Disclosure in European Competition Litigation Through the Lens of US Discovery

Andreas Ruster; Sebastian von Massow

Disclosure in European Competition Litigation Through the Lens of US Discovery

Publikation: Beiträge in Zeitschriften › Zeitschriftenaufsätze › Forschung › begutachtet

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Disclosure in European Competition Litigation Through the Lens of US Discovery. / Ruster, Andreas; von Massow, Sebastian.
in: World Competition, Jahrgang 43, Nr. 3, 09.2020, S. 347-372.

Publikation: Beiträge in Zeitschriften › Zeitschriftenaufsätze › Forschung › begutachtet

Bibtex

@article{81b96461b0a74162962f78ece78d1c45,

title = "Disclosure in European Competition Litigation Through the Lens of US Discovery",

abstract = "The disclosure regime introduced by the EU Damages Directive is largely unprecedented in many EU Member States. Its implementation raises a number of thorny questions for both legal scholarship and practice. This contribution proposes a comparative analysis of Germany's implementation through the lens of US discovery as a means of exposing issues, testing weaknesses, and exploring potential solutions. While the US certainly does not get everything right, it has grappled with questions of disclosure for decades. This wealth of experience and case law provides a rich vein for European (civil law) legislators and practitioners alike to mine. To this end, we analyse the key uncertainties that persist in Germany's implementation: from the conditions and costs of disclosure, to the protections against disclosure, and the consequences of a breach. Each step of the way the US model serves as a preface to the German approach, providing context for a critical comparative analysis. We conclude with practical recommendations for the future.",

keywords = "Disclosure, Discovery, Damages Directive, Comparative Law, European Law, German Law, US Law, Litigation Hold, Legal Privilege, Principle of Effectiveness, Law",

author = "Andreas Ruster and {von Massow}, Sebastian",

year = "2020",

month = sep,

language = "English",

volume = "43",

pages = "347--372",

journal = "World Competition",

issn = "1011-4548",

publisher = "Kluwer Law International",

number = "3",

}

RIS

TY - JOUR

T1 - Disclosure in European Competition Litigation Through the Lens of US Discovery

AU - Ruster, Andreas

AU - von Massow, Sebastian

PY - 2020/9

Y1 - 2020/9

N2 - The disclosure regime introduced by the EU Damages Directive is largely unprecedented in many EU Member States. Its implementation raises a number of thorny questions for both legal scholarship and practice. This contribution proposes a comparative analysis of Germany's implementation through the lens of US discovery as a means of exposing issues, testing weaknesses, and exploring potential solutions. While the US certainly does not get everything right, it has grappled with questions of disclosure for decades. This wealth of experience and case law provides a rich vein for European (civil law) legislators and practitioners alike to mine. To this end, we analyse the key uncertainties that persist in Germany's implementation: from the conditions and costs of disclosure, to the protections against disclosure, and the consequences of a breach. Each step of the way the US model serves as a preface to the German approach, providing context for a critical comparative analysis. We conclude with practical recommendations for the future.

AB - The disclosure regime introduced by the EU Damages Directive is largely unprecedented in many EU Member States. Its implementation raises a number of thorny questions for both legal scholarship and practice. This contribution proposes a comparative analysis of Germany's implementation through the lens of US discovery as a means of exposing issues, testing weaknesses, and exploring potential solutions. While the US certainly does not get everything right, it has grappled with questions of disclosure for decades. This wealth of experience and case law provides a rich vein for European (civil law) legislators and practitioners alike to mine. To this end, we analyse the key uncertainties that persist in Germany's implementation: from the conditions and costs of disclosure, to the protections against disclosure, and the consequences of a breach. Each step of the way the US model serves as a preface to the German approach, providing context for a critical comparative analysis. We conclude with practical recommendations for the future.

KW - Disclosure

KW - Discovery

KW - Damages Directive

KW - Comparative Law

KW - European Law

KW - German Law

KW - US Law

KW - Litigation Hold

KW - Legal Privilege

KW - Principle of Effectiveness

KW - Law

M3 - Journal articles

VL - 43

SP - 347

EP - 372

JO - World Competition

JF - World Competition

SN - 1011-4548

IS - 3

ER -