IN RE CAPACITORS ANTITRUST LITIGATION

Background

Five witnesses affiliated with defendants asserted the Fifth Amendment privilege against self-incrimination during discovery depositions and declined to answer substantive questions. The witnesses were Satoshi Okubo, who was affiliated at different times with Matsuo and ELNA; Tomohiro Inoue, Shin Kinoshita, and Hiroyuki Imai, who were affiliated with ELNA; and Noriaki Kakizaki, who was affiliated with NCC. The court said they were executives employed by affiliated defendants and might know facts relevant to the direct purchaser plaintiffs’ price-fixing allegations.

After discovery and other pretrial proceedings had ended, defendants announced that the witnesses had changed their positions and would testify at trial without invoking the privilege. Trial was scheduled to begin on March 2, 2020. Defendants filed motions concerning the witnesses’ proposed trial testimony. The direct purchaser plaintiffs argued that it was too late for the witnesses to withdraw the privilege and that the plaintiffs should receive a jury instruction allowing an adverse inference—a negative conclusion based on the witnesses’ earlier refusal to answer.

Court’s Analysis

The court treated the dispute primarily as a problem of trial preparation and fairness, rather than deciding only whether the witnesses could withdraw their privilege. It stated that parties should be able to present at trial evidence developed through diligent preparation. Because the witnesses had been unavailable during discovery, the court found that defendants’ proposed use of them at trial was not acceptable without additional protection for the plaintiffs.

The court also found that the plaintiffs had been told in late October 2019 that the witnesses had changed positions and that defendants would make them available for depositions. The plaintiffs did not schedule those depositions or promptly bring their concerns to the court. Even so, the court concluded that defendants bore most of the responsibility for creating the problem and that the plaintiffs’ expert opinions, motion papers, and trial preparation had been affected to some extent.

The court said that if defendants had disclosed the witnesses’ changed positions closer to trial, it could have barred their testimony and required defendants to rely on the witnesses’ deposition statements. Because several months remained before trial, however, the court chose a conditional approach intended to allow the jury to receive as complete an understanding of the case as realistically possible.

Order

The court ordered that the identified witnesses could withdraw their privilege assertions and testify at trial only if defendants made them available for depositions at a time and location in the United States that was reasonably convenient for the direct purchaser plaintiffs. The court expected the witnesses to answer the questions for which they had previously asserted the privilege.

Defendants were ordered to pay the reasonable fees and costs associated with the depositions, including court reporter, videographer, and interpreter expenses. Defendants also had to pay the reasonable attorney fees and costs for one lawyer representing the direct purchaser plaintiffs at each deposition.

A witness who was not made available under those conditions could not withdraw the privilege assertion or testify at trial. The court deferred deciding whether the plaintiffs could revise their expert reports or pending motion papers until after the depositions and the plaintiffs’ evaluation of their circumstances. The court stated that no amended reports or filings based on the depositions could be filed without prior court permission.

The court also stated that it had not made a final decision about whether, or to what extent, the jury would receive an adverse-inference instruction. That issue would be considered as warranted at a pretrial conference.