January 3, 2014

Obtaining US-Discovery for Use in German Private Antitrust Actions

Partner Sebastian Jungermann authored “Obtaining US-Discovery for Use in German Private Antitrust Actions,” published in Germany‘s most prominent antitrust journal, Wirtschaft und Wettbewerb (WuW, 2014, p. 4). Sebastian noted that even though private enforcement is on the rise in Germany and other EU Member States, many questions and hurdles are still unsolved, including the asymmetry of evidence. In Germany, but also in many other jurisdictions, parties often cannot win a case because of the lack of discovery and the lack of evidence. In his article, Sebastian demonstrated a little-known method of collecting evidence from the other party, or even from third parties, via the US District Courts. This may be an interesting strategy for a claimant in antitrust litigation, but also for defendants and other participants in a German action. The article also explained how to use title 28 of the United States Code section 1782(a), which provides that a US District Court "may order" a person residing or found in that court's district to give testimony or produce documents "for use in a proceeding in a foreign or international tribunal, ... upon the application of any interested person." A section 1782 application is a very powerful tool that has been granted by US courts for discovery for use in a wide variety of German proceedings, relating to employment matters, patent infringement disputes, medical fee disputes, shareholder disputes, licensing disputes, paternity suits, proceedings before German tax authorities and in private arbitration.

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