In Re Rubber Chemicals Antitrust Litigation

ORDER DENYING PLAINTIFF’S MOTION TO COMPEL DISCOVERY

May plaintiff discover communications between a defendant’s affiliate and the European Commission that were made pursuant to the Commission’s Leniency Program? Based on the particular facts of this case, I conclude it may not and DENY plaintiffs motion to compel.

In 2002, attorneys representing defendant Flexsys N.V. met with officials of the European Commission. Flexsys N.V. disclosed the existence of anti-competitive practices in the rubber chemicals industry and solicited immunity from fines for Flex-sys N.V. pursuant to the Commission’s Leniency Program. Decision of the European Commission dated December 21, 2005 attached as Exhibit D to the Forman Supplemental Declaration filed February 12, 2007 (hereafter “Decision”) ¶ 46. Over the next three years the Commission, through its Directorate-General for Competition (“DG-Competition”) carried out an extensive investigation during which there were communications between the Commission and its counsel and Flexsys N.V. and its counsel. At the conclusion of its investigation, the Commission issued its 106-page Decision containing highly detailed findings of fact based on specific…