and other information

available respecting defendants’ employees

interviewed by governmental authorities and the

existence of notes of such interviews are

insufficient to enable plaintiffs to assess whether

such documents are privileged or protected. Under

the circumstances, and on this record, Rule

26(b)(5) does not require defendants to provide

plaintiffs with a document-by-document log of

such documents.

[*96] A. Written Substantive Communications

to Governmental Authorities

Document Requests Nos.1 and 2 of plaintiffs’

January 23, 2001, merits discovery call upon

defendants to produce their written substantive

communications to the U.S. government or any

foreign governmental authority. Defendants contest

their obligation to produce these documents,

claiming that they ″are protected from disclosure

by, inter alia, the attorney work product doctrine,

the self-evaluative privilege, the investigatory

privilege and the public interest immunity,″ Defs.

Opp. at 17, 50 and that those protections were not

lost by production of the documents to third

parties because the productions were compelled

and, where voluntary, are shielded from waiver by

assurances of confidentiality received from the

governmental authorities and considerations of

international comity.

[*97] Defendants assert that there were no

written substantive communications to any U.S.

governmental authority, and this is not contested

by plaintiffs. Accordingly, the written substantive

communications at issue consist exclusively of

documents certain of these defendants submitted

to seven foreign governmental authorities, the

Brazilian Ministry of Justice, Swiss Competition

Commission, New Zealand Commerce

Commission, Federal Competition Commission

of Mexico, Japan Fair Trade Commission,

European Commission, and Australian

Competition and Consumer Commission.

The self-evaluative and investigative privileges

claimed by defendants can be dealt with

summarily.

The self-evaluative privilege is inapplicable as a

factual and legal matter. Counsel for most of the

defendants explicitly stated that they did not

conduct internal investigations as that term is

generally understood, but, upon being retained,

conducted interviews, reviewed documents and

engaged in other investigative activities to advise

50 I do not understand defendants to be asserting that their written substantive communications to governmental authorities are

protected by the attorney-client privilege, since this privilege is not mentioned by defendants in the statement of their claims quoted

above in the text. For this reason, I do not separately discuss or address either the attorney-client privilege or the circumstances of its

waiver as part of my consideration of plaintiffs’ motion for disclosure of these communications. In any event, my conclusions respecting

the protections afforded defendants by the work product doctrine, particularly those concerning waiver, should apply generally in the

circumstances at bar to those afforded by the attorney-client privilege.

Moreover, although the quote from defendants’ brief noted in the text above refers to ″public interest immunity,″ defendants nowhere

establish or brief the legal support for the application of such a privilege to all submissions to all the foreign governments. In discussing

the submissions to the ACCC, defendants recount that ″the ACCC also stresses that failing to protect the confidentiality of the

submissions in this case could ’prejudice the public interest in Australia * * * .’″ Defs. Opp. at 25. To the extent this is the ″public interest

immunity″ to which defendants make reference, it is addressed by my discussion whether defendants’ voluntary submissions to the

ACCC are protected from disclosure.

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and represent their clients in connection with

pending and expected civil and criminal

proceedings, including the cases now part of

MDL No. 1285. Defendants have presented no

affirmative evidence [*98] that the

communications at issue, generated in response to

requests of foreign governments or for submission

to obtain leniency from those governments, were

prepared to correct past misconduct. In short, this

record does not support defendants’ assertion that

their counsel ″undertook thorough and self-critical

’internal investigations’ to * * * ensure that future

violations did not occur.″ Defs. Opp. at 34.

However, even if the facts were more supportive

of this claim of privilege, the law in this circuit

and others generally is not. As the court stated in

Mergentime Corp. v. Washington Metropolitan

Area Transportation Authority, 1991 U.S. Dist.

LEXIS 11080, No. 89-1055, 1991 WL 167005, at

*4 (D.D.C. Aug. 6, 1991), ″basically, HN7 the

privilege has been upheld [in the D.C. Circuit]

only in cases involving public health and safety.″

See also Federal Trade Comm’n v. TRW Inc., 202

U.S. App. D.C. 207, 628 F.2d 207, 210 (D.C. Cir.

1980) (″the privilege ’at the most remains largely

undefined and has not generally been recognized,’″

quoting Lloyd v. Cessna Aircraft Co., 74 F.R.D.

518, 522 (E.D. Tenn. 1977)). Defendants have not

adduced case law applying the privilege in an

antitrust context. [*99] United States v. Alex,

Brown & Sons, 963 F. Supp. 235 (S.D.N.Y. 1997),

aff’d sub nom. United States v. Bleznak 153 F.3d

16 (2d Cir. 1998), relied upon by defendants, is

inapposite to these facts. 51

HN8 The investigative privilege, as defendants

acknowledge, belongs to the government, not

private parties. See Ass’n for Women in Sci. v.

Califano, 185 U.S. App. D.C. 19, 566 F.2d 339,

343 (D.C. Cir. 1977). Defendants nevertheless

contend that they may ″invoke [*100] the privilege

to preserve the rights of the relevant governmental

authorities to protect that which governmental

entities seek to protect in asserting the

investigatory privilege.″ Defs. Opp. at 37.

However, Blumenthal v. Drudge, 186 F.R.D. 236,

242 (D.D.C. 1999), on which defendants rely,

recounts that Blumenthal conceded that ″neither

he nor his counsel can invoke executive privilege,″

and held that Blumenthal had an obligation to

preserve the presidential communications privilege

long enough for the President to invoke it if he so

desired. The court reasoned that ″the privilege

should not be ignored in this case simply because

the White House Counsel’s Office did not have an

attorney available to send to the deposition on

short notice when Mr. Blumenthal’s lawyer called

the White House from the deposition room.″ Id.

Here, unlike in Blumenthal, the foreign

governments have had months to invoke the

investigative privilege but none has filed the type

of objection necessary for the Court to entertain

such a claim. 52 See United States v. Winner, 641

F.2d 825, 831 (10th Cir. 1981). I therefore must

conclude that this privilege does not protect [*101]

the submissions at issue. My conclusion is

bolstered by Dean Foods Co. v. Eastman Chemical

Co., 2001 U.S. Dist. LEXIS 25447, No. C 00-4379

WHO (N.D. Cal. Aug. 13, 2001), where the

Magistrate Judge rejected a private antitrust

defendant’s assertion of the investigative privilege,

stating: ″There is no case which makes this

privilege available to a private litigant.″ Order at

4.

Defendants’ claim that these submissions are

protected from disclosure to plaintiffs by the work

51 While referencing the reasoning behind the self-critical analysis privilege, the court did not apply that privilege to protect documents

or other materials from discovery. Instead, the issue in Alex Brown was the validity of a non-disclosure provision in a consent decree

between the government and antitrust defendants. The court upheld the provision on the grounds that without it the defendants would

not consent to conducting an investigation that would create evidence the government could use to enforce the antitrust laws.

52 In the section of their brief dealing with the investigative privilege, defendants contend that foreign governmental agencies consider

the submissions at issue confidential. I do not treat any such views on confidentiality as an assertion by those governments that the

defendants’ submissions are protected by the investigative privilege.

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product doctrine requires more extended

discussion, and a brief road map may be helpful.

