covered by the Copvention, but rather an administrative proceeding outside the Convention’s
scope.” Further, France and Sweden have taken reservations under Article 23 of the Convention
providing that they will not execute letters of request issued for the purpose of obtaining pre-trial
discovery of documents as known in Common Law countries. Sweden took a further reservation,
prechiding requests to identify documents relevant to the proceeding to which the Letter of
Request relates.” Thus, even if an FTC Letter of Request to Sweden under the Hague
Convention were not entirely foreclosed, it would be limited to seeking specific documents
identified i the Request for use at trial and secking testimony of wimesses other than testimony
regarding what documents the witness may have in bis or her possession or custody.

Even with respect to Parties to the Convention as to which the Convention would.
arguably apply in this case, the United Kingdom, France, and Sweden, the Convention does not

provide for the use of subpoenas to obtain information abroad, Rather, the three established

2° “Member States whose laws are based on the civil law system are unlikely to honor a
Tequest for evidence to be used before an American administrative court or agency, or im a civil
action pending before the courts in which “governmental” or “public” - as distmguished from.
“private” - rights are at issue.” See 1 Bruno Ristau, International Judicial Assistance Civil and
Commercial (1990 Revision), §5-1-4, citing, at n. 9, the report of the United States delegate to
tbe Special Commission that met at the Hague in Jume 1978 tw consider, inter alia, the scope of
the Convention, Ip contrast, the report states that the United Kingdom delegate concurred in the
U.S. interpretation of “civil and cormercial” to include proceedings brought by administrative
agencies, and that the French delegate indicated the possibility of flexibility in a matter in which
the request is made on behalf of a private party in an admiistrative proceeding.

» Id, Declarations and Designations by Member States Under the Hague Evidence
Convention, France at'A-88-90; Sweden, at A-107; United Kingdom, at A-108-115.

-13-


world’s leading supplier of the relevant products, has extensive experience bidding against foreign
suppliers for projects in various parts of the world outside the United States and can draw on its
wins and losses against foreign suppliers in various parts of the world to assemble evidence
regarding cost advantages and disadvantages of CB&I and its foreign competitors in various parts
of the world.

Respondents have not shown that they cannot obtain the requested evidence from United
States subsidiaries of the foreign companies or from domestic companies, which according to
respondents’ motion, are partnering with the foreign companies for the purpose of competing m
the United States. Respondents claim that Tokyo Kanetsu K.K. (“IKK”), Bouygues/Technigaz,
Daewoo and BSL have established or announced joit ventures or partnerships with various
United States companies, including American Tank & Vessel (“AT&V”}, H.B. Zachry, S&B
Engineers and Constructors, Ltd., and Bay Tank. Motion at 5-6. These alleged parmers and joit
venture affiliates have offices and employees in the United States and are subject to discovery by
respondents. In addition, the alleged parmerships and joint ventures and ary personnel operating
in the United States are subject to discovery in the United States.

Respondents claim to have information regarding alleged efforts by foreign suppliers to
compete in the United States. See Motion at 2, 5-6. For example, respondents claim that
Skanske/Whessoe is currently bidding on LNG jobs in the United States including Dynegy’s LNG
project in Louisiana; that the TKK/AT&V and Technigaz/Zachry joint ventures are currently
‘bidding on the Dynegy project; that Entrepose has made inquiries about LNG projects in the
‘United States; that the Technip Group of France was awarded a preliminary engineering and

design contract for an LNG import terminal in Freeport, Louisiana; that Ishikawajima-Harima

7-



UNITED STATES OF AMERICA
BEFORE FEDERAL TRADE COMMISSION

In the Matter of

CHICAGO BRIDGE & IRON COMPANY N.V.

a foreign corporation,

CHICAGO BRIDGE & IRON COMPANY

a corporation,

Docket No. 9300
and

PITT DES-MOINES, INC.

a corporation.

OO TOO LOI an aad

ORDER
‘Upon consideration of Respondents’ Motion For Leave To Seek Foreign Evidence dated
April 5, 2002, and Commission Counsel's response thereto, it is HEREBY ORDERED AND
ADJUDGED THAT, based upon Respondent's failure to satisfy the requirements of Rule 3.36 of
the Federal Trade Commission’s Rules of Practice, Respondents’ motion is DENIED,

ORDERED:

James P. Timony
Administrative Law Judge

Date: April__, 2002



Counsel's Motion at 7.) Despite Complaint Counsel's noble intentions, this is not an adequate
ground to re-open discovery and depose Mr. Jolly. If Mr. Jolly seeks protection, he will file a
motion clearly defining all topics he believes require in camera treatment. If the Court grants
Mr. Jolly's motion, Complaint Counsel will have adequate notice of which topics the Court
found worthy of protection and in camera treatment.

