Full opinion text
RULING ON MOTIONS TO STRIKE and FOR SUMMARY JUDGMENT STEFAN R. UNDERHILL, District Judge. This multidistrict litigation arises out of allegations that the defendants conspired to fix, raise, maintain, and stabilize the price of ethylene propylene diene monomer (“EPDM”) synthetic rubber at artificially high, noncompetitive levels in violation of federal antitrust law. The remaining defendants, DSM Copolymer, Inc. (“DCI”) and DSM Elastomers Europe B.Y. (“DEE”) (collectively, the “DSM defendants”), move for summary judgment on all claims of the class plaintiffs in the In re Ethylene Propylene Diene Monomer (EPDM) Antitrust Litigation (the “EPDM antitrust litigation”), Case No. 3:03mdl542(SRU), and all of the claims of the remaining individual plaintiffs in the In re Polychloroprene Rubber (CR) Antitrust Litigation (the “CR antitrust litigation”), Case No. 3:05mdl642(SRU). The DSM defendants have additionally moved to strike several key pieces evidence in both cases, asserting that the evidence would be inadmissible at trial and, therefore, should not be considered for purposes of deciding their motion for summary judgment. For the reasons explained more fully below, the motions to strike are denied in their entirety. In addition, because the plaintiffs have presented sufficient evidence from which a reasonable jury could conclude that the DSM defendants were engaged in an illegal price-fixing conspiracy in the U.S. EPDM market, the motions for summary judgment are denied. I will first address the motions to strike. I. Factual Background EPDM is a synthetic rubber used primarily in the automotive and roofing industries; it is found in products such as weather stripping and seals, radiator, garden and application hoses, automotive belts, electrical insulation, roofing, and some tire applications. Between January 1, 1997 and December 31, 2001 — the Class Period — U.S. production of EPDM fluctuated between a low of 347,000 metric tons to a peak of 397,000 metric tons. During Class Period, the five largest North American producers of EPDM were DCI; Crompton Corporation (f/k/a Uniroyal Chemical Corporation) (“Crompton”); DuPont Dow Elastomers (“DDE”), a joint venture of the Dow Chemical Company and E.I. DuPont de Nemours & Company; Bayer Polymers; and ExxonMobil Corporation (“Exxon”). Because of the small number of producers, the U.S. market for EPDM is considered “concentrated.” It is undisputed that, during the relevant period, there were six “lockstep,” industry-wide list price increases. In the first half of this decade, criminal investigations into an alleged price-fixing conspiracy in the EPDM industry were commenced by the United States Department of Justice (“DOJ”), the Canadian Competition Bureau (“CCB”), and the European Commission (“EC”). All three entities closed their EPDM investigations in 2006 without bringing any criminal charges against any company or individual. In April 2003, shortly after the public announcement of the DOJ investigation, putative class action suits alleging price fixing in violation of section 1 of the Sherman Act were filed by direct purchasers of EPDM. The defendants in those suits included the DSM defendants, DCI and DEE; Crompton; DDE; Bayer Polymers, Bayer Corporation, Bayer AG (collectively, “Bayer”); Exxon; and Polimeri Europa S.p.A. (£(k/a Enichem S.p.A) (“PolimerVSyndial”). In 2004, Goodyear Tire & Rubber Company filed an action, and Parker Hannifin Corporation (“Parker Hannifin”) and PolyOne Corporation (“PolyOne”) filed their own action against all the same defendants, with the exception of Exxon. The class actions and the Goodyear and Parker Hannifin/Polyone suits were consolidated for pretrial proceedings in this court in two separate, but coordinated, MDL-proceedings: the EPDM antitrust litigation and the CR antitrust litigation. The plaintiffs have alleged that the defendants conspired to fix, maintain, and/or stabilize EPDM prices in the United States in violation section 1 of the Sherman Act, 15 U.S.C § 1, by engaging in collusive discussions, meetings, agreements, and understandings to raise prices to supracompetitive levels and to stabilize the supply of EPDM from competitors outside the cartel. The plaintiffs allege that the defendants met regularly to discuss EPDM prices — at trade association meetings or at other off-site locations — and engaged in regular written communications with one another to maintain their collusive agreement. The plaintiffs contend that, pursuant to their collusive agreements, the defendants took turns leading EPDM price increases by conferring months in advance of an announced price increase about whose turn it was to raise prices. The plaintiffs also allege that defendants sought to cut off new sources of capacity by buying up new production in Asia and eventually setting up market allocation