First, since plaintiffs acknowledge that these

submissions are work product but contend that

defendants waived such protections by submitting

[*102] the documents to foreign governmental

adversaries, I review the applicable law respecting

waiver. 53 Next, I apply that law to ascertain

whether the defendants have waived their asserted

work product protections. Finally, I address

defendants’ claim that, apart from work product

protections, assurances of confidentiality received

from the governmental authorities and

considerations of international comity warrant

protection of these submissions from disclosure.

Putting the assurances of confidentiality and

considerations of international comity [*103] to

one side, the parties appear to agree that HN9

voluntary submissions to adversaries, here foreign

governmental authorities, waive otherwise

applicable work product protections, whereas

submissions under compulsion do not. See In re

Subpoenas Duces Tecum, 238 U.S. App. D.C.

221, 738 F.2d 1367, 1373 (D.C. Cir. 1984) (holding

that documents provided to the SEC waived work

product privilege because they were submitted

voluntarily rather than pursuant to a subpoena,

and explaining that the ″distinction between

voluntary disclosure and disclosure by subpoena

is that the latter, being involuntary, lacks the

self-interest which motivates the former. As such,

there may be less reason to find waiver in

circumstances of involuntary disclosure.″). The

parties differ, however, as to what is voluntary and

what is compelled.

Defendants would treat as ″compelled″ a

company’s voluntary response to a governmental

authority’s request for information in aid of an

antitrust investigation where a failure to comply

with the request will inevitably result in a demand

that may have serious consequences for the

company, including ″adversely affecting its claim

for leniency,″ or ″resulting in the imposition of

fines. [*104] ″ Defs. Opp. at 20. Plaintiffs

contend (Reply at 7) that the type or level of

compulsion necessary to avoid a waiver of the

work product protection ″requires a court order or

equally ’extraordinary circumstances,’″ citing In

re Sealed Case, 278 U.S. App. D.C. 188, 877 F.2d

976, 980 (D.C. Cir. 1989) (″Short of

court-compelled disclosure or other equally

extraordinary circumstances, we will not

distinguish between various degrees of

’voluntariness’ in waivers of the attorney-client

privilege.″) (citation and footnote omitted).

Plaintiffs also contend that waiver can occur even

when disclosure is made pursuant to a subpoena if

a party fails to assert an applicable privilege. See

In re Sealed Case, 219 U.S. App. D.C. 195, 676

F.2d 793, 824 (D.C. Cir. 1982) (noting that it was

necessary as a precondition to participation in the

voluntary disclosure program to provide

documents without first asserting applicable

privileges; thus, such disclosures were not

″compelled″ and waiver was appropriate where

privileges were not invoked); Maryville Academy

v. Loeb Rhoades & Co., 559 F. Supp. 7, 8 (N.D.

Ill. 1982).

Following this Circuit’s law as stated in the two

In re Sealed Cases cited above, [*105] I conclude

that HN10 compulsion avoiding waiver requires

that a disclosure be made in response to a court

order or subpoena or the demand of a

governmental authority backed by sanctions for

noncompliance, and that any available privilege

or protection must be asserted. I find further

support for this conclusion in Westinghouse

Electric Corp. v. Republic of the Philippines, 951

F.2d 1414, 1427 n.14 (3d Cir. 1991), where the

Court stated,

53 Plaintiffs’ acknowledgment is somewhat limited: ″Based on the paucity of information that the Foreign Defendants have provided,

it appears that these communications are work product. Nonetheless, the Foreign Defendants bear the burden to demonstrate that the

communications are work product. Should plaintiffs later obtain information indicating that these communications are not work product,

plaintiffs will address such issue at that time.″ Pls. Reply at 6 n. 11.

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″We consider Westinghouse’s disclosure

to the DOJ to be voluntary even thought it

was prompted by a grand jury subpoena.

Although Westinghouse originally moved

to quash the subpoena, it later withdrew

the motion and produced the documents

pursuant to the confidentiality agreement.

Had Westinghouse continued to object to

the subpoena and produced the documents

only after being ordered to do so, we

would not consider its disclosure of those

documents to be voluntary.″ 54

While it may be in a party’s self-interest to

comply with a governmental request where failure

to do so could affect the party’s claims for lenient

treatment, this Circuit distinguishes actions

motivated by self-interest from those that are

effectively involuntary. [*106] The more lenient

or flexible standard of compulsion urged by

defendants is not supported by the cases they cite.55

[*107] Defendants claim that their submissions to

the Brazilian Ministry of Justice, Swiss

Competition Commission, Mexican Federal

Competition Commission, and Japan Fair Trade

Commission, 56 as well as certain of the

submissions to the European Commission were

compelled. Accordingly, applying the standards

just described to the record before me, I now

consider whether written substantive

communications were submitted to these four

foreign governmental authorities voluntarily or

under compulsion.

Brazilian Ministry of Justice. Roche, BASF and

Merck produced logs identifying written

substantive communications submitted to Brazil.

Merck presented no facts whatsoever to support a

claim that its submission was made under

compulsion. Roche and BASF, on the other hand,

submitted declarations from their respective

counsel to demonstrate that submissions were

responsive to specific charges by the Ministry of

Justice and for that reason are protected from

disclosure. I find both declarations [*108]

insufficient to establish compulsion.

Roche’s counsel’s declaration states only that the

Ministry of Justice initiated an ex officio

preliminary investigation which was converted to

an administrative proceeding, and that counsel

presented a defense on behalf of Roche. The

declaration presents no evidence that the

documents were submitted pursuant to a court

order or similar process or that there were penalties

or sanctions for failure to present a defense.

BASF’s counsel states that ″BASF AG was

required to submit a response to assert any defense

related to the investigation * * * . In an

administrative proceeding, if a company does not

present a defense * * *, the [Ministry] could

assume that the charges it is investigating are true.

Accordingly, we presented a defense.″ Prais Decl.

PP 5-8. Again, no evidence is presented that the

documents were submitted pursuant to a court

order or that a failure to present a defense would

subject BASF to penalties or sanctions. While the

declarant states that in the absence of a response,

the Ministry ″could″ assume the charges under

54 The circumstances at bar are comparable to those in Westinghouse, where the Court held that Westinghouse’s disclosure of work

product to the SEC and to the DOJ waived the work-product doctrine as against all other adversaries. Of significance here is the Court’s

statement: ″When a party discloses protected materials to a government agency investigating allegations against it, it uses those materials

to forestall prosecution (if the charges are unfounded) or to obtain lenient treatment (in the case of well-founded allegations). These

objectives, however rational, are foreign to the objectives underlying the work-product doctrine. Moreover, an exception for disclosures

to government agencies is not necessary to further the doctrine’s purpose * * * .″ Westinghouse, 951 F.2d at 1429.

55 See Defs. Opp. at 18-19. I do not read Boston Auction Co. v. Western Farm Credit Bank, 925 F. Supp. 1478 (D. Haw. 1996), cited

by defendants, as applying a different standard of compulsion. See id. at 1482 (″Whereas the [Farm Credit Administration’s] access

cannot be refused, under pain of the agency’s power to compel access and sanction misconduct, compliance is not voluntary.″).