VI. IF THIS COURT GRANTS COMPLAINT COUNSEL LEAVE TO RE-OPEN

DISCOVERY AND DEPOSE MR. JOLLY, IT SHOULD LIMIT THE TIME AND
SCOPE OF THE DEPOSITION.

If this Court grants Complaint Counsel's motion, it should limit Mr. Jolly's
deposition to topics occurring after August 22, 2002 and allow each party one hour to conduct its
examination. Complaint Counsel should not be allowed to depose Mr. Jolly on topics occurring
prior to August 22, 2002 because it had ample opportunity to acquire this information during its
numerous interviews with Mr. Jolly. The two hour time limit, in which each party would receive
one hour of examination time, is necessary to keep the parties focused and limit the disruption
the deposition will have on the on-going trial. To further limit disruptions, the Court should
order the deposition to commence at the end of trial proceedings on Tuesday, December 17,

2002.



methods are by letter of request? by consular or diplomatic official,” or by appointed
commissioner.* The first method can be compulsory, while the latter two can only be used with
willing witnesses. Thus, respondents cite no legal authority supporting the issuance of the
Tequested process.

- Respondents’ motion additionally fails to mention other likely legal impediments to the use
of compulsory process to obtain evidence in the jurisdictions in question. Notably, the United
Kingdom’* and France” bave enacted blocking statutes that can limit or prohibit subpoenaed.
parties from producing evidence in connection with a foreign legal proceeding. Impediments to
obtaining personal jurisdiction and to effecting valid service can also render it, at a miminmum,
highly problematic, to obtain evidence in the named jurisdictions consistent with local Jaw and
practice.

In sum, respondents’ motion does not set forth a basis for “a good faith belief” that their

discovery request would be permitted by treaty, law, custom or practice in the countries from.
which the discovery is sought.

2 Convention on the Taking of Evidence Abroad in Civil or Commercial Mantess, Article
1, codified at 28 U.S.C. § 1781.

> Id., Article 15.
** Jd., Article 17.

35 Id, Articles 1, 15, 17.

2© Protection of Trading Interests Act 1980, reprinted in 1 Ristau, supra, n. 10, at Cl-
236.

27 Law Relating to the Communications of Economic, Commercial, Industrial, Financial,
or Technical, Documents or Information to Foreign Natural or Legal Persons, Law No. 80-530,
[1980] Journal Officiel, reprinted in 1 Ristau, supra p. 10, at CI-80.

~14


L hereby certify that I caused a copy of Commission Counsel's Response to Respondents’

CERTIFICATE OF SERVICE

Motion for Foreign Discovery Pursuant to Rule 3.36 to be served this day

by band delivery to:

‘The Honorable James P. Timony
Administrative Law Judge

Federal.Trade Commission

600 Peunsylvania Avenue, N.W., Room 112
Washington, D.C. 20580

and by facsimile and by first-class mail to:

Dated: April 17, 2002

Jeffrey A. Leon, Esquire
Duane M. Kelley
Winston & Strawn

315 W. Wacker Drive
Chicago, IL 60601-9703

Counsel for Respondents
Chicago Bridge & fron Company N.V.

- Chicago Bridge & Iron Company, and~"
Pitt Des-Moimes, Inc.

Ae

Steven L.
Commission éunsel



a foreign country show:
that the party seeking discovery has a good faith belief that the discovery requested
would be permitted by uyeary, law, custom, or practice in the country from which
the discovery is sought and that any additional procedural requirements have been
or will be met before thd subpoena is served.

Respondents have not ached to their motion the particular subpoenas or other
discovery demands or discoveryjrequests they ask the Court to authorize. At several points in
their motion respondents indicate that they propose to issue subpoenas to foreign entities outside
the jurisdiction of the United States. Motion at 6 (“Respondents seek leave to serve each of the
companies listed above with a subpoena, seeking to obtain testimonial and documentary evidence
on the issues set forth above.”); Motion at 6. Elsewhere respondents refer to the “laborious

provisions” and “cumbersome nature” of the Hague Convention procedures, Motion at 8, and

acknowledge that foreign discovery would entail transmittal of letters of request through
diplomatic channels to foreign Tequesting that they seek authorization from the
appropriate foreign judicial authorities to secure discovery on a particular person or entity.
Motion at 9. Respondents acknpwledge that the proposed procedure can be costly and tims
consuming and report that for that reason they have not prepared such letters of request. Id.

