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This chapter provides a review of the current structural and kinetic models for transcription elongation and termination. It describes the regulatory molecules that are known to influence the elongation/termination decision by RNA polymerase (RNAP), with the emphasis on the most recent findings and on the mechanism of ‘‘active’’ regulators whose actions are not limited to changes in RNA folding. Interactions between RNAP and the nucleic acid chains, as well as the RNA:DNA pairing in the hybrid, all contribute to the extraordinary stability of the elongating transcription elongation complexes (TECs). RNA release is triggered at sites where the nascent RNA folds into a stable, GC-rich hairpin followed by a stretch of the U-rich RNA. Rho is the main termination protein in Escherichia coli, where it is thought to control ~ 50% of all termination events. Feedback control of the operons that encode ribosomal protein synthesis is commonly accomplished by autogenous regulation by one of the products. Alc protein terminates transcription at several sites on a nonmodified host DNA, but not on the phage DNA that contains hydroxymethyl cytosine residue. The bgl operon in E. coli is regulated in response to the availability of a substrate β-glucoside by BglG induced antitermination. The RNA binding by BglG is regulated by BglF-mediated phosphorylation: in the absence of inducer, BglF phosphorylates BglG and inhibits its RNA binding activity; when β-glucosides are available, BglF dephosphorylates BglG, which now binds to its target and prevents transcription termination.
Schematic model of the TEC. RNAP (gray oval) is bound to the DNA duplex (black circles; T, template strand; NT, nontemplate strand) from ~-20 to ~+15 relative to the position of the 50 end of the encoded RNA (as judged from the protection against cleavage by various probes that it confers to the DNA). The 12 to 13 bp of the DNA duplex are melted in the transcription bubble. The nontemplate DNA strand is exposed on the surface of RNAP ( 48 ), where it becomes available for interactions with the regulatory proteins ( 5 , 77 ).The nascent RNA (white circles) is annealed to the template strand to form 8 to 9 bp of the RNA● DNA hybrid (bound in the HBS) and is extruded from the TECs at ~14 nt from the 30 end. In the active TECs, the 3′ end of the RNA is located in the active site. In the backtracked TECs, the 3′ portion of the RNA (dashed circles) is threaded through the active site into the secondary channel, thus preventing the substrate NTP entry. Three principal interactions are distinguished ( 47 ): the DNA-binding site (DBS), the front zip-lock (FZ), and the rear zip-lock (RZ). Cross-linking analysis of the E. coli RNAP core (α2ββ′ complex) bound to the RNA and DNA to form the TEC (see reference 48 and references therein) identifies the β′ jaw/β lobe module as the DBS, the active site as the FZ, and a combination of β flap, β region D, and β′ rudder as the RZ. Although originally the rudder was postulated to play a key role in RNA displacement, recent evidence indicates that the rudder stabilizes the TEC through direct contacts with RNA, but is not required for either RNA displacement or the maintenance of the transcription bubble ( 50 ).
Branched regulatory pathways in transcript elongation. At least two TEC states that are competent for elongation can be distinguished ( 20 ). The activated pathway (asterisk) may require binding of the NTP in an "allosteric" site ( 25 ) or a conformational change induced by a substitution in RNAP. The unactivated pathway is characterized by a lower rate of NMP addition and represents a collection of intermediate states from which all the off-pathway states (pause, arrest, termination, and editing) are formed. This mechanism incorporates a previously proposed pathway (on a gray background) where certain nucleic acid signals trigger isomerization of TEC into a slow intermediate state ( 4 ). From the slow intermediate (n), the TEC can either slowly escape to the elongation pathway (upon nucleotide addition), or further isomerize into different types of pause, arrest, and termination complexes. Formation of an RNA hairpin would result in class I pausing, whereas backtracking would lead to a class II pause or arrest; termination could occur via either of these pathways. The principal difference between the slow intermediate and the parallel-path mechanisms is that the slow state is assumed to be short-lived in the former, and returns to the activated pathway upon NMP addition (escape) or NTP binding (reverse isomerization), but could persist for many rounds of catalysis in the latter. Isomerization into the termination and arrested states is irreversible and may proceed via formation of a significant kinetic intermediate ( 21 , 24 , 108 ).
Antitermination mechanisms. Isomerization of a rapidly elongating TEC into a terminating complex proceeds through several steps at both Rho-dependent (top) and intrinsic (bottom) sites. Regulatory mechanisms that target one or more steps are known. As pausing precedes termination, RNA release can be inhibited by factors that also inhibit pausing (λ N, λ Q, and put). In contrast, other factors may preferentially inhibit hairpin formation at intrinsic terminators (alternative RNA structures, ssRNA-binding proteins, and possibly p7) or Rho access to the nascent RNA (the stalled ribosome, maybe Psu). Antitermination factors may also actively stabilize the TEC against dissociation (λ N and λ Q). Two alternative models for the mechanism of the nascent RNA release have been proposed. In a forward translocation model, RNAP slides forward (without necessarily changing its conformation), leaving the transcript behind ( 107 ). In an allosteric model, a regulatory signal (e.g., formation of a terminator hairpin) triggers a series of cooperative conformational changes in the TEC that lead to opening of a crab-claw-shaped TEC and the concomitant release of the nucleic acids ( 51 ).
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text:
S. Dia hit by pitch.
Y. Arr hit by pitch.
T. Peters singled to right field; Y. Arr advanced to second.
K. Medra singled to first base, bunt; O. Nanez advanced to second.
S. Torre doubled to center field, RBI; K. Medra advanced to third; O. Nanez scored.
J. Chaco grounded out to p, SAC, bunt, RBI; S. Torre advanced to third; K. Medra scored.
G. Perez reached first on an error by 3b, RBI; S. Torre scored.
S. Dia singled down the lf line, RBI; G. Perez scored, unearned.
N. Vel singled to left field, RBI; S. Dia scored, unearned.
A. Allen pinch ran for N. Vel.
A. Helmu singled to center field, RBI; A. Allen scored, unearned.
M. Tala pinch ran for A. Helmu.
L. Mont pinch ran for O. Nanez.
K. Medra walked; L. Mont advanced to second; M. Tala advanced to third.
D. Rui pinch hit for S. Torre.
C. Val singled, advanced to second on a throwing error by cf, RBI; A. Baraj scored.
J. Chaco singled to right field.
L. Rios pinch hit for S. Dia.
L. Rios grounded out to 2b, RBI; G. Perez advanced to second; J. Chaco scored.
V. Feble hit by pitch.
V. Feble advanced to second; G. Perez advanced to third on a wild pitch.
A. Allen tripled to right field, 2 RBI; V. Feble scored; G. Perez scored.
high drive deep down the RL.
M. Tala singled up the middle, RBI; A. Allen scored.
M. Tala advanced to second on a passed ball.
M. Tala advanced to third on a wild pitch.
L. Mont reached first on an error by 1b, RBI; M. Tala scored, unearned.
K. Medra hit by pitch; L. Mont advanced to second.
D. Rui singled up the middle, advanced to second, RBI; K. Medra advanced to third; L. Mont scored.
G. Gomez to p for S. Oro.
J. Chaco grounded out to cf unassisted, sacrifice fly, RBI; D. Rui advanced to third; K. Medra scored, unearned.
L. Rios singled to right field, RBI; G. Perez advanced to third; D. Rui scored, unearned.
L. Rios advanced to second on a wild pitch.
V. Feble singled to left field, RBI; L. Rios advanced to third; G. Perez scored, unearned.
A. Allen walked; V. Feble advanced to second.
A. Helmu to dp for M. Tala.
A. Helmu singled to left field, RBI; A. Allen advanced to second; V. Feble advanced to third; L. Rios scored, unearned.
L. Mont singled to center field, 2 RBI; A. Helmu advanced to second; A. Allen scored, unearned; V. Feble scored, unearned.
B. Herna singled to center field.
A. Park pinch hit for G. Gomez.
D. Hack to p for A. Park.
S. Torre to 2b for D. Rui.
S. Torre doubled to left field.
S. Torre advanced to third on a wild pitch.
G. Perez grounded out to ss, RBI; S. Torre scored.
S. Dia to 3b for L. Rios.
O. Nanez to rf for L. Mont.
A. Lawr pinch hit for B. Pasil.
A. Mus singled to first base, bunt.


This matter comes before the Court sua sponte. For the reasons that follow, the Court DISMISSES pro se Plaintiff Abeyomi Elmoor Bey's complaint with leave to amend. Dkt. # 3.