56 See note 43, supra.

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2002 U.S. Dist. LEXIS 26490, *105





investigation are true, he does not explain what

the consequences of such an assumption would

be. Neither declaration [*109] mentions any

privileges or protections available to the companies

or whether they objected to responding to the

investigation. As the Court reasoned in

Westinghouse, the companies were making the

submissions to advance their own interests by

demonstrating that there was no basis for any

charges or that, if there were, they should be

afforded lenient treatment. See 951 F.2d at 1429.

The facts that in response to Roche’s request the

authority ″decided″ to keep the documents

confidential and that, according to BASF’s

counsel, substantive communications are kept

confidential ″as a general rule under Brazilian

law″ do not preserve the work product protection.

See infra at 77 n.60.

Swiss Competition Commission. BASF made

three submissions to the Swiss Competition

Commission and Rhone-Poulenc one. Each

submitted a declaration of its counsel aimed at

establishing that the submissions were compelled

and made under a promise of confidentiality.

BASF’s declarant states, ″The Swiss Commission

sent a formal request to BASF AG requiring that

it provide information related to its activities in

the vitamins industry in Switzerland. As Swiss

law requires, BASF AG submitted [*110] * * *

written information responsive to that request * *

* .″ Scholz Decl. PP 11-12. Based upon his

knowledge of the Swiss proceedings and review

of his U.S. firm’s files, Rhone-Poulenc’s counsel

states generally that its submission was

compulsory and made pursuant to an official

request for information in the course of a

Commission investigation. Majoras Decl. P 8.

Both declarants state that the submissions were

made with the understanding that they would be

held in confidence. In a letter to BASF’s European

counsel written 20 months after the last of the

submissions were made, officials of the

Commission state that the Commission ″compelled

the companies to respond″ to its official requests

and express their understanding that the

submissions ″would not be subject to mandatory

disclosure to third parties in a civil litigation.″

Letter of Krauskopf and Pirlot to Dr.

Meyer-Lindemann (Oct. 3, 2001), at 1.

Plaintiffs submitted the declaration of an expert

on Swiss law, Dr. Wolfgang Peter, who describes

the procedures the Commission follows in

requesting information when an investigation is

initiated. While he states that ″in the absence of

voluntary cooperation, the Commission can

compel [*111] a party to produce submissions or

documents,″ ″the right to refuse to answer and

submit documents is, however, guaranteed under

certain circumstances,″ including where

cooperation would result in criminal prosecution

or where the documents are privileged. Peter

Decl. P 5. Noting that the Commission officials

used the term ″compelled,″ Dr. Peter states that it

is unclear from their letter whether the term is

being used to mean a formal decision was enforced

through sanctions or seizures or whether the word

simply means that the companies abided

spontaneously by a formal decision or even in

anticipation of such a decision. Id. P 6.

While the record is somewhat fuller and the

question closer than in the case of Brazil, I am not

persuaded that defendants have established that

their submissions were compelled. There is no

explanation by counsel or the officials of the

Swiss Commission of any way in which the

responses were ″compelled,″ and no mention of

sanctions incident to a failure to respond to the

requests. Counsel do not discuss whether

privileges or protections were available to either

BASF or Rhone-Poulenc that could have been

raised by objections and might have avoided the

disclosures. [*112] As with Brazil, the fact that the

defendants made the submissions with the

understanding that they would be held in

confidence by the Commission does not preserve

their status as protected work product. In sum, the

evidence, assessed in light of the full record, is

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2002 U.S. Dist. LEXIS 26490, *108


that the submissions were voluntary and waived

any work protections attached to the documents.

Federal Competition Commission of Mexico.

Rhone-Poulenc made submissions to the Mexican

Federal Competition Commission which,

defendants assert, were ″required″ responses to

official requests for information made with the

understanding that they would be held in

confidence. The assertions are supported by a

declaration of Rhone-Poulenc’s U.S. counsel and

a letter from the Commission’s Director of

Investigations advising the company that the

Commission had initiated an official investigation

of the vitamins market. Citing statutory and

regulatory authority, the Commission’s letter

requested Rhone-Poulenc to file within 10 days

information and documents described in 32

numbered paragraphs and warned that ″if the

obligations contained herein are not fulfilled, this

Commission shall proceed to impose a fine

equivalent to fifteen [*113] hundred times the

minimum outstanding wage in Mexico City.″

Plaintiffs say in their reply memorandum that no

weight should be given the declaration because

Rhone-Poulenc’s counsel had no first hand

knowledge and cited no controlling Mexican

authority or other support for his conclusions.

However, plaintiffs made no response to the

statements in the letter of the Director of

Investigations, which was submitted at the hearing,

and presented no counter-declarations or citations

to Mexican law.

Although the record presents a close question,

particularly because examination of the

Commission’s 32 requests reveals only one, No.

31, 57 where an objection on grounds of privilege

might lie, based upon the Director’s letter I

conclude that Rhone-Poulenc’s submissions were

compelled. They appear to have been made in

response to specific requests of governmental

authority based on citations to Mexican law and

regulations and backed by a threat of a fine if the

″obligations″ were not fulfilled. 58 The record is

silent as to whether the company presented any

objections to the requests, and, while this is of

concern, in the absence of any evidence or even

contentions by plaintiffs on this point, [*114] it is

not sufficient for me to reach a different

conclusion.

European Commission. Ten defendants submitted

written substantive communications to the

European Commission. Five contend that their

submissions were compelled. Takeda, Daiichi,

Merck, Lonza and Degussa assert that their

submissions in response to EC requests for

information were ″in all practicality * * *

compelled″ because a failure to comply with the

request will ″inevitably″ result in another demand

and ″will have serious consequences for that

[*115] company’s cooperation with the European

Commission’s investigation, adversely affecting

its claim for leniency;″ and a failure to comply

with that follow-on demand may result in

imposition of fines. Defs. Opp. at 20. Takeda,

Daiichi, Merck and Lonza also responded to EC

statements of objections which, according to

defendants, are the equivalent of an antitrust

complaint. Defendants say that a failure to respond

would have ″serious consequences″ and mention

waiver of the right to appeal points of fact or law

or to request leniency. Defendants submitted no

evidentiary support for these contentions, and

acknowledge that they are aware of no authority

that their submissions were ″compelled″ as would

be the production of documents in response to a

court order.

57 Request No. 31 reads: ″Indicate the national or international reunions where the Corporation has participated with other competitors

whether in the Chamber of Commerce, Seminars or any other in the years of 1996 and 1998. If applicable, file the corresponding

documentation.″

58 The letter is dated August 9, 1999, and calls for a response ″within a period of 10 calender days.″ According to Rhone-Poulenc’s

privilege log, the submissions at issue were made in December 1999 and January 2000.

Page 47 of 58

2002 U.S. Dist. LEXIS 26490, *112

Plaintiffs respond that defendants apparently

concede that their ″compelled″ submissions to the

EC were actually responses to informal,

non-mandatory requests for information; and that,

while the EC has means for compelling

information, defendants made their submissions

before any sanctions or penalties could accrue to

benefit from cooperating. As to the responses to

the EC’s statements of objections, plaintiffs cite

the affidavit [*116] of a specialist in European

Community competition law, Mr. Usher, for the

proposition say that any failure to respond would

not have entitled the EC to take as true the facts

alleged.

I conclude that defendants have not established

that these submissions of Takeda, Daiichi, Merck,

Lonza and Degussa were made under compulsion.