Since respondents have hot specified the foreign discovery they propose to pursue, it
cannot be determined at this time whether the showing required by Rule 3.36(b)(4) could be made
if respondents were to submit a i discovery request. Respondents have not made the
required showing with respect b the undefined discovery they propose. We outline below some
Of the difficulties respondents’ proposed foreign discovery would be likely to face.

For the basis of their Slagmed. 200d faith showing, respondents rely on the “Hague

-11-


Respondents have from time to time attempted to serve such subpoenas abroad.

To the extent the subpoenas appear to have the imuprimatur of the Commission, an

attempt to serve them on foreign entities outside the territorial limits of the U.S.

nay raise serious issues of Commission jurisdiction and international law. In the

interest of imiting or avoiding conflicts with foreign authorities in this area, the

Commission is putting foreign discovery requests back into the category of ALJ-

supervised discovery under § 3.36.
66 Fed. Reg. 17623, April 3, 2001 (citation omitted) (attached as Appendix 1). The Commission
further explained that the requirements of Rule 3.36 are designed to “assist the ALI in attempting
to prevent unnecessary conflicts with foreign sovereigns” and to assure that exercise of
compulsory process outside the United States will not be attempted unless domestic discovery

and vohmtary arrangements have been exhausted or are not available:
Indeed, the tests provided in § 3.36(b) provide a framework that closely tracks the
prerequisites for foreign discovery as commonly recognized by treaty, custom and
practice in many countries: That is, such discovery should only occur if a judge
determines that the request is reasonable and thas other means of obtaining the
information (such as domestic discovery or voluntary arrangements) have been
exhausted or are not available. .

66 FR 17623, April 3, 2001 (emphasis added, citation omitted). Thus, to effectuate the

Commission’s policy not to embroil the Commission in mnecessary international conflicts, itis .

important that respondents be beld to the standards the Commission established by amending Rule

3.36(b) specifically to avoid such conflicts. .

16 Respondents Have Failed to Make the Required Showing that the Discovery

They Seek Is Reasonable in Scope and Satisfies the Requirements of Rules
3.36 and 3.34

‘There is a long history of hostility of foreign governments to the application of U.S.
Giscovery practices to persons and firms in foreign countries, and most countries’ legal systems do
not provide for the wide-ranging discovery that characterizes U.S. practice. Thus, Rule

3.36(b)(1) requires respondents to demonstrate the reasonableness of proposed foreign discovery.

3.



CERTIFICATE OF SERVICE
I, Andrew D. Shapiro, hereby certify that on this 20th day of December, 2002, I
served a true and correct copy of: Respondents' Opposition To Complaint Counsel's Motion For
Leave To Depose Mr. Jean-Pierre Jolly For Good Cause, by hand delivery upon:

The Honorable D. Michael Chappell
Administrative Law Judge

Federal Trade Commission

600 Pennsylvania Avenue, N.W.
Washington, D.C. 20580

(two copies)

Assistant Director

Bureau of Competition

Federal Trade Commission

600 Pennsylvania Avenue, N.W.
Room S-3602

Washington, D.C. 20580

Steven L. Wilensky

Federal Trade Commission
601 Pennsylvania Avenue, N.W.

LM:
“A

Washington, D.C. 20580
Andrew D. Shapiro

11374344



CONCLUSION
Because of the disruptive and untimely nature of Complaint Counsel's motion,
Respondents respectfully request that this court deny Complaint Counsel's Motion For Leave To

Depose Mr. Jean-Pierre Jolly For Good Cause.

Dated: Washington, D.C. Respectfully submitted,

December 20, 2002 ( L 2):

Duane M. Kelley
Jeffrey A. Leon

Greg J. Miarecki
Andrew D. Shapiro
Winston & Strawn

35 W. Wacker Drive
Chicago, IL 60601-9703
(312) 558-5600 (voice)
(312) 558-5700 (fax)
dkelley@winston.com
jleon@winston.com
gmiareck@winston.com
Nada Sulaiman

Winston & Strawn

1400 L Street, N.W.
Washington, D.C. 20005
(202) 371-5700 (voice)
(202) 216-8600 (fax)
nsulaima@winston.com

Counsel for Respondents
Chicago Bridge & Iron Company N.V.
and Pitt Des-Moines, Inc.



Convention, Nov. 15, 1965, art. 1 et seg., 20 U.S.T. 361.” However, this Convention’ pertains
to the service of documents abroad, and does not apply to the seeking of evidence. See,e.g.,
Volkswagenwerk Aktiengeselischaft v. Schlunk, 486 U.S. 694, 698 (1988).* The relevant Hague
Convention is the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters,
. Mar. 18, 1970, 23 U.S.T. 2555, T.LAS. No. 7444, codified at 28 U.S.C. § 1781, which

provides for transmittal of letters rogatory or request in civil or commercial judicial proceedings.