On January 9, 2018, Plaintiff filed this action against Defendant, King County Prosecutor Daniel T. Satterberg. Dkt. # 1. Plaintiff appears to be challenging a complaint in a criminal matter in the King County District Court. Dkt. # 3 at 7. Plaintiff also submitted an application to proceed in forma pauperis. Dkt. # 1. The Honorable James P. Donohue granted the application. Dkt. # 2.
The Court's authority to grant in forma pauperis status derives from 28 U.S.C. § 1915. The Court is required to dismiss an in forma pauperis plaintiff's case if the Court determines that “the action . . . (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); see also See Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (“[S]ection 1915(e) applies to all in forma pauperis complaints, not just those filed by prisoners.”). A complaint is frivolous if it lacks a basis in law or fact. Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005). A complaint fails to state a claim if it does not “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 568 (2007).
“The legal standard for dismissing a complaint for failure to state a claim under 28 U.S.C. § 1915(e)(2)(B)(ii) parallels that used when ruling on dismissal under Federal Rule of Civil Procedure 12(b)(6).” Day v. Florida, No. 14-378-RSM, 2014 WL 1412302, at *4 (W.D. Wash. Apr. 10, 2014) (citing Lopez, 203 F.3d at 1129). Rule 12(b)(6) permits a court to dismiss a complaint for failure to state a claim. The rule requires the court to assume the truth of the complaint's factual allegations and credit all reasonable inferences arising from those allegations. Sanders v. Brown, 504 F.3d 903, 910 (9th Cir. 2007). The plaintiff must point to factual allegations that “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 568 (2007). Where a plaintiff proceeds pro se, the court must construe the plaintiff's complaint liberally. Johnson v. Lucent Techs. Inc., 653 F.3d 1000, 1011 (9th Cir. 2011) (citing Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010)).
Before proceeding further with this matter, the court is obligated to determine whether it has subject matter jurisdiction. Moore v. Maricopa County Sheriff's Office, 657 F.3d 890, 894 (9th Cir. 2011); Fed. R. Civ. Proc. 12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”). Absent jurisdiction, any determination on the merits would be void. Watts v. Pickney, 757 F.2d 406, 409 (9th Cir. 1985). Plaintiff attaches what appears to be state court records as exhibits to his Complaint, including the referenced state court complaint, an affidavit, and a notice of removal. Dkt. # 3. While it is unclear whether the criminal matter referenced in the Complaint is ongoing, to the extent that it is, this Court has no jurisdiction over that matter.
To the extent that Plaintiff is attempting to remove that matter to this Court, he provides no basis for removal. Dkt. # 3 Ex. 2. Removal to federal court is governed by 28 U.S.C. § 1441, which in relevant part states that “any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or defendants.” Original jurisdiction may be based on diversity or the existence of a federal question, as set forth in 28 U.S.C. §§ 1331 and 1332. District courts have diversity jurisdiction over all civil actions between citizens of different states where the amount in controversy exceeds $75, 000, exclusive of interest and costs. 28 U.S.C. § 1332. Plaintiff makes no allegations that support a finding of federal question jurisdiction or diversity jurisdiction.
Even assuming that the Court did have jurisdiction over this matter, and taking all allegations in the light most favorable to the Plaintiff, the Complaint fails to state a claim showing that he is entitled to relief. Plaintiff appears to be disputing his state charges of Driving While License Suspended/Revoked In The Third Degree and Refusal To Give Information/Cooperate With Officer. Dkt. # 3 at 7. Plaintiff cites to several state law cases, the Constitution, and international law, but provides no further detail as to how any of these laws are relevant to his claim or how Defendant violated any rights related to these laws. Dkt. # 3. He also alleges that he is not subject to the laws of the United States and is subject only to the “Divine Constitution and By-Laws of the Moorish Science Temple of America.” Id. Plaintiff alleges that his due process rights have been violated, but none of his allegations establish how Defendant violated these rights. Taking these allegations as true and construing them liberally, the Court concludes that Plaintiff's Complaint is frivolous and fails to state a valid claim for relief.


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Part Two of Guest Blog by Judge Ralph Artigliere.
See below for Part One.
If the discovery needed is “x”, do not ask for 2x or 3x, hoping the judge will give you at least x. Avoid the temptation to ask for more than is needed to guard against the judge “splitting the baby.” As a mediator before I became a judge, I repeatedly witnessed the dance of offers and counter-offers posed by the parties that led magically to a number somewhere between the opening demand and the opening offer some hours or days later. Representations to a judge are a totally different matter. As a judge, I expected lawyers to truthfully present their position, not posture toward a result. It is dishonest and unethical to ask for 2x when x is just and proper. In electronic discovery, it can have unintended adverse consequences, excessive cost and data dumping being two of them. However, the most costly unintended consequence is losing the trust of the judge and opposing counsel when the truth becomes evident. The same applies to opposing a request. Do not advocate producing x when only 2x will provide full discovery. The truth tends to surface as the case progresses, and judges constantly assess and learn which counsel to trust. Earn and keep the judge’s trust.
In a contested hearing, the judge will expect that there may be two honestly held opposing positions on scope of discovery from which the judge must choose or in the alternative create some compromise. What a state court judge may not have is a good feel for the burden of excessive discovery and proportionality. Judges may need to be educated on staged discovery, sampling, and cost-shifting as methods for keeping costs in line. Proportionality, while a feature of Florida discovery jurisprudence, has not been frequently encountered, and until the concept is experienced more often, the propensity may be to ensure that the requesting party gets everything needed to make their case.
Judges love it when lawyers are professional and work out issues themselves. It is efficient and allows the court to address the real issues. Two Florida state court judges have signed on to the Sedona Conference® Cooperation Proclamation. So far, Judges Richard Nielsen (Tampa) and Thomas Smith (Orlando) have signed on. Both of those judges sat in their circuit’s commercial divisions. I expect that most judges agree that discovery should not be the primary battleground in a case. Cases ought to be decided on the merits of the case after full and fair discovery by both sides.
A benefit of cooperation and compromise is reaching a known result. Two experienced lawyers with conflicting views and a middle ground that both could live with may end up with a judicial decision that neither likes from the judge. Until state court judges become more familiar with deciding the tough calls in eDiscovery, two experienced lawyers may be able to reach a better alternative than the judge.
The price paid can transcend monetary sanctions in a given case. Judges talk to each other. I never anticipated until I got on the bench how broadly an ethical misstep in court is discussed among the judges, within and beyond a given courthouse. I had judges from other jurisdictions call me to ask about whether he or she could trust a certain lawyer. A lawyer’s reputation is priceless. Part of that reputation is the ability to control the client. Do not let clients hurt themselves by enabling or overlooking client discovery misconduct; client misconduct will adversely reflect on the lawyer in the end.
Honesty also involves the efficient and economical handling of cases. Ardent advocacy does not call for unjustified opposition or excessive discovery. Lawyers who prolong litigation or engage in unnecessary discovery battles in order to keep busy or run up bills are as dishonest as a liar. Judges watch for trends. When I sat on Board Certification review as a member of the Board of Legal Specialization and Education, a lawyer was denied recertification in part because of judicial and lawyer peer review observations of consistently excessive litigation and fees. Judicial and lawyer evaluations determine certification and recertification as well as reputation. However, even if the judge does not catch on, correction for excessive litigation is commonly made by the client. Clients leave. And rightfully so.
Sanctions as a Remedy and a Deterrent: How Will It Play Out in State Court?
Florida’s rule of civil procedure on sanctions, Fla. R. Civ. P. 1.380, is similar to Fed. R. Civ. P. 37. Federal precedent in electronic discovery sanctions should present a formidable influence when the inevitable eDiscovery bumbling, bungling, and deception play out in Florida state courts. Federal court judges, working in a narrower jurisdiction and with a set of rules tailored to electronically stored information, experienced the electronic discovery wave before state court judges. There is a wealth of experience and written decisions from some bright folks on the federal bench on sanctionable conduct, giving then valuable perspective. Plus, federal judges have lifetime appointments, freeing them up to sanction parties and lawyers who misbehave or make mistakes with electronically stored information. However, despite clear written warnings in cases in which federal judges meted out rather stern punishment, lawyers in good firms and their clients are still getting hammered in federal court for electronic discovery abuses and shortfalls. If, as Ralph Losey has said, e-discovery sanctions are reaching epidemic proportions, when will they ever learn in federal court? See: Losey’s articles on ethics.