They were provided without a court order and

there is no proof that a failure to respond would

have subjected them to penalties or sanctions. It is

not enough that, had they not responded, the EC

might then have made further demands which, if

flaunted, would have subjected defendants to

penalties or other adverse consequences.

Defendants do not discuss whether they had or

made objections to the requests or statements of

objection. Finally, defendants submitted no

evidence to support the conclusions they ask the

Court to draw. In sum, I consider the submissions

to the EC of these five defendants, as well as those

of the remaining five that made no contentions

respecting compulsion, to have been voluntary

rather than compelled.

New Zealand Commerce Commission. Only

Rhone-Poulenc made a submission to this

governmental authority, and defendants have

submitted [*117] a declaration of the company’s

counsel stating his understanding that the

submission was voluntary. Accordingly, I so

conclude.

Japan Fair Trade Commission. At issue are

submissions Daiichi made to the JFTC. 59

Defendants submitted an affidavit of an expert in

the Japanese Anti-Monopoly Act stating that the

JFTC is empowered to compel production of

documents, but by custom prefers voluntary

submissions. Daiichi presented no evidence that

its submissions were made under compulsion.

Plaintiffs’ witness, the Director of the Center for

Japanese Legal Studies at Columbia Law School,

states that these submissions were voluntary. I so

conclude.

Australian Competition and Consumer

Commission. Three defendants, Roche, BASF

and Rhone-Poulenc, made submissions to the

ACCC. According to the Chief Executive [*118]

Officer of the ACCC, Mr. Cassidy, counsel for

BASF and Rhone-Poulenc approached the

Commission and offered to cooperate in its

investigation of anti-competitive arrangements

affecting vitamins. Mr. Cassidy said the ACCC

contacted Roche seeking its cooperation and Roche

agreed. There is no proof to the contrary. I

conclude, therefore, that these submissions of

these three defendants to the ACCC were

voluntary.

* * * *

To summarize, Rhone-Poulenc’s submissions to

the Mexican Federal Competition Commission

appear to have been made under compulsion and,

for that reason, remain protected from disclosure

to plaintiffs by the attorney work product doctrine.

Defendants’ other written substantive submissions

were produced voluntarily to their adversaries, the

ministries and competition commissions of Brazil,

Switzerland, New Zealand, Japan, Australia and

the European Commission that were investigating

the market for vitamins. Being voluntary, these

59 As noted, supra note 6, at 7, by letter of counsel dated December 21, 2001, Takeda withdrew its opposition to plaintiffs’ motion to

compel insofar as it relates to the company’s submissions to the JFTC.

Page 48 of 58

2002 U.S. Dist. LEXIS 26490, *115

submissions waived whatever work product

protections attached to the documents. 60

[*119] Defendants advance a two-step argument

for shielding even voluntary submissions from

disclosure. First, they contend that their

submissions to Australia, Japan and the EC were

made pursuant to specific assurances from those

governmental authorities that the documents would

held in confidence. 61 Second, defendants say,

considerations of international comity warrant

shielding the submissions from disclosure because

foreign governments rely on the voluntary

cooperation of target companies and individuals

in the enforcement of their antimonopoly laws,

and cannot obtain such cooperation without

promising to maintain the confidentiality of

materials disclosed to them. I do not find either of

those contentions persuasive.

First, I do not find [*120] that defendants have

established that the governmental authorities, by

statute or regulation, practice or procedure, or

agreement expressly or specifically guaranteed

that their submissions would be kept confidential

from third parties. See, e.g., paragraph 19 of the

EC’s Revised Notice of July 21, 2001, repeating

its Notice of July 18, 1996, stating that if a party,

referred to as an ″undertaking,″ provides

information respecting its participation in an illegal

cartel that ″leads the Commission to take a

decision pursuant to Article 81(1) of the EC

Treaty, the part played in the illegal practice by

the undertaking benefiting from immunity from

the fine will be described in full in the decision.″

Usher Decl. P 7.1. Defendants have also failed to

demonstrate that they were guaranteed by the

ACCC or JFTC that their submissions to these

authorities would remain confidential from third

parties. 62 Accordingly, a company that makes a

voluntary submission to one of these conventions

knows in advance that materials in its submission

may be disclosed to third parties and thus has no

reasonable expectation that the submission will be

treated entirely in confidence.

60 Defendants have not argued that these foreign governmental authorities were not their adversaries but were instead their agents, joint

venturers or in some other relationship that would allow defendants voluntarily to submit to those authorities work product materials

without waiving any protections attached to the documents. To the contrary, defendants have argued expressly that these foreign

governmental authorities were adversaries empowered to penalize or sanction them for refusal to cooperate with their investigations.

Accordingly, defendants’ assertions that their submissions were made pursuant to assurances of confidentiality received from these

governmental authorities are insufficient to preserve any privileges attached to the documents. Indeed, plaintiffs in their opening

memorandum cited several cases recognizing that assurances of confidentiality do not preserve work product protections for materials

voluntarily submitted to third parties in reliance on those assurances. See Pls. Mot. at 28, citing, e.g., Westinghouse Elec. Corp. v.

Republic of the Philippines, 951 F.2d 1414, 1427 (3d Cir. 1991) (attorney-client and work-product protection waived notwithstanding

agreement with Department of Justice preserving defendant’s right to assert privileges); Griffith v. Davis, 161 F.R.D. 687, 699-700 (C.D.

Cal. 1995) (″waiver occurs despite any agreement by the parties that the information disclosed will remain confidential as against the

rest of the world″); In re Columbia/HCA Healthcare Corp., 192 F.R.D. 575, 579 (M.D. Tenn. 2000) (The ″intent to maintain a privilege

is not sufficient. * * * Clients who wish to selectively disclose privileged documents and the entity to whom they wish to disclose the

documents cannot negate a waiver simply by agreeing to do so.″). Defendants did not respond to these contentions of the plaintiffs or

make any effort to distinguish the cases plaintiffs cited. See also Chubb Integrated Sys., Ltd. v. Nat’l Bank of Wash., 103 F.R.D. 52, 67

(D.D.C. 1984) (holding that agreement to preserve the confidentiality of documents disclosed inadvertently to adversary did not negate

the fact that ″confidentiality had been breached voluntarily,″ waiving any privileges otherwise attached to the documents).

61 I do not find in defendants’ opposition any direct statement that they are making this contention as to Brazil, Switzerland or New

Zealand, but if I am in error as to this, the discussion that follows would apply equally to defendants’ submissions to those governments.

62 See letter of Sibylle Krieger, Defs. Opp., Ex. 41, stating that Roche understands that ″the [Australia Competition & Consumer]

Commission will make best efforts to avoid the need ever to show either of the Statements or the Transcript in their entirety to any other

person involved in the Vitamins matter.″ Defendants have submitted no evidence of any confidentiality agreement covering Daiichi’s

submissions to the JFTC. Although the record contains an affidavit of Teruji Ono, member of the Board and General Manager of the

Legal Department of Takeda, who states that ″a JFTC official confirmed for me that the JFTC would keep documents voluntarily

submitted by the Company as confidential,″ the scope and legal basis of that undertaking is not clear. Id., Ex 44.