Respondents have not shown that the relevant Hague Convention would provide the
réquisite basis to satisfy Rule 3.36(0)(4). Respondents acknowledge in their motion that most
foreign jurisdictions do not permit pretrial discovery, as practiced in the United States, and only
penmit evidence to be obtained for use at trial Motion at 9. However, respondents’ motion fails
to identify documents for use at trial with the requisite particularity, meaning that it would not be
possible based on the motion to frame a legally acceptable Request addressed to most foreign
jorisdictions.

Further, neither Japan nor Korea is even a Party to the Conventien,” rendering it
meaningless as to the request for evidence jn those countries. France and Sweden may well not

consider a non-criminal antitrust case filed by a government to be a “civil or commercial matter”

7 The Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil
and Commercial Matters Nov. 15, 1965, 20 U.S.T. 361, T.LA.S. No. 6638, codified at 2B U.S.C.
Appendix following Rule 4, Fed. R. Civ. P.

® “The Convention revised parts of the Hague Conventions on Civil Procedure of 1905
and 1954. The revision was intended to provide a simpler way to serve process abroad, to assure
that defendints sued in foreign jurisdictions would receive actual and timely notice of suit, and to
facilitate proof of service abroad.” 486 U.S. at 698.

? See Hague Conference on Private International Law, Full Stams Report #20 available at
http:/Avww.hech net/status/stat20e.htrnl; the list of signatories is also in Martindale-Hubbell Law
Directory, Law Digest Volume (2001) at IC-22-23.

-12-


supervision of the Administrative Law Judge.’ In 2001, the Commission-concemed about the
umerous issues and potential conflicts that often arise in connection with issuing compulsory
process to entities outside the United States--amended its Rules of Practice to require ALJ
supervision of proposed foreign compulsory process and to specify precise criteria thar parties
mst satisfy. Specifically, the amended Rule requires a party seeking issuance of a subpoena to be
served abroad to satisfy, in its motion, the same requirements for a subpoena under Rule 3.34 and
to make specific showings that:

(1) The material sought is reasonable in scope;

(2) ..- the material falls within the limits of discovery under § 3.31(€)(1) [ie., it is

reasonably expected to yield informarion relevant to the allegations of the

complaint, to the proposed relief, or to the defenses of any respondent; it is not

unreasonably cumulative or duplicative; it is not obtainable from some other

source that is more convenient, less burdensome, or Jess expensive; the party

seeking discovery has not had ample opportunity by discovery to obtain the

information sought, and the burden and expense of the proposed discovery does

not outweigh its likely benefit] . . . ;

(3) The information or material sought cannot reasonably be obtained by other
means; and

(4) ... the party seeking discovery has a good faith belief that the discovery
Tequested would be permitted by treaty, law, custom or practice in the country
from which the discovery is sought and that any additional procedural
requirements have been or will be met before the subpoena is served.

FIC Rules of Practice 3.36(b). Explaining the reasons behind the amendments, the Commission
stated:

> See, ¢.g., In the Maner of Hoechst Marion Roussel, Inc., et al., FTC Docket No. 9293,
Order Granting Motion of Biovail, Melnyk, and Cancellara to Quash Subpoenas and Denying
Motion of Andrx to Preclude, July 14, 2000, D. Michael Chappell, ALJ (subpoenas issued
pursuant to Commission Rule 3.34 must not violate international law, id. at 2, 4) (attached as
Appendix 2).

2


IN CAMERA



UNITED STATES OF AMERICA
BEFORE FEDERAL TRADE COMMISSION

In the Matter of

CHICAGO BRIDGE & IRON COMPANY N.V.,
a foreign corporation,

CHICAGO BRIDGE & IRON COMPANY,

a corporation, Docket No. 9300
and
PUBLIC RECORD
PITT-DES-MOINES, INC.,

a corporation.

