Transcript

IN THE SUPREME COURT OF THE UNITED STATES

INTEL CORPORATION, Petitioner v. ADVANCED MICRO DEVICES, INC.

No. 02-572

April 20, 2004

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 11:04 a.m.

APPEARANCES: SETH P. WAXMAN, ESQ., Washington, D.C.; on behalf of the Petitioner.

CARTER G. PHILLIPS, ESQ., Washington, D.C.; on behalf of the amicus curiae, supporting the Petitioner.

PATRICK LYNCH, ESQ., Los Angeles, California; on behalf of the Respondent.

JEFFREY P. MINEAR, ESQ., Assistant to the Solicitor General, Department of Justice, Washington, D.C.; on behalf of the United States, as amicus curiae, supporting the Respondent.

PROCEEDINGS

(11:04 a.m.)

CHIEF JUSTICE REHNQUIST: We'll hear argument next in No. 02-572, the Intel Corporation v. Advanced Micro Devices.

Mr. Waxman.

ORAL ARGUMENT OF SETH P. WAXMAN

ON BEHALF OF THE PETITIONER

MR. WAXMAN: Mr. Chief Justice, and may it please the Court:

28 U.S.C., section 1782 authorizes discovery for use in a proceeding in a foreign or international tribunal, upon application by an interested person. Those are words of indeterminate scope. No one in this case contends that they should be applied to the limits of definitional possibility, that words like interested person, for use in, proceeding require a contextual interpretation, and the context in this case is comity in discovery. As -- in language that everyone in this case quotes, the 1964 Senate report characterized the statute as for the purpose of, quote, adjusting U.S. procedures to the requirements of foreign practice and procedure.

And with respect to the question presented in this case, there are three salient, completely undisputed facts.

Number one, EC law denies an antitrust complainant any discovery rights for anything at any stage of the proceeding however long or shot it may go.

Number two, if AMD had filed its complaint with the Antitrust Division of the Justice Department or the FTC, it would likewise have no discovery rights whatsoever.

And third, the EC, which can obtain these documents directly from Intel, has not only declined to do so in this case, but has unequivocally represented to this Court that permitting parties that file complaints with it, thereby to invoke section 1782, will interfere with its governmental functions.

QUESTION: Mr. Waxman, I -- I -- it seems to make a lot of sense, but I need a -- I need a -- a hook to hang it on. I need some language in that text which -- which would enable me to say, oh, it means you only get discovery when there would have been discovery in the foreign proceeding. But I -- I don't -- I don't see any language that gets me anywhere near that.

MR. WAXMAN: Justice --

QUESTION: You can fall back, I suppose, on -- on guided discretion until, you know, we can tell the lower courts never to do it unless its available in foreign -- but I don't see it in the language.

MR. WAXMAN: Justice Scalia, I'm -- I'm confident that our successive briefs in this case provide a number of hooks, but I'm going to give you one or two that I think are particularly applicable with respect to textual interpretation, although obviously we also would urge the Court, because this is a procedural statute, not one that grants substantive rights, that it can and must announce general rules of supervisory power that outline where a -- where discretion ends and abuse begins because another operative word in the statute is may.

But since we're talking with text, let's look, for example, at the word, interested person. The innovation of the statute is it said, okay, you can grant discovery either pursuant to a letter rogatory, et cetera, et cetera, which is the ordinary way in which international discovery is invoked by foreign tribunals or foreign sovereigns, or by an interested person. Now, no one in this case says that interested person should be given its plain meaning, otherwise we would have essentially a universal private freedom of information act. And so --

QUESTION: I understand that. But I am looking or a word in here that -- that similarly requires you to decide whether the foreign court itself would allow discovery.

MR. WAXMAN: Well, we -- we think --

QUESTION: Which is -- which is the -- the major point you were addressing.

MR. WAXMAN: Yes.

QUESTION: I don't see any -- any --

MR. WAXMAN: Everybody will come -- everybody who argues today will give you some definition of what interested person is, and none of them are the limits of definitional possibility. So you've got to give it a construction that is consistent with the history and purpose of the statute.

QUESTION: Why not at least a complainant? I mean, the person who is seeking the discovery here is the complainant, the one who comes to the commission and says investigate.

And I understand your third point. Your first two points puzzle me because there is no counterpart in European schemes to our out-of-court discovery. It doesn't exist. It all takes place under the control of the court and the direction of the court. And on the other hand, the -- the animal that the EC antitrust unit is is nothing like our Antitrust Division where the -- we don't have that blending. You don't have a complainant who has a right before that commission to submit evidence, to be present at their -- if they -- if they do have a hearing. We don't have a complaining party before the Antitrust Division that has a statutory right to be present at a hearing. So you -- the -- the systems are different and you can't compare them on both points.

MR. WAXMAN: To be -- to be sure -- to be sure, Justice Ginsburg. And you will hear -- you know, everybody has their own favorite contextual interpretation of words like interested person or for use in. But the context of this statute is discovery, and the purpose, as made pellucidly clear, is to reduce the significance of international boundaries in discovery. And therefore, what we say, with respect, is you should read interested person to mean an entity that has at least some discovery rights to something at some stage of the process, whether it's pending or imminent or reasonably foreseeable.

QUESTION: Some -- some discovery rights in this country?

MR. WAXMAN: In -- in the foreign country, that is, for the foreign sovereign who's being assisted.

Now -- now, AMD suggests that oh, no, no, no, no. Another purpose of the statute was the imperial export of, quote, liberal American discovery rules. Now, we think that's wrong, but even if it were right, it would be unavailing in this case because it is undisputed that if they had filed a complaint with any of the antitrust regulatory authorities here, they would be entitled to no discovery whatsoever. And therefore, at least you ought to interpret interested person to mean a private entity that has no discovery rights whatsoever either in the foreign proceeding or would have it here.

I mean, the very premise of, quote, liberal American discovery is that it is available when a private party undertakes the obligations of being a litigant. That is, you file a -- you can't get discovery based on some speculation that you have a lawsuit. You get discovery when you undertake the obligations consistent with rule 11 of pleading a case. And what they are trying to do -- there is no case, reported case, decided by any court in the long history of this --

QUESTION: But even so, if you take a typical civil law proceeding a -- between private litigants, you can't go out and get discovery on your own. The court has to authorize it, and the order for discovery will come not from a subpoena that you sent as a private party. It's just -- they don't -- so if we were to interpret it your way, then you would say, well, that no private party in a civil law system that doesn't know from pretrial discovery, doesn't have anything like pretrial discovery, could never get any documents, could never get any testimony.

