Goldberg, Joseph; Gustafson, Dan --- "Obtaining Evidence" [2010] ELECD 750; in Foer, A. Albert; Cuneo, W. Jonathan (eds), "The International Handbook on Private Enforcement of Competition Law" (Edward Elgar Publishing, 2010)

Book Title: The International Handbook on Private Enforcement of Competition Law

Editor(s): Foer, A. Albert; Cuneo, W. Jonathan

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848448773

Section: Chapter 10

Section Title: Obtaining Evidence

Author(s): Goldberg, Joseph; Gustafson, Dan

Number of pages: 29

Extract:

10 Obtaining evidence
Joseph Goldberg and Dan Gustafson1


Introduction
This chapter discusses the pretrial discovery process in civil litigation only ­ either public
or private. Also, it focuses only on litigation in the federal court system and not in the
state court or administrative agency systems. The omission of discussion of state court
civil litigation is explained by two factors. First, most states model their rules govern-
ing civil litigation after the federal rules, and, therefore, the description of discovery
in federal litigation provides substantial insight into the processes in many of the state
civil litigation systems. Second, under the Class Action Fairness Act,2 much of the civil
antitrust cases previously litigated in state courts are now being filed in or removed to
federal court.
Certain attributes of civil antitrust litigation make the pretrial discovery process par-
ticularly important. First, much activity by firms in the marketplace raising antitrust
concerns is covert. For example, cartel behavior is very often hidden by the cartel par-
ticipants and so civil discovery is an important tool for uncovering that activity.3 Second,
antitrust litigation almost invariably calls for the use of expert consultants and expert
testimony. For example, expert economists and statisticians often testify in antitrust
litigation to prove both liability and damages. This extensive use of experts in civil anti-
trust litigation implicates the `expert' provisions of the federal rules governing pretrial
discovery. Third, civil antitrust litigation often involves claims for very large amounts of
damages. The stakes of civil antitrust litigation ...