SS SSS SS SH HH SH ED

RESPONDENTS' OPPOSITION TO COMPLAINT COUNSEL'S
MOTION FOR LEAVE TO DEPOSE MR. JEAN-PIERRE JOLLY FOR GOOD CAUSE

More than four weeks have passed since Respondents first informed Complaint
Counsel of its intention to call Jean-Pierre Jolly as a live witness. On Thursday, December 12,
2002, less than one week prior to Mr. Jolly's scheduled testimony, Complaint Counsel served
Respondents with its motion for leave to re-open discovery and depose Mr. Jolly. Further,
Complaint Counsel failed to serve Respondents until three days after it filed its motion with the
Court. This motion is untimely and unwarranted given the fact that Respondents and Complaint
Counsel have each had adequate opportunity to interview and obtain a signed declaration from
Mr. Jolly. Additionally, conducting a deposition at this late stage will be extremely disruptive to

the on-going trial. For the reasons stated herein, Complaint Counsel's motion should be denied.



convenient, less burdensome, or less expensive, that the party seeking discovery bas had ample
opportunity by discovery to obtain the information sought, or that the burden and expense of the
proposed discovery outweigh its likely benefit. Respondents’ motion reveals that they already
have in their possession, or are in the process of obtaining by other means, evidence relevant to
their asserted defenses without resort to foreign compulsory process. Respondents state their
belief that several foreign companies are currently either selling LNG tanks or are actively
pursuing LNG tank jobs in the United States. Motion at 2. Respondents fail to make any
showing why, in light of whatever information respondents rely on to make this representation,
foreign discovery is necessary.

Respondents have offered no showing either that they are unable to obtain the requested
evidence by subpoenaing their domestic customers or that these customers are otherwise
unavailable. Respondents concede that on March 14, 2002, Commission Counsel produced to
respondents nearly twenty affidavits from CB&I customers containing the views and experiences
of respondents’ customers regarding the degree to which foreign companies compete with CB&I
im the United States? Motion at 2-4. Respondents have already issued subpoenas to these
customers for testimony and documents relevant to the evidence sought by respondents in their
motion.

Respondents have issued subpoenas ad tesitificandum for deposition of witesses who
submitted declarations in the pre-complaint investigation of this matter. The individuals
subpoenaed included asset and project directors, general and technical managers, engineers, and

executives from companies mvolved in the design, construction and purchase of cryogenic tanks

? Respondents attached cight of these customer declarations to their motion.
5s



Farther, Rule 3.34(b) requires that any subpoena issued moust “specify with reasonable
particularity the material to be produced.” ,

Respondents’ motion fails to state with any degree of specificity the information they seek
to require foreign third parties to produce. Instead, it merely alleges that respondents need to
“obtain evidence directly from those foreign companies” to determine the ability of these
companies to compete in the U.S. Motion at 5, The motion lists foreign corporations that
respondents claim have either bid on projects or are currently bidding on projects in the U.S. and
recites eight questions, some incorporating assumptions advanced by respondents, as among the
factual issues on which respondents assert CB&I will need to take evidence from foreign
companies. Motion at 5-6.

Respondents have not attached to them motion the discovery requests they propose to
issue, but ask instead for carte blanche authority to issue their vaguely described proposed
subpoenas. Respondents cannot circumvent the showing required by Rule 3.36 simply by

- asserting, as they do in their motion, that each subpoena will be reasonable in scope and that each
subpoena will satisfy the particularity requirement of Rule 3.34, “as it would seek evidence ona
Timited number of specific topics, including those” outlined in respondents’ motion. Motion at7.
HI. Respondents Have Failed to Make a Showing that the Evidence Cannot

Reasonably Be Obtained from Another Source that Is More Convenient and

Less Burdensome as Required by Rule 3.36(b)(2)

Rule 3.36(b)(2) requires a specific showing that the material falls within the limits of
discovery under § 3.31(c)(1). Rule 3.31(c)(1) directs that use of discovery otherwise permitted
under the Rules shalt be limited by the ALJ if he determines either that the discovery sought is

‘unreasonably cummlative or duplicative or is obtainable from some other source that is more

4


UNITED STATES OF AMERICA.
BEFORE FEDERAL TRADE COMMISSION

Jn the Matter of

CHICAGO BRIDGE & IRON COMPANY N.V.

a foreign corporation,

CHICAGO BRIDGE & IRON COMPANY

a corporation, .

Docket No, 9300
and

PITT DES-MOINES, INC.

a corporation.

OOOO ead

To: The Honorable James P. Timony
Administrative Law Judge

COMMISSION COUNSEL'S RESPONSE TO RESPONDENTS’
MOTION FOR FOREIGN DISCOVERY PURSUANT TO RULE 3.36

On April 5, 2002, respondents filed an application pursuant to Rule 3.36 of the
Commiission’s Rules of Practice for leave to obtain evidence through compulsory process to be
issued to third parties in five foreign countries. Since this is the first motion to be decided under
this Rule, as amended in 2001, it is important to establish a clear and proper interpretation of the
Rule’s requirements.

