Communist Block: EDNY Finds Chinese Ministry Of Commerce Documents Inadmissible In Vitamin C Litigation

Federal Rule of Evidence 803(8) provides an exception to the rule against hearsay for

A record or statement of a public office if:

(A) it sets out:  

(i) the office’s activities;

(ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel; or  

(iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and  

(B) neither the source of information nor other circumstances indicate a lack of trustworthiness.

The Ministry of Commerce of the People's Republic of China ("Ministry") is the equivalent of a U.S. cabinet-level department. So, would records or statements coming from the Ministry qualify for admission under this public records hearsay exception? Let's take a look at the recent opinion of the United States District Court for the Eastern District of New York in In re Vitamin C Antitrust Litigation, 2012 WL 4511308 (E.D.N.Y. 2012).

The facts of the case are as follows:

Plaintiffs are suing Chinese vitamin C manufacturers for allegedly violating Section I of the Sherman Act, 15 U.S.C. § I, by engaging in a cartel to fix prices and limit the output of vitamin C exported to the United States. The four main defendants are Hebei Welcome Pharmaceutical Co. Ltd.; Jiangsu liangshan Pharmaceutical Co. Ltd.; Northeast Pharmaceutical Co. Ltd.; and Weisheng Pharmaceutical Co. Ltd. (collectively "defendants"). Plaintiffs The Ranis Company ("Ranis") and Magno-Humphries Laboratories, Inc. ("MHL") move for class certification on behalf of a group of direct purchasers seeking treble damages against all defendants except Northeast Pharmaceutical Co. Ltd. ("Northeast"). 

One of the defendants' proposed defenses is "that they were compelled by the Chinese government to fix prices." In furtherance of this defense, the defendants sought to admit

(1) the Ministry's written statement dated August 31, 2009, (2) the Ministry's written statement dated June 9, 2008, and (3) eight excerpts from the Ministry's 2006 amicus submission.

And while the defendants claimed that these documents were admissible under Federal Rule of Evidence 803(8), the Eastern District of New York found that

The Ministry Statements hardly fit the mold of the kinds of public records contemplated by Rule 803(8)(A)(i)...since they are...litigation position papers drafted by an interested amicus that fall outside of its regular activities. Rule 803(8)(A)(i)'s exception to the hearsay rule is grounded in the presumed reliability of descriptions of agency activities submitted by disinterested government entities. It is far from clear that this presumption should apply to litigation-oriented materials such as the Ministry Statements. Nonetheless, since the Ministry Statements do pertain to the activities of the Ministry (and the related Chamber of Commerce of Medicines and Health Products Importers and Exporters...concerning the regulation of vitamin C production, the Court will assume that the requirements of Rule 803(8)(A)(i) are satisfied. The admissibility of the Ministry Statements, therefore, turns on their trustworthiness under Rule 803(8)(B).

The court then found that the documents were not sufficiently trustworthy, concluding that

The circumstances of this litigation provide ample additional and independent reasons to conclude that the Ministry Statements are not trustworthy. While the mere fact that the evidence at issue was created by a foreign, communist government does not make the Ministry Statements untrustworthy, see United States v. Regner, 677 F.2d 754, (9th Cir.1982) (refusing, in the Sixth Amendment context, to “conclude that...document[s] executed by public officials of communist countries” are unreliable, absent any indication of bias suggesting otherwise), there is no dispute that the Ministry is not impartial in this litigation.

-CM