By contrast, Florida state court judges have seen fewer cases and have not experienced electronic discovery abuses by parties and their lawyers at nearly the level seen in federal court. Judges and lawyers are more communal in state court. Plus, state court judges are elected and do not feel bulletproof when sanctioning lawyers that appear before them. Should such considerations affect decisions to sanction? Absolutely not. However, in the real world judges are human, and it will be interesting to see whether eDiscovery sanctions play out in state court the same way they do in federal court, at least as pertains to sanctions against outside counsel.
Knowing and teaching Florida judges, I trust most Florida state court judges will do the right thing. Florida sanctions cases to date bode well for judicial courage and comprehension of discovery issues, at least when the parties are the subject of sanctions.See, e.g., Coleman (Parent) Holdings, Inc. v. Morgan Stanley & Co., Inc., Case No. 502003-CA-005045XXOCAI (15th Jud. Cir. Mar. 1, 2005) (Judge Elizabeth Maass sanctioned a party for destruction of electronic records in a securities case when litigation was reasonably expected and when the records were required to be kept for two years by federal regulation); Channel Components, Inc. v. Am. II Elecs., Inc., 915 So. 2d 1278, 1285 (Fla. 2d DCA 2005) ($75000 fine imposed by circuit judge for failure to comply with discovery orders was an appropriate coercive civil contempt sanction and not a fine); Menke v. Broward County Sch. Bd., 916 So. 2d 8, 10 (Fla. 4th DCA 2005) (sanctions for spoliation, failure to preserve, and failure to comply with agreed discovery order); Eugene Strasser, M.D., P.A. v. Bose Yalamanchi, M.D., P.A., 783 So. 2d 1087 (Fla. 4th DCA 2001)(Strasser II) (proper for judge to instruct jury on spoliation of evidence where duty to preserve existed); and Amlan, Inc. v. Detroit Diesel Corp., 651 So. 2d 701, 703 (Fla. 4th DCA 1995) (sanctions in case in which plaintiff’s discovery efforts were thwarted and it took judicially authorized access to defendant’s computer sources to determine discoverable information was easily accessible electronically).
Whether state court judges will just as readily sanction deserving lawyers and law firms for eDiscovery abuse remains to be seen. The recent federal court experience seems to portend that sanctioning lawyers will be necessary, given the number of lawyers and clients who seem to be giving in to temptation to hide, destroy, or just not cooperate in the eDiscovery context. One missing component that hopefully can be compensated for is lack of written precedent. The eDiscovery Bar should encourage state court judges to write discovery sanctions opinions and Lexis®, Westlaw®, and the eDiscovery Bar and blogs should publish them. While persuasive and not controlling, it would be helpful to cite decisions by other judges, state and federal when pursuing sanctionable conduct.
Interestingly, when I teach professionalism courses to Florida lawyers, lawyer participants advocate for tougher judicial sanctions in discovery, preferring that judges reign in errant behavior by opposing counsel. To lawyers, it is a problem when judges are reluctant to get tough. If you believe that, let judges know that when you write or participate in education and information exchange. My personal view is that a judge needs to set the tone of professionalism early on and consistently make the tough calls to keep the case moving and the lawyers and parties behaving. Early intervention (the first transgression) is an opportunity to set the tone. Fla. R. Civ. P. 1.380 provides the vehicle for sanctions. However, sanctions are not a panacea, as federal court experience seems to tell us. Read on.
Those who care about the future efficacy of state judicial systems when the tidal wave of eDiscovery hits should take a hard look at the federal system to see whether sanctions are the answer to increasingly excessive electronic discovery costs. Will state court judges be able to reign in the spiraling costs of discovery? My personal view is that lawyers and judges should be pragmatic about the long-term prospects for our judicial system and not let thetail wag the dog. Solutions for the future of discovery of ESI involve reining in cost for reasons other than avoiding sanctions. Florida common law supports the concept of discovery proportionality. See, e.g., Chrysler Corp. v. Miller, 450 So. 2d 330 (Fla. 4th DCA 1984). However, proportionality is not the only policy needed to stem the tide. There needs to be a shift by lawyers from getting everything that “may” be needed to economically searching for what is really required. Judges must stop enabling the insecure, lazy, big-net approach in favor of a planned, forward-thinking, efficient and economical approach.
There are many benefits to lawyers carefully studying and planning for refined discovery and investigation beyond the obvious attractiveness to clients. The approach sends a professional message to the opponent and the judge, making litigation less stressful and the lawyer more persuasive and effective on behalf of the client. Discovery requests beyond that needed for the case can actually help the opposing lawyer’s case by uncovering information beneficial to the other side’s theory of the case or may create claims or defenses that were not apparent before. A broad request may also lead to an equally broad request from the other side, which will be immunized from opposition because the request mirrors yours. Casting a broader net than is necessary or allowing excessive discovery from the opponent increases cost of privilege review and needlessly exposes client trade secrets or other confidential information to exposure.
The most common ill-effects of poorly planned and excessive discovery are two that I that witnessed over and over in my experience as a lawyer and a judge. It is harder to find the core facts with unnecessary surrounding clutter and easier to be distracted from a clean, crisp presentation of the case. Lawyers who do excessive discovery end up missing key facts or camouflaging them in trial or hearings with excessive and distracting information. “TMI” is bad. Giving a jury or other fact-finder more information than they need or can handle leads inevitably to either boredom or confusion and bad results. With so many advantages to narrowly-drawn discovery requests, it is hard to imagine why lawyers continue to ask for the moon. But they do.
Death-Knell for the Jury Trial?
Until all state and federal courts curb the spiraling, excessive emphasis on discovery, jury trials will become an even more endangered with extinction as a means of dispute resolution, which is not a good thing. Florida lawyers are troubled by the dearth of jury trials, as evidenced by the appointment of a special committee to study the problem. See Dearth of jury trials worries committee: Does the public view that in a negative way? Florida Bar News at p. 1(Oct. 15, 2010). Do they really need a committee to study this? We know the answer. We have met the enemy and the enemy is us. Clients settle cases because it is too damn expensive to go to trial. When the costs of discovery are excessive, the solution is to pare down discovery to what is needed. That’s the lawyer’s job, isn’t it? This prospect applies in spades when dealing with electronically stored information.
Ralph Losey and others have written about keeping the discovery system fair, efficient, and honest many times before. However, will the golden goose be dead before lawyers get the picture? Without answering that question, which could be depressing, just consider what happens if we do not practice efficiently and ethically when the electronic discovery tsunami collides with an already overburdened court system in Florida. Justice suffers, true enough. Anyone who settles for the wrong reasons is denied justice. Clients suffer by spending resources on something other than advancing their business or lives. If jury trials become an increasingly less viable option, then ADR becomes less effective. Arbitration will become as burdensome and expensive as jury trials. Mediation in jury trial cases works only when there is a real alternative of a jury trial. Effectively remove the option of going to trial before a jury of peers, then settlement may occur for the wrong reason and justice is denied. Remove jury trials and the public (as jurors) become disengaged from the system of justice.
I learned from some visiting Korean judges why our jury system is so important: until recently, there were no jury trials in Korea. Their citizens have an “us and them” view of the court system rather than participatory ownership. If the citizenry is not engaged in the system, it affects trust, respect for judges and lawyers, willingness to fund the system, etc. In my view, we do not want to go there.
What do you do when you are the defendant and you’re not there voluntary and you’re asked to produce information. Are you saying that rather than spending the money you ought to throw in the towel and just settle the case? Because I’m worried, and many people are worried, about the high cost of e-discovery allowing extortion to occur in a settlement.