As discussed below, respondents have failed to satisfy any of the elements of Rule 3.36(b).
Accordingly, respondents’ motion should be denied.
L The Requirements of Amended Rule 3.36(b)

As aresult of a 1996 amendment of the Commssion’s Rules, parties in Commission

proceedings occasionally sent subpoenas to parties located abroad, without the approval or



VL Conclusion

For the reasons stated herein respondents have not made the necessary showing under
Rule 3.36(b) to justify foreign discovery. Accordingly, respondents’ motion for authorization to.
conduct foreign discovery should be denied.

Respectfully submitted,

SED ALM.

RHETT R. KRULLA
STEVEN L. WILENSKY
CECILIA M. WALDECK
LISA A. ROSENTHAL
HECTOR F. RUIZ
Commission Counsel
Federal Trade Commission
601 Pennsylvania Avenue, NW.
‘Washington, D.C. 20580

Apsil 17, 2002 (202) 326-2650

~15-


since August 22, 2002, is similarly inconsequential. Facts and circumstances often change from
the time a witness signs an affidavit, or gives a deposition, to the time the witness ultimately
testifies at trial. As a matter of course, parties do not re-depose witnesses the day before trial to
ensure that nothing has changed since they last testified. Complaint Counsel obtained a sworn
statement from Mr. Jolly which it can use to cross-examine, and impeach if necessary, Mr. Jolly
at trial. Complaint Counsel does not have an inherent right to preview Mr. Jolly's testimony the
day before trial.

Vv. COMPLAINT COUNSEL WILL NOT BE UNDULY PREJUDICED IF THIS

COURT DOES NOT GRANT LEAVE TO RE-OPEN DISCOVERY AND DEPOSE
MR. JOLLY.

Complaint Counsel is clearly mistaken that it will be unduly prejudiced by not
having the opportunity to discuss with
Mr. Jolly. (Complaint Counsel's Motion at 4-6.) Complaint Counsel erroneously avers that it
did not have the opportunity to discuss this issue with Mr. Jolly because this "recent
development” occurred after August 22, 2002. (Complaint Counsel's Motion at 6.) Complaint

Counsel is incorrect.

Complaint Counsel's characterization
-of this information as a "recent development” is wrong.

VI. A DEPOSITION IS UNLIKELY TO BENEFIT THE COURT PROCEEDINGS
DURING MR. JOLLY'S APPEARANCE.

Complaint Counsel further asserts that a deposition is needed to identify portions

of Mr. Jolly's testimony for which Mr. Jolly may seek in camera treatment. (Complaint



Heavy Industries Co., Ltd. has previously sought business in the U.S.; and that BSL and Bay
Tank are pursuing a LIN/LOX project for Air Liquide in the U.S. Motion at 5-6. Respondents
can obtam additional documents and mformation regarding foreign suppliers’ alleged activities in _
the United States from customers and from the U.S. parmers of the foreign suppliers. Ifa foreign
supper and its domestic partner jointly develop a bid for a U.S. project, the domestic partner
would become apprized of the estimated total cost of the project, including the costs estimated for
work done by the foreign supplier and the domestic parmer. Additionally, the domestic partner
would become aware of the sunk costs involved in developing the bid or proposal.

IV. Respondents Have Failed to Make the Required Showing that the Evidence

Cannot Reasonably Be Obtained by Other Means as Required by Rule

3.36(b)(3)

Rule 3.36(b)(3) requires respondents to make a specific showing that “[t]he information or
Toaterial sought cannot reasonably be obtained by other means.” The Federal Register notice
accompanying the publication of the mile explains that:

[foreign] discovery should only occur if a judge determines that . . . other means of

obtaining the information (such as domestic discovery or voluntary arrangements) have
been exhausted or are not available.

66 Fed. Reg. 17623, April 3, 2001 (emphasis added). This is consistent with the express policy of
the U.S. and other nations to minimize conflicts in the enforcement of antitrust laws that can arise
from, inter alia, attempts to enforce discovery outside the territory. Thus, the United States
antitrust agencies adhere to principles of international comity by taking into account the interests

of the affected foreign country in conducting law enforcement proceedings,’ This policy is also

* See, e-g., Department of Justice and Federal Trade Conmnission, Antitrost Enforcement
Guidelines for International Operations 3.2 (April 1995) (“DOJ & FTC, Antitrust Enforcement
Guidelines”) (“In enforcing the antitrust laws, the Agencies consider international comity.”).

-B-


domestic offices in the United States where process can be served or whether these companies
have officers, directors, or agents present in the United States on whom process may be served.
As respondents acknowledge in their motion, some of the cited foreign companies have
subsidiaries that operate in the U.S. Motion at 8. For example, Skanska/Whessoe bas a U.S.
subsidiary named Skanska USA Inc. with offices in New York and Connecticut. If this subsidiary
is involved in supporting Skanska/Whessoe’s alleged effort to develop proposals for U.S. LNG, it
should have relevant evidence.