MR. WAXMAN: Justice Ginsburg, I -- I think -- I mean, I think this Court ought to announce that since the manifest purpose of the statute is to assist, quote, foreign tribunals and litigants before those tribunals, that the indeterminate words of the statute should be read in that context. But even if you wanted to say that discovery would be available at least on a discretionary basis, to someone who has some discovery rights somewhere, if they were to file this type of action in some place, that would also be useful to the lower courts.

And there -- it is simply irrational to say that a statute that was enacted in order to reduce the significance of international boundaries would create this giant loophole that creates ubiquitously universally unavailable discovery, just because somebody has -- happens to bring an administrative complaint in one country and seeks to receive documents that are available in this country when he or she couldn't have received them if he had sued here and where the foreign, quote, tribunal has stated as a categorical matter that resort to section 1782 by complainants before it will affirmatively undermine its sovereign governmental processes.

QUESTION: What happens when AMD goes to the court of first instance, disappointed with what the EU commission or that the EU committee has done, and then it goes to the court of first instance? Can that court of first instance in its discretion order any discovery?

MR. WAXMAN: I believe, Justice Kennedy, that the answer to that question is no. I'm sure that Mr. Phillips, on behalf of the EC, will be able to correct me if I'm wrong. But whether it can --

QUESTION: I'm sure he'll -- I'm sure he'll be glad you asked him to do that.

(Laughter.)

MR. WAXMAN: Well, I'm giving him at least 15 minutes advance -- 10 minutes advance warning.

The point here, I think, in response to your question, Justice Kennedy, as whether it could or couldn't is a feature of a sovereign determination by the countries that make up the European Community. If discovery is available in that proceeding, there's no doubt that's a court proceeding and that's a proceeding before a tribunal. And whatever discovery rights --

QUESTION: But I'm talking, Mr. Waxman --

MR. WAXMAN: -- whatever --

QUESTION: Mr. Waxman --

QUESTION: That's -- that's why I asked and it would seem -- let's assume that the court of first instance could order and in the usual course would order some sort of discovery. Would that change your case here?

MR. WAXMAN: It -- it wouldn't at all. If it could, then, you know, a 1782 request could be made in the unlikely event that the EC or the court couldn't simply do what it can do now, which is order Intel to produce the documents. I mean, that's -- that's the jarringly anomalous result that they're seeking.

QUESTION: Mr. Waxman, I thought it was clear that the court proceeding is a review of the record as it comes to the court from the commission, that is, that the only proof-taking stage is before the commission and that the EC courts, both the tribunal of first instance and the ECJ, review on the record that exists. They don't take any proof.

MR. WAXMAN: I believe that's correct, and our -- they call -- they say that this puts them in a, quote, Catch-22 or a conundrum, but it does nothing of the sort. The question before the court of first instance may be -- and this is assuming a lot of speculative things including, among others, that they are disappointed with what the EC does and that the EC doesn't do what it could do any day, including this afternoon, which is order Intel to produce these documents, but assuming documents aren't produced and the EC decides, as we fervently hope, not to proceed against Intel and -- and they decide that it's worth it to go to the court of first instance and the review will only be on the record that the EC compiled, under European Community law ipso facto the question would be whether or not the EC or DG comp erred in declining the request to obtain these documents.

I mean, you -- we -- we don't have a proceeding -- let's say in a -- just a regular lawsuit in the United States. I'm -- you know, Intel is suing AMD. Intel wants certain discovery. AMD objects. The judge says, I'm not going to grant that discovery. I don't really think that's necessary. We don't have a procedure. You'd be laughed out of court if you came in and said, well, nonetheless, we want it produced so that if we lose before this court proceeding and we go up on appeal, we'll be able to argue not only that the district judge abused his discretion in denying discovery, but we want to be able to show what those documents would say. I mean, nobody has such a procedure.

And to the extent that there's any, quote, conundrum here -- and frankly, I don't see it -- it's a conundrum that is the result of the way that the European Community has chosen to organize its processes.

QUESTION: I think the -- the difficulty is -- is, well, what are the rules. What you say sounds as if it makes a lot of sense, but there are three aspects to the case.

Starting backwards is, can a private party bring this? The answer is yes. You agree it's yes. But you want to say not always. So then you have a rule that you've just enunciated now of who definitely couldn't.

And as to the second, I guess -- I mean, I'm not sure that's the right rule, frankly. Maybe we'd figure that out. Maybe it is.

The second part. I found an opinion by Justice Ginsburg where she has a rule which is in the D.C. Circuit which says about how close it has to be in time, and my guess is that you will say that's okay, but I'd be interested if you don't.

And as to the first part about, well, yes, we agree this is a person who can get discovery, but not here, now, there I don't see any rule at all. So I'd like to know your views on that.

MR. WAXMAN: Well --

QUESTION: I mean, you want to follow their -- all right.

So my two questions are, is Justice Ginsburg's approach to the time problem okay with you?

MR. WAXMAN: No. We think --

QUESTION: No. All right.

MR. WAXMAN: -- that insofar -- well, we think, first of all, as the EC has explained, there is no proceeding before a tribunal and there won't be unless and until one of these two parties ever decides to go to the European --

QUESTION: Well, that -- her quote --

MR. WAXMAN: And --

QUESTION: Let me -- I better quote this. It says you have to have to get this discovery reliable indications of the likelihood that proceedings will be instituted within a reasonable time.

MR. WAXMAN: Right.

QUESTION: Now, you might win under that for the very reason you state.

MR. WAXMAN: I think we certainly would win under it. We think on balance that when the request is made by a private party, not a foreign sovereign or tribunal, that the request should be made by somebody who is a litigant in pending litigation but that at the most, if the court were to say, well, okay, even in the context in which there is a private who's not even a litigant yet, we're going to allow discovery to be obtained where litigation is, as the Second Circuit has said, imminent, that is, reasonably likely to occur and reasonably soon to occur, because otherwise discovery by private parties, prior to the -- the initiation of any proceedings before a tribunal is ubiquitously unavailable unlike the context of, for example, an investigating magistrate or a criminal prosecutor where it almost always is universally available, and the 1996 amendment to the statute reflects that.

QUESTION: Do you have any explanation for elimination of the word pending from the statute?

MR. WAXMAN: No, and particularly since the legislative history -- the language of the legislative history that explains the statute continues to use it, it seems to me that what they -- what they -- it most likely reflects the fact that they wanted to include the French investigating magistrates -- and I won't mangle the language by trying to give the French pronunciation -- where it was arguable whether that was or wasn't a tribunal. They wanted to -- to cover it and therefore pending wouldn't necessarily have been required in that context.