S. Sheindlin and R. Losey, Electronic Discovery and Law School Curriculums, ESIBytes.
Judge Scheindlin’s question is valid, but not just for defendants. Achieving a settlement or concession in lieu of compliance with the burden of discovery is Bizarro-justice. Either party may potentially extort the other by the threat of expensive or intrusive electronic discovery. The issue is particularly acute if the judge is not attuned enough to electronic discovery to correctly assess the distinction between valid discovery needed for a party’s case versus an outright fishing expedition, or worse, a preemptive electronic discovery strike intended to coerce an undeserved outcome in the case. To succeed, counsel must have a good handle on electronic discovery from both a technical and legal perspective in order to educate the judge. Florida state court judges must master electronic discovery through judicial education and personal research in order to do justice on each side of the equation, which is a tremendous challenge.
You may think that I raised more problems than answers. However, I remain optimistic that Florida (and other) state court judges will address and conquer these problems. However, it will take education, commitment, courage, and decisiveness to do so. Keep that in mind if you have any involvement in nominating, electing, or recommending new or replacement judges in your jurisdiction. When I sat on my circuit’s Judicial Nominating Commission some twenty-five years ago, I favored judicial candidates with real life, practical experience in their background. Years later as a judge and educator, when I taught and worked alongside judges from varied backgrounds, public and private, I became less impressed about a judge’s pre-bench background and more focused on their intelligence, courage, and the quality of their character. Quality judges rise to the occasion, regardless of experience and background, but only if they are given an option to consider the right path as one of the choices.
When you get a chance like Ralph Losey and Bill Hamilton to teach judges in formal courses, by all means help out. But your real job and impact will be teaching judges every time you appear before them. By being prepared, decisive, efficient, and professional and by showing judges the right path in your case, every lawyer and every expert witness can build on the effectiveness of the judiciary, one judge and one hearing at a time. After all, you are the solution to the problems we face.
This entry was posted on Monday, November 15th, 2010 at 10:34 am and is filed under Lawyers Duties, New Rules, Spoliation/Sanctions.	You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.
I like the call for co-operation, communication and common sense. Thank you to Judge Artigliere for a very practical point of view.
Judge Artigliere is right on point. Also from a personal experience standpoint, The Honorable Judge Ralph Artigliere practices what he preaches. In my situation, Judge Artigliere recognized the truth, made the proper rulings on grounds and was not afraid to do what was right and just even though others in “the system” may not have done so. In my case he was the first to stand up and recognize the truth. I thank You Judge with all my heart, and soul, and might. You shall surely be blessed here and in heaven for being an honest Judge and man and doing what is right and just. I think of you often and can not thank you enough. God Bless You!, Jason R.
I enjoyed your two posts to the extreme. Your style is very concise and thought-through, and your suggestions make a lot of sense.
I am working on a computer system (expert system you might call it) that will embody yours and similar advice. I intend to use this system as a computer consultant to judges, lawyers, and GCs, helping them with the technical side of eDiscovery and alerting them to the consequences of their actions and to potential gotchas.
Could I occasionally ask your opinion on some questions related to it?
Sure, Mark. I know judges can use all the help they can get with eDiscovery issues. The biggest challenge for judges once they master eDiscovery principles is staying current with technical and legal issues, as the field seems to change before something we write is published. A system that stays updated and keeps judges and lawyers focused through “issue identification” (“gotchas” is a good way to put it)would be pretty nice. ER doctors have been using desktop systems like that for years for differential diagnosis.

matches: v. v. v. v. v. v.


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In order to deal with the increasing difficulties associated with gathering evidence, the European Commission has started to rely more and more on oral evidence to substantiate its cases, in particular with regard to the existence of cartels. This trend, combined with the current deficiencies of the European Commission’s enforcement procedure, may lead to a decrease in the quality of evidence relied upon in a case, thus affecting the parties’ rights of defence. In this context, certain changes in the European Commission’s enforcement procedure may be appropriate.
In order to establish competition law infringements, competition authorities have gradually adopted leniency programs, encouraging companies involved in a crime to provide evidence in exchange for full or partial exemption from fines.  As part of these programs, where there is no written evidence, business leaders are often called upon to provide the Commission with oral statements – without facing much risk of penalties for providing false statements. The probative value of these oral statements is determined by case law. In addition, following the adoption of Regulation No. 1/2003, the Commission may collect oral statements from any person who may have information relating to the alleged infringement, as long as the person consents.
In light of these developments, there are legitimate questions as to whether the burden of proof in Community law is converging with – or is at least informed by – the approach used in the United States, where the Department of Justice primarily relies on direct testimony and cross-examination to prosecute and punish cartels, while written evidence – once the almost exclusive source of proof – now occupies a secondary role.
These developments, combined with the sui generis character of proceedings before competition authorities – or at least the Commission and the French Competition Authority (the “Authority”) –, have enabled the latter to distance themselves to a certain extent from the requirements of criminal law, in particular those concerning the nature and the quality of evidence tending to demonstrate the existence of an infringement, and thus to justify the imposition of a fine. At the same time, companies sometimes have the impression that they are being confronted by competition authorities equipped with extensive investigatory tools and being found, sometimes based on evidence that is more than questionable, or at least questionable, to have violated the competition rules.
Almost a decade after the entry into force of Regulation No. 1/2003 and pending the outcome of the discussions initiated by Commissioner Almunia on adjustments to the administrative procedure of investigation and punishment of cartels, it seems important to show how the Commission’s decisions in cartel proceedings have, in recent years, reflected the increasingly important role of oral evidence (I) and to analyse the limitations of the current system, which will likely result in requiring a lower level of proof, as well as possible desirable developments (II).
If the enactment and more generally the rules and principles applicable to the evidence required in cartel proceedings (Article 101 TFEU and L. 420-1 of the Commercial Code) remain unchanged (1.), the Commission’s decisional practice will, due to the introduction of leniency programs, rely increasingly systematically on oral evidence (2.).
According to the European Court of Justice (the “ECJ”) “the principle that prevails … is that of the unfettered evaluation of evidence and that it is only the reliability of the evidence that is decisive when it comes to its evaluation.”  The system set forth in Community law therefore stands in contrast to the system of legal proof that confers on the legislature the task of assessing the relative value of evidence.
With regard to the probative value of evidence, the Community courts traditionally consider “the person from whom the document originates, the circumstances in which it came into being, the person to whom it was addressed, and whether, on its face, the document appears sound and reliable.”  and that, “[i]n assessing the evidential value of a reporting document, regard should be had first and foremost to the credibility of the account it contains.”  One consequence of the Community courts’ pragmatic approach is that a document of anonymous origin may be produced in cartel proceedings and can potentially be used as evidence to justify a finding of infringement.  It is also possible that the Commission or the Authority may decide to open an investigation based solely on a document of anonymous origin, since both regulators can open investigations on their own initiative.
The existence of such a standard of proof, however, does not exclude that the existence of an infringement may be inferred from a number of “coincidences and indicia which, taken together, may, in the absence of another plausible explanation, constitute evidence of an infringement of the competition rules.”  From a quantitative point of view, Community law does not limit the Commission from finding an infringement, even where the infringement is based only on a single piece of evidence. In such a case, the evidence, sometimes called a “smoking gun”  to the extent that it demonstrates all or part of the anti-competitive agreement and its participants, will not be in doubt and it will have to alone clearly demonstrate the existence of the offense.  The corresponding probative value of the evidence depends, of course, on the facts of the case and the characteristics of the evidence.
The Community courts also rely on hearsay evidence. This particular issue of hearsay evidence was debated in the recent case of Toshiba,  in which the applicant contended that evidence used by the Commission to demonstrate the existence of collusion should be dismissed because it originated from a person who had not personally attended the meeting at which the collusion allegedly occurred. The General Court, after noting that this person had confirmed during his testimony he was not present at the conclusion of the joint arrangement,  for its part observed that “a witness is able to furnish evidence of a long-standing phenomenon even if he was not present at its inception”  and that, therefore, this testimony was an indication of the existence of common understanding.  This approach may be problematic in terms of rights of defence.
Moreover, it should be noted that due to difficulties encountered by the Commission in gathering evidence sufficient to prove of the existence a cartel, the Community courts admit that the weight of evidence is based more on its overall consistency than on the value of each individual item of evidence.  The Community courts consider that “it is not necessary for every item of evidence produced by the Commission to satisfy those criteria in relation to every aspect of the infringement. It is sufficient if the body of evidence relied on by the institution, viewed as a whole, meets that requirement.”  By conducting a comprehensive analysis of the evidence, the competition authority is not obliged to interpret each piece of evidence, which can be sometimes unclear or even contradictory.