Further, respondents have failed to demonstrate that they cannot obtain the requested
evidence voluntarily from the foreign companies. See Commission Statement, 66 Fed. Reg.
17623, April 3, 2001, citing OECD Revised Recommendation, ORCD Doe. C (95)130 (Final)
Tuly, 1995 at Appendix J 8(a)-(c) and DOJ & ETC, Antitrust Enforcement Guidelines. The
Antitrust Enforcement Guidelines For International Operations issued by the U.S. Department of
Justice and the Federal Trade Commission, cited at note 3 of the FIC’s Federal Register notice
accompanying publication of revised Rule 3.36, provide:

In conducting investigations that require documents that are located outside the

United States, or contacts with persons located outside the United States, the Agencies

first consider requests for voluntery cooperation when practical and consistent with

enforcement objectives. [

DOI & FIC, Antitrust Enforcerhent Guidelmes {4.2 (April 1995). Respondents have made no

showing in their motion that Ln to determine whether

they willl volunterily provide do statements, or deposition testimony.

v. Respondents Have Failed to Show that the Discovery Requested Wonld Be
Permitted by Treaty, Law, Custom or Practice as Required by Rule
3.36(b)(4) :

Rule 3.36(0)(4) requires that a motion applying for issuance of a subpoena to be served in
i
i
i

-10-


Court had allowed such discovery, both sides would have had the opportunity to depose Mr.
Jolly, as well as other foreign witnesses. Complaint Counsel, however, opposed foreign
discovery arguing, inter alia, that there were "ample means" of obtaining and presenting evidence
without engaging in foreign discovery. (Attachment 1 at 9.) Complaint Counsel now, long after
the close of discovery and a week before Mr. Jolly is scheduled to testify, has come to the
conclusion that the deposition of a foreign witness is important. It is too late. Complaint
Counsel had the opportunity to seek foreign discovery but chose instead to oppose it.

Iv. GOOD CAUSE DOES NOT EXIST FOR THIS COURT TO RE-OPEN
DISCOVERY AND GRANT LEAVE TO DEPOSE MR. JOLLY.

Complaint Counsel failed to adequately prove the existence of good cause. Upon
learning of Mr. Jolly's existence, and his relevance as a foreign competitor, Complaint Counsel
contacted Mr. Jolly, conducted more than four and a half hours of interviews and obtained a
signed declaration. (Complaint Counsel's Motion at Attachment 6.) Mr. Jolly provided all of
this information voluntarily. In fact, Complaint Counsel concedes that "both parties appear to
have had equal opportunity to secure information from Mr. Jolly on a voluntary basis.”
(Complaint Counsel's Motion at 3.) Complaint Counsel argues, however, that despite all of the
voluntary information Mr. Jolly provided, it has not had access to Mr. Jolly since he signed his
declaration on August 22, 2002. Complaint Counsel is concerned that Mr. Jolly's testimony may
have changed since late August.

Mr. Jolly's unavailability and Complaint Counsel's concern that his testimony may
have changed do not constitute good cause to re-open discovery and depose him. Complaint
Counsel's argument that it has not spoken to Mr. Jolly since August 22, 2002 is immaterial given
the fact that Respondents also have not interviewed Mr. Jolly since June 2002. Both parties have

had equal access. Complaint Counsel's concern that Mr. Jolly's testimony may have changed


I. COMPLAINT COUNSEL INEXPLICABLY FAILED TO SERVE
RESPONDENTS UNTIL THREE DAYS AFTER IT FILED ITS MOTION WITH
THE COURT.

Despite filing its motion with the Court on Monday, December 9, 2002,
Complaint Counsel inexplicably failed to serve Respondents until 1:30 p.m. on Thursday,
December 12, 2002. Complaint Counsel's error is significant given the time sensitive nature of
its motion; Complaint Counsel presumably plans to depose Mr. Jolly next Tuesday, December
17, 2002. Due to Complaint Counsel's oversight, Respondents have had less than 30 hours to file
this response. Based on this reason alone, the Court should deny Complaint Counsel's motion.
Il. COMPLAINT COUNSEL'S ASSERTION THAT A DEPOSITION IS NEEDED

TO ASCERTAIN WHETHER MR. JOLLY WILL REQUIRE AN INTERPRETER
DURING HIS IN-COURT TESTIMONY IS DISINGENUOUS.