But I don't think -- there is not a shred of evidence that when Congress considered this statute at any point in its legislative development, it ever considered -- and it had no reason in the cases to ever consider -- an outlandish request where a private party that doesn't have any discovery rights at this stage anywhere in any country no matter where it files such a complaint would thereby get them as a windfall by means of this anachronism.

May I reserve the balance of my time?

QUESTION: Very well, Mr. Waxman.

Mr. Phillips, we'll hear from you.

ORAL ARGUMENT OF CARTER G. PHILLIPS

ON BEHALF OF THE AMICUS CURIAE, SUPPORTING THE PETITIONER

MR. PHILLIPS: Thank you, Mr. Chief Justice, and may it please the Court:

Justice Kennedy, the answer to your question is that the court of first instance does not have the authority to order discovery.

But Justice Ginsburg, the answer to your question is that the court of first instance does have the authority to say, in response to an argument made by AMD, that we have not adequately explained why we didn't take that information into account. And we know from the briefs that AMD has a pretty good idea what that information entails and therefore would be in a perfectly adequate position to go first, obviously, to the commission and say this is why we want you to consider this information.

And then second, in the event that we were to issue a refusal to go forward with the proceeding, which we have to explain, frankly, in quite excruciating detail, that's then subject to very much plenary review by the court of first instance and ultimately the Court of Justice.

QUESTION: And the court of first instance can't expand the record.

MR. PHILLIPS: No. The court of first instance does not expand the record. It, like our Federal courts reviewing agency decision-making, has the authority to send the matter back to the agency to review the question a second time.

QUESTION: Where does this proceeding stand now? I mean, this is a discovery request and it's pretty -- it's been pending pretty long. Has the commission made no preliminary determination?

MR. PHILLIPS: The commission has not made a preliminary determination. I think it's important to put it in context. This is a -- an abuse of monopoly power claim based on a large number of contracting arrangements between Intel and a lot of its customers. And the question -- and so there's a serious question of having to review a lot of market data in order to determine whether or not there appears to be a pattern of abuse or a problem that's worthy of going forward with.

So the commission has for some time been taking a very hard look at the nature of the market, has obviously talked to AMD, has talked to Intel. I think that's an important aspect of this case that the Court ought to have in mind, is that -- and -- and it's part of the comity concerns that I think ought to animate the Court's analysis of this problem. The commission has an orderly process and that process may, at some day, require it to ask Intel to provide these particular documents or other documents. We don't know.

But what we don't want frankly is for a private entity to run to a United States court and use essentially the commission as a pawn in an effort to obtain pre-complaint discovery. That's pre-complaint both pre in the United States complaint and pre-complaint in the -- before the European Commission. If at some point in the future we need assistance, we know how to obtain that assistance on our own. We don't require, quote, interested parties to do so.

In our -- in our assessment of the case and --

QUESTION: How does that fit in the rule then? I mean, what kind of -- what kind of a rule of law is it? I mean, what do you -- how do you fit that in?

MR. PHILLIPS: We -- we --

QUESTION: Do you say if the commission doesn't want it, then don't give it to them, but if they do want it, do? How does this fit?

MR. PHILLIPS: Well --

QUESTION: How do you interpret the statute to get the result that you're arguing for?

MR. PHILLIPS: Let me give you a preliminary answer and then I'll tell you -- the -- the real answer as how -- we would interpret it through the word tribunal. That's the statutory hook that the commission feels most comfortable with.

QUESTION: Well, with a tribunal you -- I don't think it is a tribunal probably, but I'll hear more on the other side. But still, there is a tribunal in the offing and that's the tribunal that will be there if the commission decides to enforce this.

MR. PHILLIPS: To be sure, Justice Breyer. But the Ninth Circuit's decision was based on an assessment that the preliminary actions taken by the commission in this particular case are such that render us a tribunal within the meaning of the statute, which was the explicit basis on which the court of appeals ordered this information to be evaluated at least on remand by the district court. And -- and our position is, at least to the extent that this Court is going to adopt an -- an approach akin to that by Judge Friendly in the Second Circuit opinion involving the Indian tax collectors, which looks to see whether or not the adjudicative function is distinct from the investigative functions, our answer would be that we are not that kind of a tribunal. We -- everything we do is investigative. We do not perform --

QUESTION: That would do it, but they have -- I think they have the alternative ground here, that even if you're not a tribunal, the Ninth Circuit says it could lead to a proceeding in the court of first instance. Don't they say that somewhere in their opinion?

MR. PHILLIPS: They make that argument, but that would be an alternative theory.

QUESTION: All right. So as long as they make that argument, then I can't say, okay, I've got the result there that -- that they're arguing for, assuming you're right, that -- that just by using this thing about the tribunal.

MR. PHILLIPS: Well --

QUESTION: All right. Now, so -- so what else could we use to get to your desired end with this statute?

MR. PHILLIPS: Well, the -- the next step, obviously, and it's not one that the commission argues for specifically, but it's one that -- that Intel makes, which is that even if -- if you're going to use the court as the ultimate tribunal, then what is the nexus between this request for information and a proceeding before that court. That's so far off into the future. It certainly implicates the earlier D.C. Circuit opinion by Justice Ginsburg, et cetera.

QUESTION: I assume that the EU committee would be a tribunal under the first sentence if it asked for the documents.

MR. PHILLIPS: No, it would not regard itself as a tribunal under those circumstances. If we wanted these documents, we -- we would seek them either directly from the parties or through some other mechanism. This is not a mechanism that the -- that the commission itself views as available to it to seek documents. We would go through government officials. We would go to the FTC. We would go to the Department of Justice to seek information. We might go to our -- our member countries to seek information, or we would go to parties over whom we have direct jurisdiction to seek information. But 1782 is not a provision that the commission views itself as -- views as available to it, nor does it want to be used as a pawn by -- by private entities seeking to employ its processes as a mechanism to obtain pre-trial -- pre-complaint discovery that's available under no other circumstances.

The -- the over-arching argument that the commission would like the -- the Court to take away from this is -- is a question of if you have to decide on a contextual basis, because the language of the statute is not unambiguous and therefore you have to come up with some limiting principles, the commission urges the Court to recognize that the use of discovery in this -- the use of this statute in this particular way is a direct interference. It risks the release of confidential information. It increases the burden on the commission and the workload that it has, and it allows us to unseemingly -- unseemingly being used -- unseemly being used as a pawn in this kind of -- in this kind of an effort at discovery. And we would ask --

QUESTION: How does it increase the commission's workload?

MR. PHILLIPS: Well, it -- it --

QUESTION: In the sense that you look at it if they give it to you?