The Commission has extensive powers to search for evidence of an infringement, allowing it to collect documentary evidence demonstrating violations of competition law. The renewal of the Commission’s powers under the Regulation No. 1/2003, and in particular the Commission’s power to take oral statements (a) and the success of its leniency program (b) seem to support the principle, established in case law, that testimony has only a marginal role in terms of providing evidence of cartels (c). On the contrary, these methods of investigation appear to be heavily loaded with testimonial evidence.
b) The Commission’s power to collect oral statements The objective for the adoption of Regulation No. 1/2003 was to improve the Commission’s investigative powers. Following its adoption, the Commission now has two new methods of investigation: (i) it may inspect premises other than those of the company in question (Article 21) and (ii) it may collect oral statements (Article 19).  Under Article 19, the Commission may collect statements from the representatives or employees of the company inspected, or any person or entity through their representative.  The Commission may also collect oral statements from leniency applicants and from complainants.  To the extent that Article 19(2) states that, “Where an interview pursuant to paragraph 1 is made on the premises of an undertaking”, we believe that this interview may also take place outside the context of a “dawn raid” and instead take place at the Commission’s premises. This provision was harshly criticised by companies and practitioners during the public consultation concerning draft Regulation No. 1/2003, and the final Regulation was accordingly amended on this point.  While the draft Regulation would have given the Commission power to interview anyone with useful information, resembling the power available to the US antitrust authorities, the final Regulation is more limited, with Article 19(1) expressly providing that the Commission may only interview those persons “who consent”. Similarly, while the draft Regulation envisaged that interviews would take place in the Commission’s premises, the final Regulation is silent as to the location of the interview. Interviews conducted under Article 19 of Regulation No 1/2003 must be recorded “by any means.”  A copy of the recording must be returned to the person interviewed who will have the opportunity to make corrections within a period of at least two weeks.  Regulation No. 773/2004, on the conduct of proceedings by the Commission pursuant to Articles [101 and 102 TFEU] (“Regulation No. 773/2004”), Article 3(3) states that “[t]he Commission may record the statements made by the persons interviewed in any form.” Note, however, that although neither Regulation No. 1/2003 nor its implementing Regulation, Regulation No 773/2004, obliges the Commission to memorialise the statements of persons interviewed, in practice the Commission does so, and the person interviewed must sign the record. In contrast to what is provided for responses to requests for information, Regulation No. 1/2003 does not impose any penalty for providing false or misleading information in a voluntary oral statement. Some commentators have also stressed that the power to take statements should be distinguished from the Commission’s power to ask “for explanations on facts or documents relating to the subject-matter and purpose of the inspection” under Regulation No. 1/2003, Article 20(2)(e), which must be interpreted restrictively. Indeed, a broad interpretation of this provision would allow the Commission to ask any question related to the object and purpose of the inspection, and thus to circumvent the requirements and guarantees provided in connection with requests for information (Article 18) and hearings (Article 19). In order to respect the rights of the defence, it seems preferable that the Commission use a reasonable approach and seek clarification since the person questioned, who is not entitled to the protections afforded under Articles 18 and 19, will not benefit from a delay in developing his or her response and cannot refuse to be interviewed.  In a complaint filed by Intel, the European Ombudsman acknowledged that the Community courts have, to date, not commented on the regime of declarations made under section 19,  and that pursuant to the interpretation of this article,  the Commission had discretion to take statements. However, the Ombudsman also considered that when the Commission conducts interviews to gather information related to a pending case, these discussions must necessarily be listed as interviews under section 19 , so that the guarantees under that section are met. It is also envisaged that the Hearing Officer could be called upon to decide on the applications by Commission officials concerning the powers conveyed on them by Regulation No. 1/2003, in particular with regard to the power of taking statements.
One of the major shortcomings of the current procedures in cartel cases is that the parties are unable to interview the people who made statements, especially the employees of other companies, whose declarations influence the Commission’s infringement decisions. This seems to be inconsistent with Article 6(3) of the European Convention on Human Rights (“ECHR”) which states that every accused person has the right “to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.” Therefore, the European Union’s future compliance with the ECHR may require a development on this particular point.
Recognizing the shortcomings of the current situation, the Commission recently published a document entitled “Guidance on procedures of the Hearing Officers,” the objective of which is to facilitate resolution of disputes concerning.  The recent appointment of Wouter P.J. Wils to the position of Hearing Officer may, too, allow for some improvement in the situation and in particular to enable the oral hearing to take on greater importance in resolving disputes.  More broadly, Commissioner Almunia launched a major reform of antitrust procedures.  This initiative may include the question of proof in cartels.
While the hearing provides the recipient of the statement of objections the opportunity to present his defence in a more spontaneous manner, the Commission does not have to respond to the defendant’s arguments and the defendant does not have the right to examine or cross-examine the Commission, or any third party from which the Commission obtained evidence. Thus, although the Hearing Officer can, at the end of the hearing, ask questions, he rarely does. Recent complaints to the European Ombudsman in competition cases, including in the Intel case, also suggest a growing concern of the parties about the development of adversarial administrative procedure leading to the adoption of a penalty, and in particular concerning the hearing. To strengthen the adversarial nature of proceedings, the Commission would need to reform the purpose and procedural rules of the hearing and, more broadly, the investigative phase of proceeding (including the content of the file). On this point, it seems essential that the companies under investigation have (i) the possibility to cross-examine the representative of the immunity applicant and the various individuals who made the statements (“corporate statements”) in support of the immunity application and (ii) access to the Commission’s file in as complete a form as is possible, to enable them to formulate a defence strategy.
The Community courts have found that company statements, especially statements submitted in support of a leniency application, are merely clues that, if challenged, should be corroborated by other evidence.  Faced with the difficulty of collecting evidence and resource austerity, the Commission may, however, be tempted to rely largely or almost exclusively on the statements of complainants, leniency applicants or other parties involved.
In the Vitamins case, the Commission became aware of the risk contained in statements of the parties to the proceedings, noting that the latter must “be treated with some caution, particularly if they seek to put a gloss on the events related which is favourable to themselves, for example by diminishing their role in the violation.”  Conversely, in the Cartonboard case, the Commission considered that the fact that the statements of the company Stora went against its own interests which made them very credible.  The General Court considered, pragmatically, that “statements made in the context of the leniency policy play an important role. Those statements made on behalf of undertakings have a probative value that is not insignificant, since they entail considerable legal and economic risks.”  The judgment of JFE Engineering, provides an analytical framework for determining the probative value of statements, which depends on whether (i) the statements were made by a representative of a company or individual, (ii) the declarant was required to act in the interests of the company, (iii) the declarant was a direct witness to the anticompetitive facts, (iv) the statement was made deliberately and after careful consideration, (v) the declarant confirms his statements throughout the investigation process, and (vi) the statement is against the interests of the declarant or his company. The General Court also observed that “an admission by one undertaking accused of having participated in a cartel, the accuracy of which is contested by several other undertakings similarly accused, cannot be regarded as constituting adequate proof of an infringement committed by the latter unless it is supported by other evidence.”  Thus, in case T-384/06 (corporate IBP and International Building Products France against the decision of the Commission in Raccords), the General Court considered that in the absence of such additional evidence, evidence of the allegedly anticompetitive business contacts of IBP group and the association that managed the cartel’s communications were deemed insufficient. Proof of the content of telephone conversations could not be established and therefore this evidence could not prove an anticompetitive purpose.  The risk of false statements or approximations are, in our opinion, reinforced by the absence of any statutory provision designed to ensure the reliability of evidence. In particular, complainants are not subject to any penalty - other than the dismissal of their complaint - in respect of the evidence they voluntarily submit to the Commission. With regard to leniency applicants, the General Courts stated that a declarant who attempted to hide all or part of the offense would run a serious risk “of having helped the Commission to established that he committed an infringement, but without being granted any substantial reduction of his fine for having cooperated.”  In addition, although the company that is subject to a complaint can challenge the complainant’s statement in his own statements or in its response to the statement of objections, there is no means by which the targeted company can subject a complainant or a leniency applicant to cross-examination.  The possibility of orally challenging a complainant or statement of objections is actually limited to one hearing, which does not seem satisfactory since, at this stage of the proceedings, the statement of objections has already been formulated and notified to the implicated parties.