agreements between North American suppliers and those Asian suppliers. The plaintiffs allege the global conspiracy was most effective in the U.S. and Canadian markets, where prices were approximately 10-15% higher than in the Western Europe market. The plaintiffs allege that the defendants were so protective of their cartel that when a defendant’s production capacity dropped due to plant or production problems, its competitors would provide that defendant with EPDM so that it could continue to supply its customers, rather than take the opportunity to compete for those customers directly. In return for receiving the additional supply of EPDM, the plaintiffs allege the struggling supplier would agree not to compete for the supplying party’s customers. Thus, despite individual supplier disruptions, set market share and customer allocations were maintained. The DSM defendants have moved for summary judgment on the ground that the plaintiffs have failed to establish any evidence supporting their allegations that the DSM defendants agreed with the other defendants to engage in an illegal price-fixing conspiracy in the United States between January 1, 1997 and December 31, 2001. II. Motion to Strike The DSM defendants have moved to strike much of the evidence that the plaintiffs rely on to establish a genuine issue of material fact that the DSM defendants were engaged in an illegal conspiracy in violation of section one of the Sherman Act. The DSM defendants argue that each piece of contested evidence would be, for varying reasons, inadmissible at trial. I will separately address the admissibility of each piece of evidence. A. Standard of Review A motion to strike is the appropriate means for challenging evidence submitted in connection with a motion for summary judgment. Newport Elec., Inc. v. Newport Corp., 157 F.Supp.2d 202, 208 (D.Conn.2001). Typically, motions to strike are granted where the evidence would not be admissible at trial. See LaSalle Bank Nat. Ass’n v. Nomura Asset Capital Corp., 424 F.3d 195, 205 (2d Cir.2005) (“[Ejvidenee considered on summary judgment must generally be admissible evidence.”). “Even on summary judgment, a district court has wide discretion in determining which evidence is admissible.... ” Id. (internal quotation omitted). 1. Crompton Interrogatory Answers The DSM defendants first move to strike the Crompton (n/k/a Chemtura Corporation) interrogatory responses dated June 20, 2006. Jt. Ex. 94. The interrogatory answers provide what is essentially an overarching timeline of the contact that Crompton executives had with various executives from other EPDM producers, including the DSM defendants, prior to, during, and after the Class Period. The interrogatory answers describe the meetings that took place between the executives of the various EPDM producers, and relate what was discussed and agreed to at those meetings. The key Crompton executives who engaged in the underlying conduct described in the interrogatory response — Joe Gatto (Jt. Ex. 103); Daniel Shantz (Jt. Ex. 109); Gerald Fickenscher (Jt. Ex. Ill); and James Conway (Jt. Ex. 167) — invoked their Fifth Amendment privilege against self-incrimination at their depositions. Therefore, those executives are unavailable to testify directly about the events described in the interrogatory answers. Both sides agree that the interrogatory answers are inadmissible as hearsay. The plaintiffs further agree that the interrogatory answers of one defendant are not admissible against another defendant, unless those answers are covered by an exception to the hearsay rule. Accord 8A Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure § 2180 (2d ed.1994). The plaintiffs contend, however, that there are two exceptions to the hearsay rule that would permit the admission of the Crompton interrogatory answers at trial: Federal Rule of Evidence 804(b)(3), which governs statements made by unavailable witnesses, and Federal Rule of Evidence 807, the catch-all hearsay exception. Rule 804(b)(3) provides that the hearsay rule does not exclude certain statements where (1) the declarant is unavailable, and (2) the statement, at the time it was made, was: so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true. Witnesses who invoke their Fifth Amendment privilege against self-incrimination are “unavailable” within the meaning of Rule 804(b). United States v. Jackson, 335 F.3d 170, 177 (2d Cir.2003). According to the plaintiffs, because the Crompton executives who are the subject of the interrogatory answers have invoked the Fifth Amendment, and thus will not be available to testify about the incidents related in the interrogatory answers, those executives will be “unavailable” as witnesses pursuant to Rule 804(b)(3). The DSM defendants challenge that Crompton will be “unavailable” at trial, regardless of the unavailability of certain