MEXICO Law and Practice Contributed by: Alejandro Mendiola Diaz, Pedro Isaac Alcalá Berhouague and Benjamín Uriel Salinas Morales, Nader, Hayaux & Goebel
statements or observations made by the two witnesses appointed by the company. While companies do not receive full copies of all extracted materials, the agency may grant access to, or copies of, the digital or physical information that was collected – particularly if it is relevant for the company’s defence during the subsequent administrative proceeding. 2.3 Spoliation of Evidence Destroying, concealing, or altering relevant doc - uments or digital files may be deemed obstruc - tion of the competition authority’s powers. This can result in administrative fines and, if support - ed by other evidence, lead to a presumption that the facts being investigated are true. If such conduct is detected – particularly during a dawn raid – it may also be treated as a criminal offence (eg, obstruction of justice), punishable with imprisonment under applicable criminal laws. 2.4 Role of Counsel Companies and individuals have the right to legal counsel during dawn raids or interviews, but enforcement agents may proceed without waiting for the lawyer’s arrival. Once present, counsel may observe, advise, and request com - ments be included in the official record, but can - not obstruct the process or speak on behalf of interviewees. Counsel’s role includes helping employees navi - gate interviews, ensuring legal safeguards are respected, and assessing potential exposure. In cartel cases, companies often retain exter - nal antitrust lawyers and economists early on, though this is not mandatory.
Receiving a request for information or being raided signals the need to begin preparing a defence, even if the company’s role in the inves - tigation is not yet clear. 2.5 Obtaining Evidence/Testimony The enforcement agencies gather key evidence through the following methods. • Dawn raids, where digital and physical records are copied and reviewed. • Formal information requests sent to compa - nies, individuals, or public entities. • Interviews or appearances of individuals involved in the market under investigation. • Whistle-blower submissions, including anony - mous reports. • Information and evidence from leniency appli - cants, which often provides insider details on cartel operations. • Public and commercial databases, including media, financial filings, and industry reports. • Economic analysis, including market studies and pricing patterns. • Co-operation with other domestic or interna - tional authorities. The Investigative Authority may conduct pro - active intelligence through internal monitoring and sector analysis. All evidence must be col - lected in accordance with due process, and only material directly related to the alleged conduct is admissible. Improperly obtained evidence may be excluded. 2.6 Attorney-Client and Other Privileges Under the Mexican competition framework, attorney-client privilege applies to communica - tions made for the purpose of obtaining legal advice, provided the lawyer involved is legally authorised to practise law, regardless of whether they are external or in-house counsel. COFECE
207 CHAMBERS.COM
Powered by FlippingBook