According to a member of the Legal Service of the Commission, the question concerning whether the fact that third parties to proceedings (not subject to inspection) do not risk of penalties for their statements may encourage them to provide inaccurate information, remains open.  In the event that the statements were obtained under Article 19 of Regulation No. 1/2003, it is permissible to consider the possibility that criminal sanctions be imposed by a national court in the event of giving a false testimony. Within the European Competition Network, when officials of a national competition authority assist Commission officials in connection with an inspection, they do so at the request of the competition authority of the Member State concerned. In these circumstances it is reasonable to think that the national law of the Member State, particularly concerning penalties for providing false testimony and statements, may apply. Regarding the possibility of the Commission directly imposing sanctions on leniency applicants, complainants or third parties for submitting false statements, the European Union’s lack of competence in criminal matters excludes a priori the possibility of penalising individuals who provide false statements. It seems quite possible that the companies on whose behalf such statements could be subject to a fine for providing incorrect or misleading information. However, such a possibility would require an amendment to Article 23 of Regulation No. 1/2003 because in its the current form, it only provides for penalties in cases where someone provides incorrect or misleading information in response to a request for information, or during an inspection.
If the Community courts have powers of investigation and inquiry - including the important opportunity of holding hearings, we note with regret that it rarely utilises its investigative instruments. In doing so, the Community courts therefore generally rely on pleadings, which are mainly comprised of a motion to quash, responses and the Commission’s records. The Rules of Procedure provide, however, that "[i]n reply or rejoinder a party may offer further evidence” subject to providing reasons “for the delay in offering it.”  With more particular regard to the power to conduct evidentiary hearings or summon expert testimony,  the analysis of Community case law demonstrates that it is up to the judge to interpret the conditions under which that power may be exercised. Thus in the Baustahlgewebe case,  the General Court dismissed the applicant’s belated request for the examination of a witnesses, which was presented in its reply. The ECJ affirmed the General Court’s decision  and said that even when an application for hearing of witnesses is made in the application, indicting precisely the facts on which it is appropriate to hear the witness or witnesses and the natural reasons justifying their testimony, it is for the court to ultimately assess the relevance of such a request in relation to the subject matter and the need to proceed with hearing the witness testimony.  In Dansk Rørindustri, the ECJ once again endorsed the General Court’s refusal to conduct a hearing on the grounds that “the request that the six persons concerned be examined did not indicate precisely the facts in respect of which those persons should be heard as witnesses.”  Finally, in the Clearstream decision, the Court found that it could “rule on the basis of the pleas in law and the arguments presented in the course of both the written and oral procedure” without having to grant the request for a hearing of a witness presented by the applicants.  Cases in which the Community courts have taken the opportunity to hear witnesses are, to our knowledge, ultimately limited in number.  Besides the examination of witnesses, there have been instances where the Community courts ordered other types of investigations. Thus, in the series of decisions concerning the production of beams, the ECJ took instructive measures in relation to requests for document production and the transmission of written questions to the parties.  The Community courts may also use expert reports. This was indeed the case in Wood Pulp where the Court made use of two expert reports to determine whether the Commission’s analysis as to the explanation of parallel conduct (resulting, according to the Commission, in collusion among producers of wood pulp) was correct.  These expert reports allowed the Court to conclude that “the normal operation of the market [was] a more plausible explanation for the uniformity of prices than concertation” and thus annul the Commission’s decision. It appears that the Community courts very rarely agree to undertake such investigations.
3.2. Desirable changes towards strengthening of judicial review Strengthening the Community courts’ judicial review of the Commission’s analysis and the evidence on which it relies seems to be both necessary and possible in our view. This may be done via a more systematic use of investigative measures expressly provided for in the existing procedural rules (e.g., expert reports, witness statements).
The current situation is not entirely satisfactory, and the Commission could take advantage of its current reflections on procedures used in competition law cases to make certain amendments so as to strengthen the quality of evidence used in the procedures of cartels. In particular to ensure a more systematic use of testimonial evidence that is consistent with rights of defence of the companies under investigation. This would ensure a balance between the Commission’s mission and powers in respect of public enforcement and the rights of businesses prosecuted, to prevent “hunting cartels” from becoming more like “witch hunts.”  It seems in this context that the recommendations suggested in this article could help achieve this goal, or at least go some way towards attaining this objective.
 This article will not discuss the reversal of the burden of proof under Article 101(3) TFEU, by which certain practices can be justified by economic efficiencies, or the burden of proof in merger control proceedings.
 Council Regulation 1/2003 of 16 December 2002 on the implementation of rules on competition laid down in Articles 81 and 82 of the Treaty (EC) (hereafter “Regulation No. 1/2003”), Recital, para. 25. On this point, see also the conclusions presented on September 12, 2006 by Advocate General ML A. Geelhoed in Case C-411/04 Salzgitter Mannesmann GmbH v. Commission, para. 52: The production of evidence in competition cases is characterised by special problems, which were recently summarised again by the Court of Justice in the Aalborg-Portland judgment: •	it is normal for activities connected with anti-competitive practices and agreements to take place in a clandestine fashion, for meetings to be held in secret, most frequently in a non-member country, and for the associated documentation to be reduced to a minimum; •	even the few documents evidencing unlawful contact between traders will normally be only fragmentary and sparse; •	in most cases, the existence of an anti-competitive practice or agreement must be inferred from a number of coincidences and indicia which, taken together, may, in the absence of another plausible explanation, constitute evidence of an infringement of the competition rules.
 Nathalie Jalabert-Doury, Oral statements in antitrust law procedure, CONCURRENCES No. 2-2005, §3, p. 41.
 Case C-185/95P Baustahlgewebe v. Commission, 1998, E.C.R. I-5417, para. 58; Case C-49/92P Commission v. Anic, 1999, E.C.R. I-4125, para. 86. See also Regulation No. 1/2003, Article 2: “In any national or Community proceedings for the application of Articles 81 and 82 of the Treaty, the burden of proving an infringement of Article 81(1) or of Article 82 of the Treaty shall rest on the party or the authority alleging the infringement….” This principle is also stated in Recital 5 of Regulation No. 1/2003.
 Case T-67/00 JFE Engineering v. Commission, 2004, E.C.R. II-2501, para. 173 (citations omitted).
 Autorité, etude thématique du rapport annuel 2006 [Authority, Annual Report 2006, Thematic Study], La prevue des accords de volontés constitutifs d’entente, p.78.
 Case C-235/92 Montecatini v. Commission, 1999, E.C.R. I-4539, para. 176; Case T-279/02 Degussa v. Commission, 2006, E.C.R. II-897 para. 115; Case T-113/07 Toshiba v. Commission 2011, 5 C.M.L.R. 20, at para. 79. The principle of the presumption of innocence is also guaranteed by Article 48(1) of the Charter of Fundamental Rights of the European Union.
 According to the Commission, nearly 75% of cartel cases handled by it are the result of a leniency application. See Commission Report on Competition Policy 2009, para. 100.
 Jalabert-Doury, supra note 3, p. 43, para. 3.
 Regulation No. 1/2003, Recital 5. On this point see also Laurence Idot, Droit communautaire de la concurrence – Le nouveau système communautaire de mise en œurve des articles 81 et 82 EC, BRUYLANT, (2004) p. 20, para. 22, footnote on page 74.
 Rapport de M. Bargue, conseiller rapporteur, Cour de cassation [Cass.] [Report of M. Bargue, Rapporteur, in the supreme court for judicial matters], Philips France, Sony France, Références aux arrêt CEDH July 12,1988 Schenk c / Switzerland, Series A, No. 140, March 25, 1999, Pelissier and Sassi c / France.
 Jalabert-Doury, supra note 3, at p. 43, para. 16.
 Case T-1/89 Rhone-Poulenc v. Commission (Opinion of Advocate General Vesterdorf of 10 Jul.1991) (“Considerable importance must be attached to the fact that competition cases of this kind [cartels] are in reality of a penal nature, which naturally suggests that a high standard of proof is required”).
 Case C-411/04 Salzgitter Mannesmann GmbH v. Commission, 2007, 4 C.M.L.R. 682, para. 45.