of its executives, contending that a corporation cannot be considered “unavailable” for purposes of the hearsay exception when its executives invoke the Fifth Amendment. The DSM defendants further note that the Crompton corporate representative who signed the interrogatory answers did not have personal knowledge of the information contained therein, but rather certified those answers “to the best of [his] information, knowledge, and belief’ based on the information made available to him by others. Jt. Ex. 166. Therefore, he would be unable to testify about the events described in the interrogatory answers. Corporations do not have a Fifth Amendment privilege against self-incrimination. Consol. Edison Co. of N.Y. v. Pataki, 292 F.3d 338, 347 (2d Cir.2002) (citing Wilson v. United States, 221 U.S. 361, 382-86, 31 S.Ct. 538, 55 L.Ed. 771 (1911)). Accordingly, Crompton — the entity responding to the interrogatory requests — is not “unavailable” within the meaning of Rule 804(b)(3). It is an open question whether a corporation could become “unavailable” if all its corporate representatives who are the source for the information contained in the corporation’s “statement,” are unavailable. Because I believe Rule 807 provides for the interrogatory answers’ admission into evidence, however, I need not reach that issue. Turning to the plaintiffs’ second hearsay exception, the hearsay rule will not exclude statements that are not covered under the other hearsay exceptions, but that nevertheless have the “equivalent circumstantial guarantees of trustworthiness.” Fed.R.Evid. 807. “To be admissible under Rule 807, the evidence must be (1) trustworthy, (2) material, (3) more probative than other available evidence, and must fulfill (4) the interests of justice and (5)notice.” Silverstein v. Chase, 260 F.3d 142, 149 (2d Cir.2001). The residual exception should be applied only in “the rarest of cases.” United States v. Harwood, 998 F.2d 91, 98 (2d Cir.1993) (internal quotation omitted). There is no dispute that the DSM defendants are on notice with regard to the plaintiffs’ intentions to use the interrogatory answers as a significant part of their antitrust case against the DSM defendants. In addition, there is no question that the interrogatory answers are material to the plaintiffs’ case — in the absence of the interrogatory answers, the only available evidence about the events at issue are the statements of DSM executives who cannot recall what occurred during those meetings or who deny the version of events described in the interrogatory answers. Therefore, the interrogatory answers would be significant, and perhaps necessary, in creating a genuine issue of material fact on the issue of the DSM defendants’ liability for knowing participation in a price-fixing conspiracy. Finally, the answers are certainly more probative than other available evidence because they constitute the only documentary evidence available to the plaintiffs that disputes the DSM defendants’ version of what occurred at certain specific and verifiable events. For instance, for many of the pertinent events comprising the alleged price-fixing scheme, although the plaintiffs have admissible evidence placing a DSM executive at a particular location on a particular day, they have no additional evidence of what occurred at that meeting to dispute the DSM defendants’ recollection of what occurred. For example, the interrogatory answers admit that, on October 20, 1999, a Crompton executive met with a DSM executive at a Baton Rouge, Louisiana coffee shop, and that they “discussed North American pricing.” Jt. Ex. 94 at 28. The interrogatory answers suggest that the DSM representative, Roger Lacallade, stated that “DSM would not lead a price increase because they had led one in the past and had suffered as a result.” Id. When asked about that specific meeting, the Crompton executive, Daniel Shantz, invoked the Fifth Amendment and refused to discuss that meeting during his deposition. Jt. Ex. 109, Shantz Dep. at 86-87. In contrast, Lacallade admitted to meeting Shantz at the coffee shop but could not recall what they discussed. PD 10, Lacallade Dep. at 98-99. The disagreement between the parties boils down to the issue of the evidence’s trustworthiness. The DSM defendants vigorously dispute the interrogatory answers’ trustworthiness, arguing that because Crompton had tried and failed to settle with the plaintiffs but ultimately did reach a settlement, it had an incentive to shift the blame to other defendants in order to negotiate a smaller settlement amount. The plaintiffs counter that the interrogatory answers are trustworthy because they were made while Crompton was still an active defendant in these antitrust litigations and the answers exposed Crompton to liability as a participant in the conspiracy and to treble damages under the Sherman