## Facts

- Merchants and merchant trade associations brought a federal antitrust MDL against Visa U.S.A. Inc., Mastercard International Inc., and issuing banks, alleging restraints that enabled supracompetitive interchange fees.
- In discovery, merchant plaintiffs sought production from Visa and MasterCard of specified transcripts and pleadings generated in European Commission competition proceedings involving the card networks.
- Visa and MasterCard resisted production.
- The European Commission appeared as amicus curiae, asserting that compelled disclosure would harm the confidentiality regime used to obtain cooperation in EU competition investigations, including leniency-related cooperation.
- Merchant plaintiffs had extensive domestic discovery tools available in the MDL (e.g., depositions and document requests) to obtain substantially similar information.

## Issues

1. Whether, applying the Aérospatiale comity framework, the court should compel production of European Commission investigative transcripts and pleadings sought for use in U.S. antitrust litigation.
2. Whether the availability of alternative domestic discovery and the European Commission’s asserted confidentiality interests justified denying the motion to compel.

## Decision

- The court denied the merchant plaintiffs’ motion to compel production of the requested European Commission materials.
- The court found the requested materials were not indispensable because substantially similar information could be obtained through ordinary domestic discovery in the MDL.
- The court credited the European Commission’s position that disclosure would seriously interfere with important foreign sovereign interests in maintaining confidentiality to secure cooperation in EU competition enforcement.

## Legal Principles

- Under Société Nationale Industrielle Aérospatiale, U.S. courts balance domestic litigation interests against foreign sovereign interests when deciding whether to compel cross-border discovery.
- In that balancing, a court may deny compelled production of foreign competition-authority materials when the requesting party has realistic alternative means to obtain the substantive information.
- Significant weight may be given to a foreign regulator’s representations that disclosure would undermine confidentiality protections central to its enforcement and cooperation/leniency programs.

## Conclusion

The court refused to compel production of European Commission investigative transcripts and pleadings because the plaintiffs could obtain comparable evidence through domestic discovery, while compelling disclosure risked substantial harm to the European Commission’s confidentiality-based enforcement interests.


In re Payment Card Interchange Fee & Merchant Discount Antitrust Litig., No. 05-MD-1720, 2010 WL 3420517 (E.D.N.Y. Aug. 27, 2010)