 Case T-1/89 Rhone-Poulenc v. Commission (Opinion of Advocate General Vesterdorf of 10 July 1991); Case T-25/95 etc. Cimenteries CBR Cement SA v. Commission, 2000, E.C.R. II-491, para.1053; Case T-3/89, Atochem v. Commission, 1991, E.C.R. II-1177, paras. 31-38; Case T-157/94, Empresa Nacional Siderúrgica (Ensidesa), 1999, E.C.R. II-707, para. 312.
 Case C-407/04 P, Dalmine v. Commission, 2007, para. 63.
 Cour de cassation [supreme court for judicial matters] decision no. 587 of Jan. 7, 2011 pourvois n° 09-14.316 et 09-14.667, Philips France et Sony France c. Ministre de l’Économie.
 Case IV/33.384 Nederlandse Vereniging voor de Federatieve Groothandel op Elektrotechnische gebied und Technische Unie (26 October 1999), para. 32.
 Anne-Lise Sibony, Eric Barbier de La Serre, Charge de la preuve et théorie du contrôle en droit communautaire de la concurrence: pour un changement de perspective, RTDE, Apr.-Jun, 2007, para. 28, p. 226.
 Id., para. 29, p. 227.
 Case C-12/03P, Commission v. Tetra Laval, 2005, E.C.R. I-897, paras. 37, 41 & 61; Joined Cases C-403 & 405/04 P Sumitomo Metal Industries v. Commission, 2007, 4 C.M.L.R 650; Case C-413/06 P Bertelsmann AG and Sony v. Impala, 2008, E.C.R. I-4951; Case C-501/06 P etc. GlaxoSmithKline Services v. Commission, 2009.
 See especially Case C-49/92P Commission v. Anic, 1999, E.C.R. I-4125.
 Among a significant body of literature see especially the Authority’s Thematic Study, Objet, effet et intention anticoncurrentiels in its Rapport Annuel 2003 [Annual Report], at pp. 55-78. See also Laurence Idot Notion of Anticompetitive Object/Effect…, CONCURRENCES No.4-2009, pp. 1-2.
 James S. Venit, Human All Too Human: The Gathering and assessment of evidence and the Appropriate Standard of Proof and Judicial Review in Commission Proceedings Applying Articles 81 and 82, p. 61, available at http://www.eui.eu/Documents/RSCAS/R.... reprinted in EUROPEAN COMPETITION LAW ANNUAL 2009: EVALUATION OF EVIDENCE AND JUDICIAL REVIEW IN COMPETITION CASES (Claus-Dieter Ehlermann & Mel Marquis (eds.)) (2010).
 Case T-38/02 Groupe Danone v. Commission, 2005, E.C.R. II-4407, para. 217; Case T-62/98 Volkswagen AG v. Commission, 2000, E.C.R. II-2707, paras. 43 and 72.
 Joined Cases 29 and 30/83 CRAM & Rheinzink GmbH v. Commission,1984, E.C.R.1679, para. 19.
 Case T-53/03 BPB plc. v. Commission, 2008, E.C.R. II-1333, para. 63.
 OECD, Policy Roundtable: Prosecuting Cartels Without Direct Evidence, supra note 32, at p. 114.
 Case T-25/95 etc. Cimenteries CBR Cement SA v. Commission, 2000, E.C.R. II-491, para. 1838.
 In this regard, it is worth reiterating that the only Commission decision finding an infringement based solely on circumstantial evidence (i.e., economic evidence) was annulled by the European Court of Justice. Case C-89/95 Ahlström Osakeyhtiö e.a v. Commission (Wood Pulp),1993, E.C.R I-1037. On this point, see also OECD, Policy Roundtable: Prosecuting Cartels Without Direct Evidence, supra note 32, at p. 116 & p. 30 (footnote).
 Marie-Chantal Boutard Labarde & Guy Canivet (et al) L’application en France du droit des pratiques anticoncurrentielles, LGDJ, 2008, p. 86 para. 82.
 Valerie Fauré, ibid., § 579, p. 378.
 Case 48/69 ICI v. Commission, 1972, E.C.R. 619, paras. 64-68; Joined Cases 29 and 30/83 CRAM & Rheinzink GmbH v. Commission,1984, E.C.R.1679, paras. 16-20, Case C-89/95 Ahlström Osakeyhtiö e.a v. Commission (Wood Pulp),1993, ECR I-1037, para. ,71.
 Case C-89/95 Ahlström Osakeyhtiö e.a v. Commission (Wood Pulp),1993, ECR I-1037, para. ,31: By order of 25 November 1988 the Court decided to obtain an expert’ s report on parallelism of prices. The experts charged with drawing it up were appointed by order of 16 March 1989. They were asked whether the documents used by the Commission in drawing up Tables 6 and 7 annexed to the decision justified the conclusion as to parallelism of announced prices and transaction prices.
 OECD, Policy Roundtable: Prosecuting Cartels Without Direct Evidence, supra note 32, at 120 (contribution of France).
 Case T-113/07 Toshiba v. Commission, 2011, 5 C.M.L.R. 20.
 Marie-Chantal Boutard Labarde & Guy Canivet, supra note 41 at 87, § 83.
 Case T-67/00 JFE Engineering v. Commission, 2004, E.C.R. II-2501, para.180.
 Jalabert-Doury, supra note 3, at §1 p. 41.
 Case C-411/04 Salzgitter Mannesmann GmbH v. Commission, 2007, 4 C.M.L.R. 682, at para. 42.
 Case C-411/04 Salzgitter Mannesmann GmbH v. Commission (Opinion of Advocate General Geelhoed, 12 Sept. 2006), para. 55.
 The rules applicable to the Commission’s power to take statements are set forth in Commission Regulation 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 and 82 of the Treaty (EC) (hereafter “Regulation No. 773/2004”).
 Regulation No. 1/2003, Article 19: Power to take statements 1. In order to carry out the duties assigned to it by this Regulation, the Commission may interview any natural or legal person who consents to be interviewed for the purpose of collecting information relating to the subject-matter of an investigation. 2. Where an interview pursuant to paragraph 1 is conducted in the premises of an undertaking, the Commission shall inform the competition authority of the Member State in whose territory the interview takes place. If so requested by the competition authority of that Member State, its officials may assist the officials and other accompanying persons authorised by the Commission to conduct the interview.
 In its contribution, the International Chamber of Commerce noted that it would be desirable for the Commission to inform individuals sought to be interviewed of their rights, including the right not to respond. The lack of clarity and rules governing the Commission’s power to take statements was also mentioned in other contributions. Some respondents suggested that individuals the Commission seeks to interview should be assisted by a lawyer and should be informed of the legal basis and purpose of the interview. The Permanent Representation of France to the European Union, meanwhile, suggested that the copy of the statement recording the interview not only be made available to the person interviewed, but actively provided to him. On this point see also Idot, supra note 29, p. 99 para. 207.
 Id., Art. 17(3) (“The time-limits referred to in Article 3(3)… shall be at least two weeks.”).
 MARIO SIRAGUSA & CESARE RIZZA, EU COMPETITION LAW: CARTELS AND HORIZONTAL AGREEMENTS AND PRACTICES BETWEEN COMPETITORS , p. 176, para. 2.161 (2007).
 Case 1935/2008/FOR (Intel), Decision of the European Ombudsman of 14 Jul. 2009, para. 90.
 Commission Notice on Immunity from fines and reduction of fines in Cartel Cases, OJ 2006 C298/17 (hereafter “Leniency Notice”), para. 25.
 Commission Guidance on Procedures of the Hearing Officers in Proceedings Relating to Articles 101 and 102 TFEU (ex- articles 81 and 82 EC), para. 38.
 Wouter P .J. Wils, The Combination of the Investigative and Prosecutorial Function and the Adjudicative Function in EC Antitrust Enforcement: A Legal and Economic Analysis, WORLD COMPETITION: LAW AND ECONOMICS REVIEW Vol. 27 No. 2 (2004), pp. 202-224 available at http://papers.ssrn.com/sol3/papers...., pp. 15-19 See also Venit, supra note 30, at pp. 11-13.
 Wils, supra note 77 at 216.
 Venit, supra note 30, p. 12 & 28 (footnote).
 Bruno Lasserre, The new Competition Authority, CONCURRENCES N ° 1-2009, p. 2.
 Regulation No. 773/2004, Article 10(3).
 Case 103/80 Musique French Diffusion v. Commission (Opinion of Advocate General Sir Gordon Slynn, 8 Feb. 1983), p.17.