MR. PHILLIPS: In that sense and it also provides an incentive.

QUESTION: Why -- why don't you just say we're not going to look at --

MR. PHILLIPS: It -- it provides an incentive for more filings with the commission in order to use this device in order to obtain discovery that you otherwise could not get. And I think there's good reason to suspect that it may be used. Certainly if this Court were to uphold what AMD attempted to accomplish here, I would be quite worried about other plaintiffs in future cases using this particular device.

And remember, there are no rule 11 sanctions that are available for a filing with the European Commission. You don't have to be a lawyer to file a complaint with the European Commission. It requires a relatively minimal amount of effort. It's a letter that identifies a particular problem and asks the commission then to go forward and take a look at it. Therefore, it's a -- it's essentially a costless exercise by plaintiffs using the commission, I submit, in a way that I would hope the Court would find inappropriate and therefore ought to resolve the ambiguities, whether you do it on the basis of tribunal or for use of or proceeding -- and the commission would not presume to tell this Court how to interpret the language of its statute, but whatever choice you make, whichever statutory hook you look for, the commission would ask that this Court interpret the statute narrowly.

QUESTION: What about the one that comes up in the reply brief? And it -- and this is Intel's brief. So I'm wondering if the commission shares the view that 1782 is meant to deal with procuring evidence in the United States from a third party, not from the party before the commission, not from Intel because the commission can tell Intel you give -- give us these documents. But it must refer to people who are not before the court.

MR. PHILLIPS: Yes, well, the commission is certainly supportive of that notion because the commission believes that when and if it needs these -- this information, it will be able to obtain it directly from the party. That is the easiest undertaking in order to obtain information that the commission has available to it. So to the extent the Court wants to draw that line, certainly the commission would be quite comfortable with that line. Again, of course, the commission is uncomfortable telling you how to decide the case -- the statutory -- the specific statutory language.

Let me just -- one last point. The last thing in the world the commission really wants is to have 800 district courts deciding this issue on a case-by-case basis exercising their discretion. It seems to us that that is an intolerable burden to impose on the commission. It cannot monitor all litigation in the United States in order to make its interests and concerns known. And, therefore, it is terribly important that this Court announce a rule, either as a supervisory matter or as a matter of statutory construction, that will limit the ability of the commission to be used, as I say, as a pawn in this discovery effort.

QUESTION: What -- what's our authority to announce a supervisory rule? What's your best case for that?

MR. PHILLIPS: Oh, geez. I don't -- off the top of my head -- I mean, the commission didn't examine it -- that particular issue specifically, Justice Kennedy. I'm -- I'm hoping that my colleague in rebuttal will be able to give --

QUESTION: Interpretation of what comity consists of in this instance.

MR. PHILLIPS: Well, the -- the comity principle are the cases like M'Culloch and the -- and the -- that we cited in the brief, and obviously Charming Betsy. I mean, those are rules of interpretation that we have, but that's not -- that doesn't answer Justice Kennedy's specific question.

QUESTION: Thank you, Mr. Phillips.

Mr. Lynch, we'll hear from you.

ORAL ARGUMENT OF PATRICK LYNCH

ON BEHALF OF THE RESPONDENT

MR. LYNCH: Mr. Chief Justice, and may it please the Court:

I'd like to underline three points.

First of all, the question of the EC's comity concerns. Those concerns deserve respect, but emasculating section 1782 is not the proper way to respect those concerns. Privilege is really the right answer to the EC's concerns and the right answer to counsel's last-expressed concern about 800 district judges reaching different conclusions in different cases.

As to the second question, whether or not this is a proceeding before a tribunal, which seems to be the heart of this case, when Congress enacted or amended section 1782 in 1965, it is absolutely clear that Congress intended to extend the rights granted under section 1782 to proceedings in foreign countries that were quasi-judicial and administrative in nature. And it is also quite clear that Congress did not know and did not consider it necessary to know all the different shapes and forms that administrative law might take in other jurisdictions.

QUESTION: In Israel, for example, if you have a -- a criminal prosecutor, it looks just like our prosecutor. My understanding is that the one difference is that a victim could go to court to force the prosecutor to bring a prosecution. So does that mean now under this statute, because of that one difference, all prosecutors in Israel are open to this -- our tribunals under this statute?

MR. LYNCH: Well, I -- I think that the -- the question of whether a victim is an interested person arises --

QUESTION: No, no. I'm not -- that's not the part I'm getting at. I am saying it's easy to think of people whom, when we look at them, they are precisely like a human being in the U.S. Attorney's office, and everything they do every day is just like a U.S. Attorney, but for one thing, that somebody who wants a prosecution to be brought can get a court to review a decision, no prosecution. Now, I'm asking you if that single difference is sufficient to translate this into a tribunal under the act.

MR. LYNCH: Your Honor, I believe that the answer is that the court to which you can go in Israel and ask them to direct the prosecutor to bring a prosecution has to be a tribunal within the meaning of the statute.

QUESTION: No. Now, you're not getting my questions.

MR. LYNCH: But the prosecutor is not a tribunal.

QUESTION: I don't want to just repeat it again. Did you not understand the question? The question is I'm imaging a person like a U.S. Attorney, exactly the same, and there's only the one difference I mentioned. Somebody can go ask a judge to say did he abuse his discretion in not bringing this RICO case. Okay? That's the only difference. Now, I'm asking you if we had such a person, does that make him a tribunal under the act.

MR. LYNCH: A person -- the prosecutor would not be a tribunal.

QUESTION: Fine. If that's so --

MR. LYNCH: The --

QUESTION: -- and I agree with you -- how does this particular tribunal differ from the one I just described? I don't mean a tribunal. How does the commission differ from that prosecutor I just described?

MR. LYNCH: Because under the European rules of procedure which I can't relate to Israel, but I can relate to the United States --

QUESTION: Forget Israel. I might even be wrong about Israel.

MR. LYNCH: Under the --

QUESTION: You've got my question.

MR. LYNCH: Under the --

QUESTION: And I want to know how they differ from what I just said.

MR. LYNCH: Under the European rules of procedure, Justice Breyer, the -- the European Commission has to consider the facts, has to apply the law to the facts, has to reach a decision which is reviewable by a court. This is not --

QUESTION: And that differs from my case, which was our U.S. Attorney who can be brought to court for not prosecuting on those kinds of grounds. You said it doesn't apply to him, and now you're more or less repeating what I said was the special feature of my imaginary U.S. Attorney.

MR. LYNCH: Well --

QUESTION: So is -- you can elaborate on that or give me another one too.

