USA Law and Practice Contributed by: Robert Houck, William Lavery, Joseph Ostoyich and Leigh Oliver, Clifford Chance US
to requests under the US Freedom of Information Act (FOIA), that court also recognised that details within those materials identifying a leniency recipient could be exempt from FOIA disclosure ( Stolt-Nielsen Trans- portation Group v United States , 534 F 3d 728 [DC Cir 2008]). That said, a conditional leniency recipient will likely identify itself to plaintiffs in follow-on civil litigation, in an effort to fulfil its restitution obligation under the Leniency Policy by co-operating with plaintiffs and earning the resulting de-trebling of damages available under the Antitrust Criminal Penalty Enhancement and Reform Act of 2004 (ACPERA). In addition, public companies may face other legal obligations, such as under the securities laws, to dis - close their status as the recipient of leniency. On 4 April 2022, the Division updated its Leniency Pol - icy. This update imposed a number of more stringent obligations on leniency applicants while giving the Department of Justice more discretion as to when to award leniency. These additional obligations include: • “prompt” reporting upon internal discovery of the activity; • best efforts to remediate (in addition to providing restitution); and • best efforts to improve compliance programmes to mitigate future risks. Litigants in US federal court may rely on, and com - pel, testimony from fact witnesses both before and during trial. Prior to trial, the principal tool for com - pelling a witness to testify is a deposition, in which the requesting litigant compels the witness to attend an in-person interview to provide sworn testimony in front of a judicial officer. Parties can also request that opposing parties respond to written questions, called interrogatories. In either case, the court may compel the witness to respond under threat of sanction. Dur - ing trial, judges generally prefer live testimony so that the fact-finder can evaluate the witness’s credibility 7. Witness and Expert Opinions 7.1 Witness Procedure
and so that the opposing party can cross-examine the witness. Deposition testimony may be admitted into evidence to contradict or impeach testimony given during trial, or in some cases if a witness is unavailable to testify in court. 7.2 Expert Witness Role and Procedure The rules governing federal court litigation, includ - ing antitrust claims, permit parties to rely on expert evidence both before and during trial. In the antitrust context, the parties nearly always rely on one or more experts to establish or challenge key issues, including: • whether a purported class of plaintiffs satisfies the requirements for certification; • the appropriate contours of the relevant product market; • a party’s market power (or lack thereof); and • the proper measure of damages. Experts will generally prepare a written report (which must be provided to the opposing party prior to trial) and provide in-person testimony (Fed R Civ P 26[a][2]). An expert’s testimony is admissible as evidence only if the court determines that: • the expert’s specialised knowledge will assist the fact-finder; • the testimony is based on sufficient facts or data; • the testimony is the product of reliable principles and methods; and • the expert has reliably applied these principles and methods to the facts of the case. This assessment requires the court to scrutinise the expert’s particular methods and their degree of acceptance in the relevant field (see Daubert v Mer- rell Dow Pharmaceuticals , 509 US 579 [1993]; Fed R Evid 702). Before or during trial, parties can challenge the admissibility of opposing expert testimony or dis - pute the validity of that testimony. Parties may depose opposing experts, cross-examine them at trial, and seek to introduce evidence that purports to conflict with an expert’s conclusions.
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