 SIRAGUSA & RIZZA, supra note 65, p.221 para. 2.263.. See especially COMP/38.240 Industrial Copper Tubes 16 Dec. 2003, para. 74; COMP/37.857 Organic Peroxide, 10 Dec. 2003, para. 78  5 C.M.L.R. 579; COMP/37.370 Sorbates, 2 Oct. 2003, para. 21 5 C.M.L.R. 2054; COMP/37.519 Methionine, 2 July 2002, para. 59,  C.M.L.R.1062; COMP/38.281 Italian Raw Tobacco, 20 Oct. 2005, para. 25,  4 C.M.L.R. 1766.
 SIRAGUSA & RIZZA, supra note 65, p.222 para. 2.263.
 Joined Cases 43 & 63/82, VBVB and VBBB v. Commission, 1984, E.C.R. 19, para. 18; Case T-9/99R HFB Holding v. Commission, 2002, E.C.R. II-1487 , para.383.
 Case 9/83 Eisen und Metall Aktiengesellschaft v. Commission, 1984, E.C.R. 2071, para. 32; Case T-9/99R HFB Holding v. Commission, 2002, E.C.R. II-1487 , para.383.
 Regulation No. 773/2004, Art. 14(7).
 SIRAGUSA & RIZZA, supra note 65, p. 230, para. 2.285.
 Regulation No. 1/2003, Art. 27(2); Regulation No. 773/2004, Art. 15(2); Commission Notice on the rules for access to the Commission file in cases pursuant to Articles 81 and 82 of the EC Treaty, Articles 53, 54 and 57 of the EEA Agreement and Council Regulation (EC) No 139/2004 (2005) (hereafter “Commission Notice on Access to the File”), para. 10.
 Jalabert-Doury, supra note 3, at p.45, para. 31.
 Venit, supra note 30, at p.24.
 COMP/31.906 Flat Glass , 7 Dec. 1988, p. 44, 1990, 4 C.M.L.R. 535.
 Case T-68/89 etc. Società Italiana Vetro SpA, Fabbrica Pisana SpA and PPG Vernante Pennitalia SpA v. Commission, 1992, E.C.R. II-1403.
 Commission Notice on Access to the File, supra note 93, Recital 13.
 Case T-191/98 Atlantic Container Line v. Commission (TACA), 2003, E.C.R. II-3275, para. 351.
 Venit, supra note 30, p.26.
 Case T-67/00 JFE Engineering v. Commission, 2004, para. 219, E.C.R. II-2501.
 COMP/37.512 Vitamins, 21 Nov. 2001, para. 538, 2003, 4 C.M.L.R. 1030.
 COMP/33.833 Cartonboard, 13 Jul. 1994, para. 111, 1994, 5 C.M.L.R. 547.
 Case T-384/06, IBP Ltd. and International Building Products France v. Commission, 2011, para. 69. For a review of that decision, see especially Pascal Cardonnel, Procedural rights: The European Commission adopts three texts to strengthen the procedural rights of the parties, CONCURRENCES, N° 4-2011, p. 185 at 186.
 Case T-67/00 JFE Engineering v. Commission, 2004, E.C.R. II-2501, para. 219. For a recent restatement of this principle, see especially Case T-384/06, IBP Ltd. and International Building Products France v. Commission, 2011, para. 69.
 Case T-384/06, IBP Ltd. and International Building Products France v. Commission, 2011, para. 69.
 Case T-67/00 JFE Engineering v. Commission, 2004, E.C.R. II-2501, para. 214.
 Jalabert-Doury, supra note 3, p.44, para. 26.
 Venit, supra note 30, at p.39.
 Regulation No. 1/2003, Arts. 17, 18 & 20.
 Jalabert-Doury, supra note 3, at p. 44, para. 26.
 Id. at p. 44, para. 26.
 Leniency Notice para. 12(a)(4) & 30(2).
 Eric Gippini-Fournier, The Modernisation of European Competition Law: First Experiences with Regulation 1/2003, supra note 61, at p.58.
 Case C-272/09 KME Germany v. Commission (Opinion of Advocate General Sharpston 10 Feb. 2011), para. 69.
 Case C-291/98P Sarrió v. Commission (Opinion of Advocate General Mischo of 18 May 2000), para. 38.
 Venit, supra note 30, at pp.63-64.
 Fauré, supra note 43, p. 383 para. 587.
 Rules of Procedure of the General Court (2 July 2010) Art. 48(1).
 Case T-145/89, Baustahlgewebe GmbH v. Commission, 1995, E.C.R. II-867.
 Case C-185/95 P Baustahlgewebe GmbH v. Commission, 1998, E.C.R. I-8417, para. 70.
 [[Case C-189/02 P Dansk Rørindustri ea v. Commission , E.C.R. I-5425, para. 60.
 Case T-301/04 Clearstream Banking and Clearstream International SA v. Commission, 2009,  C.M.L.R. 2677, para. 217.
 Joined Cases C-100 to 103/80, SA Musique Diffusion French ea v. Commission, 1983, E.C.R. 1825, para. 50; Case C-199/99 P, Corus UK Ltd v. Commission, 2003, para. 32.
 Fauré, supra note 43 at 426, para. 624.

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December 20, 2010 June 5, 2015 / Julie Brook, Esq.
Many attorneys, from business transactional specialists to family lawyers, are asked by their individual clients, “Should I file for bankruptcy?” This is not an easy question to answer, and is best responded to after analyzing many facts and issues. In fact, to answer it well, you’ll need to ask some questions of your own to determine the appropriateness of bankruptcy and the type of bankruptcy case to file.
Why is your client considering bankruptcy? Make sure it is for a valid, good faith reason and is for a problem that cannot be solved by alternative means, such as negotiation. If it is to prevent a foreclosure or other creditor action, determine whether the automatic stay (11 USC §362) will apply.
Obtain a complete schedule of all assets and analyze. Check for assets in other jurisdictions or an asset in which your client has a remote or contingent interest. Also, find out if your client may possibly acquire any property by inheritance, insurance, or marital settlement in the next 6 months (11 USC §541(a)(5)). Make sure to value assets at fair market value and to ascertain the status of liens and encumbrances against each asset to calculate equity.
Obtain a schedule of all liabilities and analyze. Make sure that all debts are listed and analyze debts for dischargeability issues and advise your client on nondischargeability. Determine whether the amount of debt and the number of creditors justifies bankruptcy. Apply the “means test” to determine whether the debtor is even eligible for Chapter 7 bankruptcy.
Analyze your client’s income and expenses to ascertain whether there may be substantial disposable income, prompting 11 USC §707(b) objection from the United States Trustee, which will trigger means test issues.
Analyze the impact on third parties, e.g., guarantors or preference recipients. Parties who have guaranteed (or cosigned) your client’s debts will not be protected by the automatic stay and will be pursued by the creditor holding the guaranty in cases other than Chapter 13. Identify creditors to whom your client has made payments on account of antecedent debts, because the trustee may avoid payments under 11 USC §547(b) as preferences. Identify anyone who has received gifts or transfers without consideration, such as family members, because such transfers may be avoided by the trustee as fraudulent transfers. See 11 USC §§544(b)(1), 548; CC §3439.09.
Consider whether reorganization or liquidation is appropriate.
Discuss issues of your client’s spouse joining in the petition. Analyze whether the spouse is personally liable for any of the debt, or whether the spouse owns substantial separate property. Be aware of issues respecting separate and community property and determine if your client has any rights in the spouse’s retirement benefits.
Determine an appropriate fee based on the complexity of anticipated issues and be sure to document what is covered by the fee.
Consider any personal obstacles to bankruptcy or the attorney/client relationship, e.g., is your client candid and likely to cooperate, or are there likely to be issues of fraud, nondisclosure, or dishonesty?
Have you performed all tasks related to the bankruptcy filing with due diligence? It is extremely important that you be able to do so, as you will have to certify all information provided in any bankruptcy filing as being accurate. See 11 USC §707(b)(4)(C), (D).
For more helpful bankruptcy considerations, go to Debt Collection Practice in California, chap 12. For a detailed discussion of creditor collection issues, including bankruptcy, turn to CEB’s California Estate Planning, chap 26. All of CEB’s bankruptcy resources are listed and described here.