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[*121] Second, even if I were to give full

credence to assurances of confidentiality, I am not

persuaded by defendants’ arguments that principles

of international comity call upon the Court to

protect their written substantive submissions from

disclosure to plaintiffs. At the outset, I do not

accept plaintiffs’ argument that deference to the

concerns expressed by the foreign governmental

authorities is unwarranted because no formal

requests have been made by the states involved or

because the EC is not a sovereign entity. The

requests and expressions of concern presented by

the ACCC’s Chief Executive Officer and the

Director of the EC’s Cartel Unit are sufficient to

warrant a comity analysis. However, the absence

of any communication from Switzerland

expressing similar concerns and the absence of

any communication whatsoever from

governmental authorities in Brazil, New Zealand

and Japan lead me to conclude that no comity

analysis respecting communications to those

authorities is warranted. 63

[*122] The ACCC and EC say generally that in

carrying out their antitrust enforcement

responsibilities, they rely on voluntary

cooperation, including submissions of information

and documents, by targets of their investigations;

and that, if such submissions were discoverable in

U.S. civil litigations, this cooperation would dry

up. In the words of the Director of the EC’s Cartel

Unit, ″the effectiveness of the EU antitrust

procedures could indeed be seriously undermined.″

Letter from De Bronett to Amory et al. (Oct. 5,

2001), at 1. According to the ACCC’s Chief

Executive Officer, Mr. Cassidy, ″potential

respondents are much less likely to volunteer full

and frank cooperation, if confidential information

and documents provided to the Commission as

part of that cooperation can be readily accessed by

third parties.″ Cassidy Aff. P 22. Mr. Cassidy

explains that, while the ACCC has power to

compel parties to furnish information and

documents where it ″has a reason to believe″ that

they have data relevant to a matter that may

contravene the Trade Practices Act, this power is

an inadequate substitute voluntary provision of

information in cases such as this because, without

voluntary cooperation, [*123] ″a relevant ’reason

to believe’ may have been difficult to form.″ Id.

PP 23-24. If the ACCC had not agreed to accept

these foreign defendants’ submissions on a

confidential basis, Mr. Cassidy says, their

cooperation would have been unlikely. These

circumstances, according to Mr. Cassidy, entitle

the ACCC to claim public interest immunity in

respect to defendants’ submissions, which, if

sustained by the Australian court, could shield the

submissions from disclosure. Id. P 29. He

concludes that making the submissions available

to the plaintiffs ″may prejudice the public interest

in Australia″ by discouraging other overseas

companies from approaching the Commission and

by jeopardizing future resolution of ACCC

investigations by way of settlement negotiations.

Id. P 31. Citing the statements of the ACCC and

EC, defendants say that international comity

concerns are at their highest and warrant a ruling

that the voluntary submissions did not waive the

work product privilege otherwise protective of

their submissions.

Plaintiffs say that principles of international comity

do not warrant protection of defendants’ written

substantive communications from disclosure here.

They answer [*124] the EC’s concerns by referring

to the EC’s own notice advising parties choosing

to cooperate that the Commission itself may

″describe[] in full″ in a published decision ″the

part played in the illegal practice by the

undertaking benefiting from immunity from the

fine.″ Usher Del. P 7.1. As to the ACCC, plaintiffs

also presented a declaration Bret Walker, a New

South Wales Senior Counsel, who acknowledges

that a claim for public interest immunity may be

made with respect to the documents obtained by

63 Were I to conclude otherwise, the discussion herein would lead me to recommend that considerations of comity do not warrant

protection of defendants’ submissions to these governmental authorities from disclosure.

Page 50 of 58

2002 U.S. Dist. LEXIS 26490, *121

the ACCC, which would be determined by

balancing whether harm would be done by

production of the documents and whether the

administration of justice would be impaired if the

documents were withheld. Walker Decl. P 10. Mr.

Walker states that ″the courts have not given the

possible detrimental effect on future investigations

and voluntary cooperations, as expressed by Mr

Cassidy, any significant weight when undertaking

the balancing exercise.″ Id. P 15. Mr. Walker

concludes: ″Although an Australian court would

take into account the policy concerns of the

ACCC, they would not be of themselves

determinative of the issue as the court, following

established authority, would be required to [*125]

balance them against the public interest in

disclosure.″ Id. P 27.

Viewing the full record, the cases cited by the

parties, and after conducting a comity analysis

pursuant to section 442(1)(c) of the Restatement

(Third) of Foreign Relations Law of the United

States (Revised), I conclude that the concerns

expressed by the representatives of the EC and the

ACCC, including the latter’s claim to public

interest immunity, are insufficient to protect the

defendants’ submissions to these authorities from

disclosure standing on their own and when

weighed against the U.S. interests in open

discovery and enforcement of its antitrust laws.

First, U.S. courts have rejected policy concerns

expressed by the Securities and Exchange

Commission and the Department of Justice

identical to those advanced by the EC and ACCC.

For example, In re Subpoenas Duces Tecum to

Fulbright & Jaworski, 99 F.R.D. 582, 585 (D.D.C.

1983), aff’d, 238 U.S. App. D.C. 221, 738 F.2d

1367 (D.C. Cir. 1984), ″clearly rejected″ the

argument ″that an exception to the waiver rule

should be recognized to promote voluntary

cooperation with government investigations.″ See

also Westinghouse, 951 F.2d at 1425-26; [*126]

United States v. Mass. Inst. of Tech., 129 F.3d 681,

685 (1st Cir. 1997).

I give weight to these precedents, but do not

consider them determinative since the policy

concerns here are expressed by foreign, rather

than domestic, governmental authorities and raise

a question whether comity calls for greater

deference than was shown to the U.S. agencies.

On the other hand, the need for deference to the

EC’s and ACCC’s concerns must be considered in

light of other facts. Thus, the EC itself warns

those intent on disclosing information and

documents as a means of securing lenient treatment

that their disclosures may ultimately be published

by the Commission; and the Australian courts

appear not to give determinative weight to such

concerns when balancing the public interest in

encouraging cooperation with law enforcement

authorities with the public interest in full

disclosure.

I need not rest solely on these considerations,

however, because analysis of the pertinent factors

identified in Section 442(1)(c) of the Restatement

also favors disclosure. 64 First, since the EC and

the Australian courts hold out the possibility that

information supplied by companies voluntarily

[*127] cooperating with an antitrust investigation

may be disclosed, I question whether disclosure to

the plaintiffs would significantly undermine

important interests of those two foreign

governmental authorities. However, even assuming

otherwise, the interests of these foreign

governmental authorities are not more important

than the interests of the United States in open

discovery and enforcement of the antitrust laws.

Second, while defendants say the submissions are

64 Section 442(1)(c) identifies the HN11 following five factors to be taken into account: ″the importance to the investigation or

litigation of the documents or other information requested; the degree of specificity of the request; whether the information originated

in the United States; the availability of alternative means of securing the information; and 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.″ Restatement (Third) of Foreign Relations Law, at 348.

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2002 U.S. Dist. LEXIS 26490, *124














entirely external to the United States, I do not so

find. The Court has already recognized that a

global conspiracy is at issue and has held that

plaintiffs are entitled to discovery of facts

respecting purchases of vitamins abroad by

defendants’ foreign subsidiaries and affiliates.

