Discovery in a Robinson-Patman Action
Discovery in a Robinson-Patman Act, as in most civil actions, is limited to the following discovery methods:
- Depositions of parties and non-party witnesses
- Documents to be produced by document request to a party or by subpoena duces tecum of a non-party
- Requests to admit the truth or falsity of a list of statements which the party serving the requests believes the other side will readily admit; if the party receiving the request to admit fails to respond within the appropriate time period, the reques
ts are deemed to have been admitted for purposes of the litigation
- Interrogatories, which are written questions to be answered under oath, in which the person receiving the interrogatories has to compile and provide the requested information. This is the most burdensome form of discovery, and many courts place restrictions on the number of interrogatories which may be served, including the number of subdivisions which an interrogatory can contain. Interrogatories are generally the most burdensome and costly part of a lawsuit, but increasingly less so with the new ru
les which restrict their use to some extent.
- A seldom used discovery rule permits a non-witness to be deposed at a distance through the answering of a series of written questions (called interrogatories) under oath before a court reporter; the attorneys do not have to be present; and the other parties can serve their own questions; the advantage is to be able to obtain a specific piece of testimony at low cost without having to travel hundreds or thousands of miles, but the major disadvantage is that the witness knows what the questions are befo
re they are asked (because the witness sees the written questions as soon as they are served), and can prepare non-spontaneous answers; also, the parties are unable to ask questions based upon the specific response of the witness. With everything taken into consideration, the disadvantages outweigh the advantages and the discovery rule is almost never used.
The foregoing list of discovery techniques will then be used to obtain evidence of the existence of price discrimination, as well as discrimination in the various advertising and other promotional programs of the defendant; the dollar amount per unit of the discrimination; evidence about any claimed defenses (such as alleged cost justification or alleged bona fide meeting of competition); data processing records to prove the volume of sales and the amount of discrimination.
Discovery will attempt to review all of the advertising allowance, slotting allowance, and other promotional programs of the defendants, to show that such programs are making excessive payments to the favored customers, so that the excess is actually an unlawful price rebate, and that the programs themselves are not made functionally or proportionally available to the plaintiff, as the disfavored purchaser. Depositions are generally very effective in getting to the bottom line of the defendant's policy.
It should only take 3-4 depositions to get the defendant's discriminatory policies.
Once the discovery is over, the parties put the evidence together and can be expected to make various motions. The defendant will generally make a motion for summary judgment requesting the Court to throw out the whole case for alleged lack of evidence; and the plaintiff (less frequently) will move for partial summary judgment to establish that the defendant does in fact unlawfully discriminate in price or service and that all that remains is to prove the amount of the damages and the lack of any meritor
ious defense.
After the court resolved these motions, the case will either be dismissed or go to trial.
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Copyright © 1997 by Carl E. Person