Complaint Counsel disingenuously argues that a deposition would afford it the
opportunity to determine if Mr. Jolly will require a translator at trial. (Complaint Counsel's
Motion at 7.) This argument is surprising given the fact that Complaint Counsel interviewed Mr.
Jolly for more than four and a half hours and ultimately persuaded him to sign a declaration.
(Complaint Counsel's Motion at Attachment 6.) It is difficult to believe that despite Complaint
Counsel's extensive interaction with Mr. Jolly it is still uncertain about his command of the
English language. Was Complaint Counsel uncertain when it moved his declaration, written in
English, into evidence? Regardless, Complaint Counsel can assuage its concerns by merely
scheduling a translator to attend court, just in case, on the day Mr. Jolly is scheduled to testify.
A deposition is not required.

I. COMPLAINT COUNSEL OPPOSED RESPONDENT'S MOTION TO ALLOW
FOREIGN DISCOVERY.

Complaint Counsel had ample opportunity, before the close of discovery, to seek

foreign discovery. In fact, Respondents petitioned this Court to allow foreign discovery. If the



and thermal vacuum chambers. In addition, on April 9 through April 11, 2002, respondents
issued subpoenas duces tecum and subpoenas ad tesitificandum directing thirteen companies to
designate one or more officers, directors, managing agents, or other persons to testify on their
behalf regarding: (1) foreign and domestic suppliers and manufacturers of cryogenic tanks
worldwide; (2) the ability of foreign companies to compete in the U.S. market for cryogenic
tanks; (3) the ability of foreign and domestic companies to enter the U.S. market for cryogenic
tanks; (4) the ability of foreign companies to hire and utilize U-S.-based field crews in the U.S.
Mtmarket for field erection of cryogenic tanks; (5) attempts by Skanska/Whessoe, Tokyo Kanetsu
KK. (TKK), Entrepose, Bouygues/Technigaz, Tractebel, MHI, IHI, Technip/Coflexip or any
other foreign company to enter the U.S. market for cryogenic tanks; (6) the extent to which
foreign companies are aware of, and are able to work with, U.S. design codes and the domestic
infrastructure needed to compete in the U.S. market for cryogenic tanks; (7) methods used (or
able to be used) by foreign companies in conducting the construction phase of field-erected
cryogenic tanks; and (8) foreign and domestic seppliers and mamifacturers of cryogenic tanks
and/or vacuum chambers worldwide.

CB&I and its customers are at least as likely as foreign suppliers to have evidence relevant
10 respondents’ assertions. For example, one factual issue on which respondents propose to take
evidence from foreign companies is “what cost acvantages do the foreign companies have over
CB&1?” Motion at 6. United States customers who have received and compared competing
proposals fromm CB&d1, Pitt Des-Moines, and foreign suppliers, and who have negotiated with
suppliers for construction of relevant products, are likely to be in the best position to provide first

hand comparisons of project costs submitted by competing suppliers. Moreover, CB&I is the

6



embodied in intemational instruments such as the OECD Recommendation on antitrust
cooperation,’ which calls for member countries to consider whether information is available from
sources within their national territory before seeking foreign discovery and to seek voluntary
production of foreign-located evidence before resorting to the use of compulsory process,®

Respondents argue that they “simply do not have the luxury of taking the time” to comply
with the requirement of Rule 3.36(b)(3) that they exhaust other means of obtaining the
information. Motion at 8. Respondents’ haste does not excuse non-compliance with the mle. As
discussed supra at 5-8, respondents have available to them ample means of obtaining and
presenting evidence relevant to their defense without engaging in foreign discovery. Respondents
have failed to demonstrate or proffer any attempts to obtain the evidence through other means in
the United States.

Section 9 of the FTC Act, which governs the use of subpoenas in Commission
investigations and in adjudicative proceedings, authorizes the Commission to require by subpoena
the attendunce aué'testimony of witnesses and the production of documentary evidence “from any
place in the United States.” 15 U.S.C. § 49.6 Respondents’ motion does not state that

respondents have attempted to determine whether the companies listed-in their motion have

* Revised Recommendation of the OECD Council Concerning Co-operation Between
Member Countries on Anticompetitive Business Practices Affecting Intemational Trade, OBCD
Doc. C (95)130 (Final) (July 1995) (attached as Appendix 3).

° Id., Appendix J 8; OBCD, Competition Law Enforcement: International Cooperation in
the Collection of Information (1984) at J 168.

® Section 9 imposes the same geographic limitation when compulsory process is sought in
a Part Ill proceeding. 15 U.S.C. § 49 (“Any person may be compelled to appear and depose and
to produce documentary evidence in the same manner as witnesses may be compelled to appear
and testify and produce documentary evidence betore the Commission as hereinbefore provided”).

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