MR. LYNCH: I believe that the -- the process I described is a classic example of quasi-judicial activity by an administrative body. It would be an adjudication under the Administrative Procedure Act.

QUESTION: The prosecutor has no authority on his own to impose a fine. Right? He can just bring the case to court, and I think what you're saying is that the commission here does have authority on its own to take action against a party. That -- now, that action that it takes will be reviewable, but it can impose a fine or require the -- the selling of some of the assets of the company and so forth. Isn't that right?

MR. LYNCH: Yes. Yes, Your Honor.

QUESTION: That's very important. That's --

QUESTION: That's different. That's different from what a prosecutor can do. He can't -- he can't do anything on his own.

MR. LYNCH: He cannot do anything on his own. He does not have the power to issue fines.

QUESTION: And so what is the difference there between -- and I -- I'm serious about this question. What is the -- what -- all my questions are serious.

(Laughter.)

QUESTION: But this is -- I don't know the answer to this. What is the difference specifically between the EU saying you pay $10 million and the U.S. Attorney saying we want him to pay $10 million? What's the difference there procedurally?

MR. LYNCH: The -- the order of the EC, the order of the commission is a final, enforceable judgment in Europe unless the party, the respondent to that order, takes an appeal to the community courts. And that would be the same as an order of the NLRB or an order of one of our administrative agencies which is enforceable but subject to judicial review. I don't want to --

QUESTION: When they review it, do they give a leg up to the commission?

MR. LYNCH: When -- when the -- the commission --

QUESTION: If it goes to court, is the -- is the issue in the court in the EU an issue like review of the NLRB, that the NLRB wins, unless they're quite wrong, or is it like a court reviewing a decision of the Antitrust Division to bring a tying case where the court will say, we'll make up our mind on our own? You know, they know something about it, so do we. Which is it?

MR. LYNCH: It -- I think it's some of both. If the -- if the --

QUESTION: It has to be either one or the other. They -- they either have to give deference to the agency, as we did, or they're making this decision on their own. And so --

MR. LYNCH: If the agency purports to be deciding on a question of law, like is this tying, they would review the decision of the agency the same way a U.S. court would and say, whether or not this is tying under article 82 or article 81, is ultimately a decision of law and ultimately the community courts have the last word on it. If they were making a decision, was the procedure that was followed here adequate, did the -- did the commission properly weigh the evidence, did it pursue the right evidence, they would give -- they would give deference to the commission's ability to decide how to conduct its process. So there's a great deal --

QUESTION: How about fact-finding?

MR. LYNCH: The fact-finding process is -- I'm -- I'm at a loss to relate it to U.S. process. There's not like a substantial evidence --

QUESTION: No, I'm not talking about process. I'm saying does the reviewing court defer to the commission's finding of fact.

MR. LYNCH: It -- I think it clearly defers, but I can't find that standard of review because the commission has been reversed in the Gregarian case, for example, which is cited in the briefs. The commission has been reversed because the facts before it, according to the reviewing court, established a violation --

QUESTION: My impression, which only comes from the newspapers, is that the courts there are taking a much more active role and it's becoming like they're vis-a-vis the Antitrust Division and it's not like vis-a-vis a commission. But is that -- my --

MR. LYNCH: I would -- I would say --

QUESTION: I'm wrong on that.

MR. LYNCH: -- with -- with all respect, I would say it would be like this Court vis-a-vis the district courts or vis-a-vis administrative agencies as opposed to prosecutors.

And where -- where I started on this point was that in enacting 1782, Congress did not undertake to dictate Europe or to any other country in the world exactly our standards of administrative procedure.

QUESTION: But did it -- did it undertake to dictate to us that we should exceed our standards? I mean, I can understand the -- the argument that you -- you mustn't, in effect, limit the -- the discovery here by the discovery that they could have had over there because who knows what it -- I mean, we're just not experts in that, and it's hard to find out.

We are, however, at least closer to being experts on what American law would provide. Is it plausible to think that Congress was, in -- in extending this great example to the world, extending an example which would provide even more generous discovery than American law would in a domestic antitrust proceeding?

MR. LYNCH: Your Honor, I think that is a false premise here. The difference between what's going on in Europe and what's going on here is that Europe gave AMD one and only one Europe-wide remedy. In the United States, we could have brought a private action in the district court for these very same violations. In Europe, our only Europe-wide remedy was to go to the commission. The European authorities as --

QUESTION: So, in other words, you're simply saying we can't -- we could sue here. We can't sue there. Therefore, you've got to, in effect, give us the right of a litigant here even though we are not there in a litigant's position.

MR. LYNCH: With all respect, I would say we are in a litigant's position. Under our interested party rules --

QUESTION: But not in -- not in the sense of being a party as -- as you would be if you brought a private antitrust complaint. That's all I meant.

MR. LYNCH: In the sense of being a party in that our application has the same standing under European procedural law as a complaint would have here, that when we file that complaint, the commission ipso facto owes us an obligation to make an adjudication. It cannot, just as a matter of discretion, disregard our complaint. It must make a reasoned decision applying law to the facts. It must consider the evidence.

QUESTION: Okay. So you, in effect, I think are telling me, yes, we'll accept the position that we shouldn't be better off than we would be in the United States if you realize that we are in the position of an American plaintiff right now. That's -- that's your answer.

MR. LYNCH: I'm -- I would say it slightly differently, that whether you call us in the position of an American plaintiff right now or whether you say there is no direct analogy, we are a litigant in any practical sense of the word.

The commission in its brief acknowledges that when you get down to that last step, they are acting as a tribunal. They are making a reasoned determination. They're -- they're doing everything that our Due Process Clause --

QUESTION: Do they -- do they --

QUESTION: May I go --

QUESTION: Must they consider -- and I -- I think this is along the lines of what Justice Souter is asking, so I hope I'm not interrupting. Must they consider any evidence you give them?

MR. LYNCH: They must.

QUESTION: Or can they say that it's -- that -- that there's a -- certain relevancy rules that -- that you must adhere to?

MR. LYNCH: Well --

QUESTION: Because what's happening, it seems to me, is that you want to force them to consider things they don't want to consider.

MR. LYNCH: Well, I -- with all respect, I don't know that they've ever said they don't want to consider it. The indication we have is that they don't have the resources as -- as an enforcement agency to go after this material which we think would be highly relevant.

But the answer to your question is, according to the -- to the court of first instance, the European Court of Justice, they must consider the evidence we put before them. Like a district court, they could presumably say this is irrelevant evidence, but they --

QUESTION: But haven't they, in effect, said that? They said, please, we don't -- we don't want this.

