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Evaluating Evidence in Antitrust Matters: 10 quick rules ICN Merger Working Group Workshop March 10-11, 2009 Taipei
Planning As part of your investigative plan, you need to determine: - types of evidence needed - likely sources - method of gathering evidence
Reliability of the evidence Evidence should be tested Authentic documents Credibility of witnesses Have a basis for opinions given Keep a healthy skepticism
Three basic considerations Who said it – the source of the evidence When and where they said it – the circumstances of the evidence How do you interpret the evidence
Who said it #1 Witnesses are most reliable when they have personal knowledge of the facts based on their own experience
Who said it #2 Parties and competitors: handle with care
Who said it #3 For opinions and the big picture, the higher in the company the better. For facts, the lower in the company the better
Who said it #4 Ask whether the witnesses are qualified to offer opinion evidence
When and where #5 Statements are more reliable when companies rely on their accuracy
When and where #6 Pre-existing documents are more reliable than present testimony
Interpreting the evidence #7 Actions speak louder than words
Interpreting the evidence #8 So do inactions: the dog that did not bark
Interpreting the evidence #9 Determine whether a witness’s experience is representative of others
Interpreting the evidence # 10 Take the bitter and the sweet
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