Third, although defendants say that plaintiffs can

obtain the information they seek from other

sources, the record is to the contrary. The Court

has acknowledged plaintiffs’ allegations that their

search for the facts respecting the alleged

conspiracy is hampered because the participants

assiduously avoided keeping records of their

activities or destroyed what records existed and

went to great lengths to hide their activities and

meetings from others. [*128] 6/20/01 Mem. Op.

at 13 & n. 10, 23. Moreover, most persons

identified by defendants as having participated in

the conspiracy or having had contemporaneous

knowledge will plead the Fifth Amendment. Thus,

discovery of these submissions remains important

to the plaintiffs’ investigation. Finally, plaintiffs’

requests specifically identify the documents they

seek - i.e., those described in defendants’ logs and

this weighs in plaintiffs favor. Thus, the comity

analysis favors disclosure.

[*129] In sum, I conclude that plaintiffs are

entitled to production of these defendants’ written

substantive communications submitted to the

governmental authorities of Brazil, Switzerland,

New Zealand, Japan, Australia and the European

Commission.



The parties have stipulated that defendants’ other

written submissions shall include ″all written

communications which do not discuss or refer to

any aspect of the alleged vitamins conspiracy or

conspiracies including * * * routine

correspondence confirming meetings * * *, routine

transmittal letters forwarding documents * * * ,

submissions or studies regarding general market

conditions, submissions regarding the use,

consumption or manufacture of vitamins or

vitamins containing products, or submissions

regarding the finances or financial condition of

any of the Foreign Defendants.″ 65 Document

Request No. 1, which seeks ″All documents * * *

produced * * * in response to a grand jury

subpoena * * * ,″ calls for production of such

documents produced to the U.S. Justice

Department. Document Request No. 2, which

references ″requests for information″ rather than a

grand jury subpoena, [*130] covers such

documents produced to any foreign governmental

authority. Defendants advance a single argument

in support of their refusal to produce these

documents, contending that Document Request

No. 1, framed ″expressly in terms of the package

of documents that the Foreign Defendants

produced to the grand jury,″ is prohibited by the

secrecy provisions of Rule 6(e). Defs. Opp. at

40-41. For this, they rely primarily on In re Milk

Products Antitrust Litigation, 84 F. Supp. 2d 1016

(D. Minn. 1997). Defendants say that plaintiffs

cannot obtain these documents unless they

demonstrate a ″particularized need,″ as required

by Douglas Oil Co. v. Petrol Stops Northwest, 441

U.S. 211, 222 n.12, 60 L. Ed. 2d 156, 99 S. Ct.

1667 (1979), which they have not done. Plaintiffs

reply that their discovery request does not

implicate matters occurring before the grand jury

and thus does not intrude upon grand jury secrecy

in violation of Rule 6(e).

[*131] For the reasons stated above in respect to

defendants’ written substantive communications,

I conclude that defendants’ ″other written

communications″ submitted to U.S. governmental

authorities pursuant to grand jury subpoenas must

be produced to plaintiffs unless, as defendants

argue, this discovery is prohibited by Rule 6(e).

For the same reasons, and since Rule 6(e) does not

shield defendants’ submissions to foreign

governmental authorities, I conclude that

65 The stipulation was approved by the Court’s Order of August 17, 2001 P 5.

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2002 U.S. Dist. LEXIS 26490, *127











defendants must produce to plaintiffs in response

to Document Request No. 2 any other written

communications submitted to foreign

governments. 66

Turning to Rule 6(e), many cases are cited, quoted

and argued by both sides, but no definitive

decisions of the Supreme Court or of courts in this

circuit have been identified. I start, therefore, with

the plain words of the Rule, which state that

HN12 no government person conducting the grand

jury - ″[a] grand juror, an interpreter, a

stenographer, an operator of a recording device, a

typist who transcribes recorded testimony, an

attorney for the government, or any [government]

person to whom disclosure is made under

paragraph (3)(A(ii) of this subdivision″ - shall

″disclose [*132] matters occurring before the

grand jury * * * .″ After including that long list of

persons to which Rule 6(e)’s general secrecy rule

applies, the Rule states: ″No obligation of secrecy

may be imposed on any person except in

accordance with this rule.″ Thus, by listing the

persons to which the secrecy requirement applies,

and specifically prohibiting any application of the

secrecy requirement to any person not listed, the

Rule by its terms imposes no obligations on grand

jury witnesses. Accord, Qualis Care, L.P. v. Hall,

No. 95 Civ. 4955 (AGS), 1995 U.S. Dist. LEXIS

15498, at *2 (S.D. NY. Oct. 20, 1995) (″Rule 6(e)

prohibits disclosure by specified parties of matters

occurring before the grand jury. * * * Copies of

the documents [transferred to the U.S. Attorney

pursuant to grand jury subpoena] were returned to

Price Waterhouse. These documents may therefore

be disclosed by Price Waterhouse as it is not a

prohibited party under 6(e).″).

[*133] I find the cases cited by defendants for the

proposition that disclosure of the documents at

bar would conflict with Rule 6(e) unpersuasive or

addressed to disclosure by government officials

conducting the grand jury or expressly relying on

decisions addressed to discovery from those

government officials. See Corona Constr. Co. v.

Ampress Brick Co., 376 F. Supp. 598, 601-02

(N.D. Ill. 1974) (denying plaintiffs’ motion to

compel Justice Department to produce documents

obtained pursuant to grand jury subpoenas and

documents obtained on a voluntary basis that

were presented to the grand jury as violative of

6(e)); United States v. Stanford, 589 F.2d 285, 291

n.6 (7th Cir. 1978) (rejecting Rule 6(e) challenge

to disclosure of documents, but relying on Corona

for a statement in dicta that a ″general request for

’all documents collected or received in connection

with the investigation of antitrust violations . . .,’

for example, would be in effect a disclosure of the

grand jury proceedings″); Davis v. Romney, 55

F.R.D. 337, 342 (E.D. Pa. 1972) (relying on

decision denying motion to compel government to

produce all materials provided [*134] to grand

jury for statement in dicta that Rule 6(e) bars

discovery request seeking ″’all books, pamphlets,

documents, and papers presented to the Grand

Jury’″) (citation omitted); United States v. Stein,

18 F.R.D. 17, 19 (S.D.NY. 1955) (denying motion

to compel government to produce all materials

presented to grand jury as violative of grand jury

secrecy); In re Grand Jury Proceedings Relative

to Perl, 838 F.2d 304, 306-07 (8th Cir. 1988)

(denying request pursuant to Rule 6(e)(3)(c)(i)’s

express exception to grand jury secrecy for court

order disclosing certain specified documents

subpoenaed by grand jury). The strongest case for

defendants appears to be Board of Education of

66 I reject defendants’ contention that plaintiffs can only seek an order compelling the foreign defendants to log these documents to

the extent they claim any privilege. See Defs. Opp. at 39 n.34. Plaintiffs filed a motion to compel production of these documents and

presented supporting arguments. Defendants presented a range of arguments in opposition. Further, defendants have raised and fully

briefed various privileges and protections that they assert protect their substantive submissions to foreign governments from disclosure

and have objected to production of their other submissions to the Justice Department on the ground that Rule 6(e) prohibits their

disclosure; and plaintiffs have fully responded to these defenses. Under the circumstances, a recommendation that defendants merely log

their other written communications would needlessly delay resolution of this portion of the parties’ present discovery dispute. I consider

this issue ready for decision.