MR. LYNCH: They have not said that. They have -- the -- the commission tells us -- and I believe counsel has indicated -- if we present the evidence, they have an obligation to consider it and they have an obligation to deal with that in their decision. And they must make a reasoned decision which is reviewed by the court --

QUESTION: But they don't want it.

QUESTION: Isn't the --

QUESTION: But they don't want it. They've also said they don't want it. They said, if you give it to us, we'll look at it, we have to, but frankly, we'd rather you go away. Isn't that what they've said?

(Laughter.)

MR. LYNCH: No -- no one connected with the commission has said that to us. And the -- the commission's briefs I guess are capable of that interpretation in this Court. But what -- what the staff working with us says is that they don't want to ask for it because of whatever decision they'd make. But they have no have no objection to us asking for it. We told them about this proceeding before we filed it. We kept them informed every step of the way.

To go back --

QUESTION: May -- may I go back to the -- to the one point of your answer that -- that continues to bother me? And it may be that I -- I don't understand something. So that's what I want you to help me on.

I thought their argument was that when you say your present position is just like the -- or is the position of a litigant, the difference between you as a litigant over there and you as a litigant here is -- is a difference in -- in effect, in responsibility. You at least at not supposed to bring an irresponsible complaint in the United States. You can be sanctioned if you do. They, I think, are implying that you don't have that obligation of responsibility over there and therefore simply by filing a complaint, without anything more, you get a free ticket to discovery, whereas your ticket to discovery if you were suing in the United States, is not free because you would have to meet a certain threshold of responsibility before you bring it, and therefore your positions aren't the same.

What is the answer to that?

MR. LYNCH: There is no rule 11 for any proceeding brought in the European Commission. They have no direct rule 11. They have great power over the firms that come before them, and they're perfectly capable of protecting themselves from frivolous activity.

I think the difference between the commission and us is this. When I finish or when the last person to speak finishes, this Court will say the matter stands submitted. The commission is arguing, in effect, that it's not litigation until the commission says the matter stands submitted. And there's this momentary point when they're a tribunal and the door slams shut. Then the court of review says, you didn't come to the commission and offer your evidence.

It's taken us nearly 3 years to -- to get access to this evidence, which we wish to put before the court. We are like any litigant in the United States who wants to say that the body charged with enforcing the labor law, the body charged with enforcing the occupational safety law, has not properly conducted its due diligence. We have a proprietary interest in our own right of coming forward and presenting persuasive evidence to the --

QUESTION: Mr. Lynch, can I ask you this question?

MR. LYNCH: Yes, sir.

QUESTION: It's prompted by Mr. Waxman's argument. Because you filed a complaint, you say you're an interested person. Is that right?

MR. LYNCH: We can't be an interested person just by filing a complaint. There are -- there are the equivalent of --

QUESTION: Why not?

MR. LYNCH: -- of standing requirements --

QUESTION: I was -- I was going to ask you, what if you just filed an affidavit with the district court that you intended to file a complaint?

MR. LYNCH: We would --

QUESTION: Would you then be interested?

MR. LYNCH: We believe that -- that the minimum that would be required is some proceeding underway.

QUESTION: So you would agree that there is some latitude for construing just the scope of what an interested person is.

MR. LYNCH: Well, yes. I think the interested person has to have a -- a place as of right in the proceeding which -- in which the aid is sought, whether that's a district attorney, whether it might be a victim in Israel, whether it's a competitor. But under European law, not just anybody can walk in and file these complaints. You have to be a competitor or a consumer. They're exactly the same standing requirements that we have under our antitrust law. And -- and the commission has issued regulations which are quite clear, that -- that you must have standing to bring such a complaint.

Now --

QUESTION: So you have to -- you would have to look to foreign law to determine whether the person is an interested party.

MR. LYNCH: I think that's a U.S. law question under 1782.

QUESTION: But there has to be a pending proceeding, you're saying, because you obviously can't be a party if there's no proceeding yet.

MR. LYNCH: Well, again, to take some of the cases like Justice Ginsburg's case in the D.C. Circuit, a proceeding could be in reasonable contemplation when an official file has been opened to investigate. I think that's what --

QUESTION: Then -- then you're saying you could have come here even before you filed the -- the complaint with the commission.

MR. LYNCH: I'm saying that until you file the complaint with the commission, there is not sufficient showing of a reasonable probability of a proceeding for anyone to claim -- anyone to claim -- that they are an interested party. I don't believe that the commission, the European Commission, could come in and say --

QUESTION: No, but the contemplation of proceeding has got to be present. Proceeding can be in the future.

MR. LYNCH: And there has to be some official act that --

QUESTION: And that's different from United States law.

MR. LYNCH: That --

QUESTION: In that respect, you are not a litigant in -- in the same sense that you would be required to be a litigant for discovery here.

MR. LYNCH: Those were the words I was trying to get out in answer to your earlier question, that the Ninth Circuit seemed to feel that although the process in Europe is different than it is in the United States and therefore it might not be exactly right to say we're a party in the context of U.S. expectation, we are in a -- we're on a conveyor belt that inevitably turns us into a party if the process continues in its ordinary course. We don't -- there's nothing we have to do to make this into a --

QUESTION: Unless -- unless you get your discovery and say, well, we've learned a lot of interesting things about the other company. We don't care about an antitrust suit now. We've got what's valuable to us. We're not going to initiate a proceeding. That's what they're worried about.

MR. LYNCH: But that could happen in -- in any U.S. lawsuit. I mean, the notion that cases can be settled --

QUESTION: You've got rule 11. You don't have rule 11 when you're merely in -- in the EC and when you're merely in contemplation of litigation.

MR. LYNCH: Well, with all respect, the rule 11 -- the notion that we don't have an obligation to the commission to proceed responsibly implies that without rule 11, litigation in the United States would have no -- that -- that lawyers would be free to do whatever they want to do. The -- the -- it's quite clear under the commission's rules and regulations that there is a responsibility.

QUESTION: Okay. But is that a responsibility that they can enforce against you in any practical sense before you have initiated a proceeding with them? In other words, in the case that they're worried about, you -- you get American discovery to learn interesting things that as a competitor you want to learn and you drop it there. Does the EC have a -- have a means of, in effect, calling you to book for that?

MR. LYNCH: Well, I think the -- I think the answer is there's no rule. I can't point to a rule that says that, but the EC has plenary jurisdiction to regulate AMD and other firms doing business within the -- within the community and they have -- they have the power --

QUESTION: So they can go against them as regulated industries quite apart from their litigant status.

