No Good Whistle Goes Unpunished: Can We Protect European Antitrust Leniency Applications from Discovery?

Nicolosi, Constanza | January 1, 2011

In recent years, the most successful tool in the antitrust arsenal of the European Commission and the Antitrust Division of the U.S. Department of Justice has proven to be leniency programs, which provide full immunity from fines to the first cartel-member that confesses its participation in the conspiracy. Even though European and U.S. leniency programs are fairly similar to one another, procedural differences may undermine their effectiveness. It has long been argued that potential discovery of corporate statements accompanying the leniency application before the Commission in subsequent proceedings in the United States would put the firms that cooperated with the Commission at a disadvantage with respect to other conspirators in proceedings involving peculiar (and burdensome) U.S. features, such as class-actions, treble damages, and criminal sanctions. European institutions and practitioners are generally concerned about the “uniquely liberal discovery standards that govern in the United States courts.” This Comment suggests two additional ways to protect corporate statements from discovery or, at least, from admissibility at trial: (1) invoking Federal Rule of Evidence 408, which mandates that offers to compromise and statements made in settlement negotiations shall not be admitted at trial to show liability and (2) invoking the work-product doctrine, which protects the confidentiality of documents prepared in anticipation of litigation.