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Evanston Township High School District No. 202

v. Admiral Heating & Ventilation, Inc., 513 F.

Supp. 600, 603-05 (N.D. Ill. 1981)’ where the

court, relying on Stanford and Corona, denied a

motion to compel private defendants to produce

″all documents in defendants’ possession that had

been submitted to the grand jury, [and] the

subpoenas for such documents.″ Significantly, the

court refused to limit those two decisions to cases

where the discovery requests [*135] at issue were

directed to persons conducting the grand jury,

stating: ″Grand jury confidentiality would be

emasculated if a party seeking discovery of its

proceedings could do so by routinely obtaining

that information from potential (or as in this case

actual) defendants.″ However, of importance here,

the court failed to explain how its ruling was

consistent with the Rule 6(e)’s express limitation

of its secrecy requirement to persons conducting

grand juries, not to witnesses.

In re Milk Products Antitrust Litigation, on

which defendants place primary reliance, is also

unpersuasive. As here, the court was addressing a

discovery request to a private party -- rather than

a grand jury official -- for materials submitted to

the grand jury. However, in concluding that the

request was barred by Rule 6(e), the court relied

solely on decisions considering whether discovery

of grand jury materials from the government was

permitted by the express exceptions to grand jury

secrecy stated in Rule 6(e)(3)(c). Those decisions

are not applicable here where the question is

whether Rule 6(e) bars discovery from these

private defendants.

Moreover, several cases cited by plaintiffs are on

point [*136] and support plaintiffs’ contentions

that discovery of the defendants’ other written

communications to the Justice Department is not

prohibited by Rule 6(e). See Golden Quality Ice

Cream Co. v. Deerfield Specialty Papers, Inc., 87

F.R.D. 53, 59 (E.D. Pa. 1980) (E.D. Pa. 1980)

(discovery of ″copies of all those documents in

defendants’ possession that were turned over to

the grand jury″ held not prohibited by 6(e));

Halperin v. Berlandi, 114 F.R.D. 8, 15 (D. Mass.

1986) (a witness ″is free to disclose what

documentary evidence he has been compelled to

provide to the grand jury″). See also Qualis Care,

supra, 1995 U.S. Dist. LEXIS 15498, at *2 (Rule

6(e) does not prohibit private party from disclosing

documents it produced to grand jury, as private

party is not a ″prohibited party under 6(e)″). Also

supportive is In re Cement-Concrete Block

Chicago Area Grand Jury Proceedings, 1974 U.S.

Dist. LEXIS 7916, No. 71 GJ 8001, 1974 WL 890

(N.D. Ill. June 25, 1974), where the court rejected

contentions that disclosure would violate Rule

6(e) and granted an order sought by the State of

Illinois and numerous political subdivisions

directing the Antitrust [*137] Division to produce

certain documents that it obtained during a

criminal antitrust investigation, stating:

″Petitioners do not ask whether the

documents they now seek were presented

to the grand jury; nor do they ask to know

what, if anything, the grand jury decided

on the basis of the documents. Petitioners

seek the documents for their own sake,

rather than to learn what occurred before

the grand jury. Under such circumstances,

the courts have uniformly held that Rule

6(e) does not restrict orders of production.″

1974 U.S. Dist. LEXIS 7916, 1974 WL

890, at *2.

Since I find that Rule 6(e) does not prohibit the

disclosures under review, plaintiffs are excused

from satisfying the requirement of Douglas Oil

for a showing of ″particularized need.″

Accordingly, I recommend that defendants be

ordered to produce the other written

communications they submitted to the United

States, Brazil, Switzerland, New Zealand, Japan,

Australia, and the European Commission.


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Defendants’ internal investigation documents are

producible in response to Court approved

Document Request No. 4 unless privileged or

protected from disclosure. While defendants have

provided [*138] plaintiffs with general descriptions

of these documents in four or five broad

categories, identified employees interviewed by

governmental authorities, and indicated whether

notes of those interviews exist, they have refused

to produce or more specifically log these

documents. Citing Childers v. Slater, 1998 U.S.

Dist. LEXIS 11882, No. CIV.A.97-853RMU/JMF,

1998 WL 429849 (D.D.C. May 15, 1998),

defendants say that their general descriptions

satisfy Rule 26(b)(5); that the documents are

presumptively protected from disclosure by the

attorney work product doctrine and the

attorney-client privilege; and that

document-by-document logs would disclose

privileged and protected information, including

the mental impressions of counsel, and would be

overly burdensome to prepare.

Plaintiffs state that at this juncture they are not

seeking production of all internal investigation

documents, including interview notes, but only an

order requiring each defendant to provide a log

identifying on a document-by-document basis the

specific information called for by Rule 26(b)(5),

so that they may determine whether the documents

are privileged or protected, including whether

documents are to be produced because they [*139]

formed a basis for defendants’ submissions to

foreign governmental authorities.

I approach this final issue with an awareness that

plaintiffs have significant information identifying

defendants’ internal investigation documents.

Eisai, which has complied with Document Request

Nos. 1 and 2, has produced its written substantive

submissions to the European Commission,

including a chronology of conspiratorial events

and statements of six employees whose

information was used to develop the chronology.

Similarly, Takeda, which on December 21, 2001,

advised the Special Master that it was no longer

objecting to disclosure of its submissions to the

JFTC, produced to plaintiffs memoranda of

interviews by government authorities of six

employees. In addition, defendants have already

provided plaintiffs with some information

respecting notes of government interviews of

employees, including: (1) the names of the

employees; (2) that the interviews were conducted

by representatives of governmental authorities;

and (3) that the notes were made by defendants’

counsel. 67 Plaintiffs are, or will soon be, in

possession of knowledge whether those employees

intend to invoke the Fifth Amendment and refuse

[*140] to answer plaintiffs’ substantive questions

on deposition. Finally, plaintiffs know from

defendants’ lists that the internal investigation

documents fall generally into the following

categories, taking Roche’s list as representative:

(a) Defense counsel’s notes of their

interviews of employees;

(b) Memoranda and other materials

prepared by defense counsel setting forth

their understanding of the ″core

conspiracy″ facts;

(c) Defense counsel’s notes or meetings

with other defense counsel and

communications among defense counsel;

and

(d) Defense counsel’s notes of meetings

with counsel for non-defendant employees

and former employees.

Other defendants identify as another category

memoranda of counsel to their client companies

regarding legal advice and factual analysis.

The record [*141] reflects that the documents at

issue were prepared by defendants’ counsel or at

67 Moreover, if my recommendations set forth above stand, plaintiffs will obtain any internal investigation documents, including notes

of interviews of employees, submitted to any governmental authority.

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their direction in representation of their clients in

connection with ongoing and expected court

proceedings as part of their efforts to develop the

facts as to what transpired; and that none of the

documents has been disclosed to governmental

authorities or any other third parties. Plaintiffs

have not produced any contrary evidence.