MR. LYNCH: But -- but --

QUESTION: Is -- is that --

MR. LYNCH: Well, I -- I would just say it's like the inherent power of the court to find contempt that -- that I don't think the EC has had this problem.

QUESTION: Yes, but we don't have contempt power if you're not in court, and that's the problem.

MR. LYNCH: But you -- but we are in court. When we file our complaint with the EC, we're as in court as --

QUESTION: We're talking about the situation before you file a complaint, the situation in which you are contemplating the complaint.

MR. LYNCH: I -- I --

QUESTION: There's nothing yet pending.

MR. LYNCH: I'm sorry. I misunderstood your question. In our -- in our view if you have not filed a complaint with the commission, you're not an interested person and there is not a sufficient likelihood of a proceeding for 1782 to apply. There has to be in this context --

QUESTION: So you're adopting a pending proceeding rule then.

MR. LYNCH: We are saying that whether you call that complaint a proceeding, which -- which certainly Intel and the commission say it is not, or whether you call it --

QUESTION: But there's got to be something pending --

MR. LYNCH: -- something leading to a proceeding, that it is a sufficient -- it is sufficiently proximate to a proceeding, and I think that was the way the Ninth Circuit tried to sort of straddle the problem.

QUESTION: Thank you, Mr. Lynch.

MR. LYNCH: Thank you.

QUESTION: Mr. Minear, we'll hear from you.

ORAL ARGUMENT OF JEFFREY P. MINEAR

ON BEHALF OF THE UNITED STATES

AS AMICUS CURIAE, SUPPORTING THE RESPONDENT

QUESTION: Mr. Minear, would -- would you take up where -- where Mr. Lynch left off? Do you take -- would you take the position that an interested party has got to be a party at least who has filed a complaint?

MR. MINEAR: Mr. Chief Justice, and may it please the Court:

Yes, we would agree with the position that an interested party does need to have a pending proceeding.

QUESTION: This interested person and the proceeding is initiated doesn't have to be the judicial proceeding or unless I was wrong in --

MR. MINEAR: If I can go back and -- and try and clarify my answer. There's two questions here really. First of all, is there a proceeding in which -- before a foreign tribunal, and is there an interested person?

In our view, a private person becomes an interested person when there is a proceeding that is going forward. The -- in the case of the tribunal itself, it can, under section 1782, request this information even though no complaint has yet been filed and we think that that is the way that we ensure that there are not actions brought by people who have not taken any action but are simply seeking discovery without any proceeding being present.

QUESTION: And you say tribunal, you're talking about the EC because the court of first instance and the ECJ would not be asking for material.

MR. MINEAR: That -- that's correct.

And I'd like to make three basic points.

QUESTION: Before you do that, explain what you've just -- what you've just said. It seems to me that there is no proceeding before a tribunal here yet.

MR. MINEAR: We disagree with that, Your Honor.

QUESTION: You -- you think that -- that the -- the commission is a tribunal even in the preliminary stages when it's investigating and -- and is -- has -- is not adjudicating?

MR. MINEAR: Yes, we think it -- it is and we can point to several reasons why that is the case.

First of all, a textual reason, that the statute itself, section 1782, makes reference to proceedings before a foreign tribunal, including criminal investigations before formal accusations.

QUESTION: Yes, but that's -- that's -- there are criminal investigations in most countries other than Britain and the United States where the investigating magistrate is a judge.

MR. MINEAR: That's correct.

QUESTION: Of course, they're a tribunal. The key things here is that the people here are investigators who do not think of themselves as judges. They are not judges. And in addition, the proceedings are not adversarial, nor are they adjudicative in any sense. And that is all the difference in the world between -- you're talking -- you think you could bring a -- all we have is an investigation in France by the police judiciaire.

MR. MINEAR: No, Your Honor.

QUESTION: And suddenly we're going to -- we're going to start getting all -- I mean, no. It's a big difference whether it's a magistrate, a -- you know, a judge.

MR. MINEAR: Your Honor, I think part of the confusion here is the procedures that are actually in place by the European Commission. In that regard, I suggest that the Court take heed of the notice concerning the filing of complaints that's cited on page 13 in note 3 of AMD's brief. That's an 80-paragraph document that describes the procedures that the European Commission follows --

QUESTION: Well, I read through some, my clerk read through some, and I ended up by thinking there are some that are rather like the FTC, but then there are a certain number that are really very different. And the thing that struck me as pretty critical is just what I said. They do not think of themselves as judges. They are -- do not think of what they are doing as adjudicatory, and they don't even have a way of walling off, as we do, the investigators from the adjudicators.

Now, there are certain similarities too. But where we have similarities and major differences, maybe we should pay attention to what they want to call themselves.

MR. MINEAR: Perhaps, but I would point out the similarities to an adjudication before I -- I move on to answer that question. First of all, a party that files a complaint does not simply send a letter in. Instead, they must use the complaint form that's described. They must set forth all of the information that they have available, and they must establish that they are an interested party. A legitimate party I think is the term that's used, which is essentially the same as a standing requirement. There's then proceedings in which they participate before the European Commission, ultimately leading to the commission issuing a letter indicating a preliminary decision. They're allowed to respond to that as well. And at that point, the commission then must make a choice.

QUESTION: Proceedings in which they participate before the commission. How do they participate?

MR. MINEAR: Primarily by submitting written documents, by responding in written form. It's my understanding there is no hearing before the commission in that first stage, but ultimately there is a decision that's produced by the commission that is -- must include reasons for their decision, and that is judicially reviewable.

Now, that entire process bespeaks, to a considerable extent, of an adjudicative type proceeding. But even if it's not, it's at least in preparation of what will then be one of two certainly adjudicative proceedings. One is the review by the court of first instance, or in the alternative, if the commission decides to go forward with the complaint, a proceeding in which a statement of objections is then lodged against Intel.

My point in describing all this is just to emphasize that Congress used very broad language here in terms of a proceeding before a foreign tribunal because it realized that there's a vast and uncatalogued variety --

QUESTION: It sort of sloughed over a point I think was pretty critical. I mean, if the commission itself is not proceeding -- not a tribunal, which I -- you dispute, but if I were to disagree with you about that, I would certainly agree with you that the court of first instance and the further reviewing courts are. But there you run into the statement in that D.C. case that I referred to earlier which there must be reliable indications of the likelihood the proceedings will be instituted within a reasonable time. And as to those further court of first instance, the reviewing court and over in the ECJ, then -- then -- do they meet that criterion?

