Collusion Course: The Limits Of Hot Documents

Discovery in antitrust cases often involves a search for smoking-gun documents. Those documents can consist of emails proving that competitors conspired to raise prices, removing the difficulties faced by prosecutors or civil plaintiffs in proving actual injury to competition. Such precious nuggets lead inexorably to near-automatic liability for the defendants. But what if the nugget turns out to be fool's gold?

Such a not-so-hot document underpinned the recent affirmance of summary judgment for the defendants by the United States Court of Appeals for the Seventh Circuit, in a class action alleging price-fixing by the major providers of mobile telephone text messaging services.1

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