Plaintiffs say that defendants’ general categories

in the lists provided are so broad as to be

meaningless and that defendants’ failure to

produce document-by-document logs is the more

egregious because defendants will be unable to

sustain any claim of privilege or protection against

plaintiffs’ assertions of waiver stemming from the

defendants’ use of these documents as the basis

for submissions to adversary governmental

authorities. Plaintiffs say that Rule 26(b)(5) and

the common law require document-by-document

logs and that defendants’ position is contrary to

the substantial body of case law in this circuit. See

Pls. Reply at 33-35. 68 Moreover, Childers v.

Slater, according to plaintiffs, ″does not square

with the overwhelming case law in this

jurisdiction.″ [*142] Id. at 36. Plaintiffs also

assert that they will be able to show substantial

need for the documents sufficient to overcome

any claim of privilege or protection, and that,

given the small numbers of internal investigation

documents, it will be no significant burden for

defendants to prepare document-by-document

logs.

[*143] I start from the premise that the internal

investigation documents in question appear to be

attorney-client communications and materials

prepared in anticipation of litigation, and that, if

so, the attorney-client privilege protects the former

and Rule 26(b)(3) protects the latter unless

plaintiffs can show ″substantial need″ and that

they cannot obtain the substantial equivalent by

other means ″without undue hardship.″ Rule

26(b)(3) HN14 cautions the court to protect against

″disclosure of the mental impressions, conclusions,

opinions, or legal theories″ of the attorneys. I

consider it significant that counsel generated these

materials after being retained to represent these

defendants in ongoing criminal and expected civil

proceedings, which indicates that, in the words of

Rule 26(b)(3), they were ″prepared in anticipation

of litigation.″

Taking account of the many cases cited by the

parties, I am satisfied that the ″general categories″

with which defendants have described these

documents do not provide the detail generally

required in a privilege log. See Alexander v. FBI,

186 F.R.D. 102, 105-07 (D.D.C. 1998); United

States v. Exxon Corp., 87 F.R.D. 624, 637 (D.D.C.

1980). [*144] This, however, does not lead me to

conclude that defendants must amplify their lists

or provide document-by-document logs. I reach

this conclusion for the following reasons.

First, a detailed document-by-document log would

disclose some ″mental impressions, conclusions,

opinions, or legal theories″ of defendants’ counsel,

and plaintiffs have not suggested how the Court

may require such a log and yet protect against

such disclosures as Rule 26(b)(3) requires.

Second, I am persuaded that listings, along with

defendants’ disclosures of the identity of

employees interviewed by governmental

authorities, including the existence of notes of

such interviews, the identities of employees

68 United States v. Exxon Corp., 87 F.R.D. 624, 637 (D.C. Cir. 1980) (holding that ″this court has recognized the necessity of asserting

the attorney-client privilege in a manner specific enough to allow the court to adjudicate the merits of its invocation″ and ″[a] mere

assertion of the privilege, without a description of the document tailored to the assertion, is insufficient.″); Alexander v. FBI, 186 F.R.D.

102, 106-07 (D.D.C. 1998) (holding that HN13 Rule 26(b)(5) requires a party asserting a privilege to provide a log identifying, ″(a) the

attorney and client involved, (b) the nature of the document, (c) all persons or entities shown on the document to have received or sent

the document, (d) all persons or entities known to have been furnished the document or informed of its substance, and (e) the date the

document was generated, prepared, or dated″); Avery Dennison Corp. v. Four Pillars, 190 F.R.D. 1, 1 (D.D.C. 1999) (holding that

privilege logs are ″the universally accepted means of asserting privileges in discovery in the federal courts″).

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2002 U.S. Dist. LEXIS 26490, *141









http://advance.lexis.com/api/document?collection=cases&id=urn:contentItem:3YMV-GK30-0038-Y00K-00000-00&context=1000516

intending to plead the Fifth Amendment, and the

identities of employees who participated in or had

contemporaneous knowledge of the alleged

conspiracy, along with the disclosure,

recommended by this Report, of defendants’

written substantive submissions to foreign

governmental authorities, give plaintiffs sufficient

information to assess the applicability of privileges

or protections and to make informed

determinations whether they wish to move to

compel production of any notes of governmental

and other interviews [*145] of employees and

whether, if they do, they can show sufficient need

to overcome a claim of work product protection.

Logs of the remaining materials, counsels’

memoranda detailing the results of their

investigations of the facts, communications back

and forth with clients and with other defense

counsel and counsel for non-defendant employees,

would, I conclude, be of little additional value to

plaintiffs as a basis for determining whether to

seek their production, except as they might reveal

directions of defendants’ thinking and strategies

that are protected from disclosure by Rule 26(b)(3).

Third, while I do not accept Childers v. Slater as

applicable in all circumstances, its reasoning

seems persuasive here. 69 Thus, contrary to

plaintiffs’ characterization of the cases cited by

defendants as dealing solely with whether the

documents at issue were subject to production and

not whether they were required to be identified in

a log, Childers does examine whether

presumptively privileged documents must be

logged and denies a plaintiff’s motion to compel a

defendant to produce a log identifying people to

whom defense counsel spoke and when those

discussions occurred. Moreover, [*146] while

plaintiffs are correct that other cases cited by

defendants, see Defs. Opp. at 11-13, deal with

production rather than logging, the discovery

requests at issue in those cases are pertinent to the

issue at bar because they sought types of

information (e.g., names and dates of persons

interviewed during an investigation, whether

particular records were made of those interviews,

and the identity of persons present) comparable to

the information plaintiffs are demanding that

defendants disclose in their privilege logs.

Finally, in contrast to the usual document request

to which a range of documents are responsive, a

small subset of them being possibly privileged

and [*147] therefore protected from disclosure,

plaintiffs’ Document Request No. 4 is drawn to

elicit documents all of which are ordinarily

accepted as being at the core of the protections

afforded by the attorney-client privilege and the

attorney work-product doctrine; and, under these

circumstances, defendants’ listings of the ″general

categories″ of such documents appropriately

balances plaintiffs’ need for information and

defendants’ entitlement under Rule 26(b)(3) to

protection of their counsel’s ″mental impressions,

conclusions, opinions, or legal theories.″

Accordingly, at least at this time and on this

record, I recommend denial of plaintiffs’ motion

to compel defendants to produce

document-by-document logs of their internal

investigation documents, including notes of

interviews of current and former employees.

CONCLUSION

For the reasons stated, I recommend that plaintiffs’

motion to compel be granted in part and denied in

part, and that the Court order each of these foreign

defendants to produce its written substantive and

other communications, as defined in the Court’s

August 17, 2001, Order, to United States and

foreign governmental authorities, with the

exception of Rhone-Poulenc’s [*148] submissions

to the Mexican Federal Competition Commission,

69 I do not BASF my recommendation for denial of plaintiffs’ motion for production of logs meeting the standard set by Rule 26(b)(5)

to any extent on defendants’ contention that preparation of logs would be overly burdensome, which I reject as unfounded in light of

the relatively small number of internal investigation documents at issue.

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2002 U.S. Dist. LEXIS 26490, *144


as to which I recommend the motion be denied. I

recommend that the Court deny plaintiffs’ motion

to compel insofar as it seeks an order for each of

these defendants to provide plaintiffs with a more

specific privilege log providing the information

required by Rule 26(b)(5) of the Federal Rules of

Civil Procedure for each document constituting or

referring to any internal investigation conducted

by the defendant or on its behalf.

January 23, 2002

Stephen J. Pollak

Special Master

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