MR. MINEAR: Well, that's a question, it seems to me, that goes to the district court's discretion, determining whether or not to allow the evidence. That's not a statutory criteria that you're citing to, but rather I believe that the D.C. Circ was indicating a matter that informs the discretion. The statute --

QUESTION: And it would be within this statute even if the only indication we had whichever -- there would ever be a case is there's 1 chance in 50 that there will be a case 18 years from now.

MR. MINEAR: Well, it's --

QUESTION: That would fall within this statute and it's just some kind of discretion that keeps it out.

MR. MINEAR: The district court has to make that judgment of whether or not the action --

QUESTION: Even in the example I just gave?

MR. MINEAR: Well, in the example you just gave, there's been a complaint that's been filed and one of two things -- I can say one of three things will happen. Either a complaint will be denied -- ultimately will be denied, in which case there will be an action before the court of first instance, or else there will be the -- the commission will go forward with the complaint, in which case there will certainly be an adjudication against Intel, or AMD would withdraw the complaint for some reason that we don't know about. Those are the only three alternatives. So certainly under the decision of the D.C. circuit, I think that a -- proceedings are in reasonable contemplation, or at a minimum, at least that issue ought to be placed before the district court in the exercise of its discretion.

QUESTION: You want 800 judges to review this even in the extreme case I mentioned, and unless -- as long as you can find some in your favor, you can just go file a complaint over there and get all your competitors' documents and put everybody to about $5 million or $6 million worth of costs, et cetera.

MR. MINEAR: By no means at all, Your Honor. As we indicate in our brief, we believe that rules of -- supervisory rules of practice can be developed by the courts to contain and channel the district court's --

QUESTION: And what's our authority to do that?

MR. MINEAR: The authority is the type of authority that is described in Thomas v. Arn. It's simply that the Court has -- has authority to supervise the activity and provide guidance to district courts in the exercise of their discretion.

QUESTION: Yes, but how -- how are we to know what guidance to provide without a great deal of experience one way or another in -- in the lower courts?

MR. MINEAR: Well, we agree with that as well, and we think that type of guidance at this stage would be premature. We suggested the Court take this case to resolve the circuit conflict on a question of statutory construction.

QUESTION: And so now we go back to the 800 district judges and their discretion even in the kind of rather extreme case that Justice Breyer describes.

MR. MINEAR: Well, Your Honor, the district courts have been at work at this area and there are about 20 cases now over the past 40 years in -- that have construed section 1782, and they -- those cases do provide guidance. We think that the question -- the primary question this Court needs to answer is, is there a rule of foreign discoverability? And we submit that there's no such rule evident on the basis of the statute --

QUESTION: But it's -- it's an odd reading of the statute that we have these discoveries for use in a proceeding in a tribunal and the tribunal said it isn't for our use. It's counterproductive.

MR. MINEAR: Well, Your Honor, I think --

QUESTION: How can that be for use if it's counterproductive?

MR. MINEAR: Your Honor, we need to pay close attention to what the commission said and what it did not say. Our view is if the commission does not want this information, then that's a very good reason for the district court to deny discovery in this case. The court has not said -- the commission has not said it would not use this information, which is quite a different matter. If the commission said that it will simply not use this information, then that is a reason why section 1782 should not apply. The information would simply not be used in the proceeding. But we think that the -- the circumstances here are far less certain.

I should point out that this matter has gone back down. The issue -- a mandate was issued while the petition for certiorari was pending. And the magistrate judge has issued a preliminary order that the district court has not reviewed yet, which has limited the amount of discovery that would be available. And in that course of that decision, the magistrate judge did point out that it was not clear whether this information -- whether the commission had not made clear whether or not the information would be wanted or used by it. That was -- there was uncertainty --

QUESTION: Now, given their brief in this, which seems to me could not be more clear --

MR. MINEAR: The --

QUESTION: -- and your belief that looked what happened, what we have even this court granting some discovery, even though the principle is they shouldn't --

MR. MINEAR: But that issue --

QUESTION: -- then what are we supposed to write that makes real what you --

MR. MINEAR: Your Honor, first of all, I think you -- you need to resolve the issue of statutory construction on the rule of the question of foreign discoverability. And we've explained our views in the brief on that.

QUESTION: Thank you, Mr. Minear.

Mr. Waxman, you have 3 minutes remaining.

REBUTTAL ARGUMENT OF SETH P. WAXMAN

ON BEHALF OF THE PETITIONER

MR. WAXMAN: Thank you, Mr. Chief Justice.

The brief, amicus curiae of the European Commission, states that what it wants is reversal. It wants reversal of the decision that sent this back for a discretionary, 1 of 800 judges' factor-by-factor balancing.

Now, everybody considers -- Justice Souter, with respect to your question about how difficult it might be to determine foreign discoverability, everybody agrees that's a relevant factor. So the question is going to come up in even more instances if you don't announce a rule, either by construing interested person or proceeding or for use in, that somehow channels the discretion of district judges.

Justice Kennedy, pages 36 and 37 and particularly footnote 18 of our blue brief provide, we think, the authority for instances. But it's basically saying the way you do when you decide cases involving discovery under rule 26. There are certain instances in which, since we know what the statute -- there's no doubt about the purpose of the statute, it will always be an abuse of discretion.

Now, with respect to the question of whether this is isn't a tribunal or how soon a tribunal has to occur, AMD acquiesced, and this is a point made in footnote 2 of our reply brief on page 3. They acquiesced -- and this Court granted cert on the second question presented -- on the assumption, as the lower court found, that there is no proceeding before a tribunal now. Otherwise, the question of whether the D.C. Circuit's interpretation of how soon it had to be or the Second Circuit's interpretation would have been presented.

Similarly, this morning is the first time that -- that AMD has argued that it was in -- that it is, in fact, a litigant. It has always argued that you shouldn't read the interested person to require litigant even in the private context because it's only in the title. It's only showered throughout the legislative history, but it's not in the text.

But the question of when something is a tribunal or when it isn't may determine, as this Court's questions this morning suggest, lots of very, very fact-specific determinations that have to be examined perhaps on a case-by-case basis, although we would argue that where the, quote, tribunal itself says we're not, a court ought to accept it.

But if you simply interpret interested person or interpret for use in in the context of a request by a private party before there is any proceeding, that where the request is by an entity that has no rights of discovery at all, not to documents, not to testimony, not at the first stage, not at the second stage, and not in any subsequent judicial proceeding, we can simply cut this off. It will always be abuse of discretion to come to the United States and try and get discovery when you're trying to aid a tribunal that doesn't now and never will allow you to get any discovery.

CHIEF JUSTICE REHNQUIST: Thank -- thank you, Mr. Waxman.

The case is submitted.

(Whereupon, at 12:05 p.m., the case in the above-entitled matter was submitted.)