Act. Thus, the statements were made despite being against the pecuniary interest of the company. I conclude that the totality of the circumstances surrounding the production of the interrogatory answers supports their trustworthiness. First, they were made while Crompton remained a defendant in this action. The interrogatory answers were submitted on June 21, 2006, Jt. Ex. 94 at 45, and verified on August 29, 2006, Jt. Ex. 166. The parties did not settle until February 2007; the plaintiffs submitted a stipulation of dismissal of all claims, with prejudice, against Crompton (doc. # 330), and I granted the plaintiffs’ motion for approval of the proposed settlement agreement with Crompton on February 15, 2007 (doc. # 334). Interrogatory answers are treated as judicial admissions, which can be used against a party in the course of litigation, meaning that interrogatories must be answered with a special degree of care. Guadagno v. Wallack Ader Levithan Assocs., 950 F.Supp. 1258, 1261 (S.D.N.Y.1997). Accordingly, at the time the answers were verified by the appropriate corporate representative, Crompton remained subject to liability — and to the possibility of treble damages — on the basis of their answers to those interrogatories. Second, it is not clear that the interrogatory answers furthered Crompton’s self-interest in settlement negotiations. The defendants argue that the interrogatory answers are not trustworthy because Crompton had a motive to shift the blame to its co-defendants in the hopes of negotiating a better settlement agreement in the future. But that explanation is not clear from the face of the answers and, furthermore, the converse could also be true. The interrogatory responses contain enough circumstantial evidence to permit a reasonable fact-finder to conclude that Crompton and its representatives participated in an EPDM antitrust conspiracy that exposed it to criminal and civil liability. Because conspiracy involves joint activity, implicating one’s co-defendants does not necessarily relieve or lessen one’s own liability. Therefore, even if the answers did not contain an explicit admission that Crompton participated in the conspiracy, they strengthened the plaintiffs antitrust case most decisively against Crompton. The interrogatory answers gave the plaintiffs reason not to settle with Crompton in the hopes of receiving treble damages at trial, which makes them more reliable than the defendants contend. The DSM defendants point to Kirk v. Raymark Industries, Inc., 61 F.3d 147, 167-68 (3d Cir.1995), which held the district court abused its discretion by admitting a settling defendant’s interrogatory answers against a non-settling defendant under the residual exception because the answers were self-serving and disclaimed the liability of the settling defendant. Raymark is distinguishable, however, precisely because Crompton’s interrogatory answers are inculpatory, not exculpatory. In Raymark, the settling defendant sought to disclaim liability and “had every incentive to set forth the facts in the light most favorable to itself.” Id. at 167. The plaintiff sought to prove that the non-settling defendant’s product had been solely responsible for his asbestos exposure by relying on the settling defendant’s interrogatory response that its product did not emit meaningful levels of asbestos dust and fibers, thereby leaving only the non-settling defendant’s product to blame. Id. at 166. The Third Circuit held that such a “self-serving” answer by the settling defendant, which was motivated to avoid liability at the time the interrogatory responses were submitted, “lacks the ‘circumstantial guarantees of trustworthiness’ ” contemplated by the residual exception to the hearsay rule. Id. at 167 (quoting Rule 807’s predecessor, Rule 803(24)). Unlike the settling defendant in Raymark, Crompton’s interrogatory answers did not reduce, but enhanced, its exposure to liability, making those answers inherently trustworthy. Finally, the unusual circumstances presented here warrant the rare application of Rule 807 and supports the final factor, i.e., that its application be in the interests of justice. Crompton, as a corporation, is not permitted “to take the Fifth” and render itself unavailable for purposes of Rule 804. Nevertheless, the individuals at Crompton with personal knowledge of the events that formed the basis of the corporation’s interrogatory responses have chosen to exercise their Fifth Amendment privilege against self-incrimination, effectively rendering Crompton unavailable to testify at trial about those events. If Crompton were an individual who had submitted those interrogatory responses and then, when called to take the stand to testify, had taken the Fifth, the interrogatory answers would have been admitted as a matter of course under recognized exceptions to the hearsay rule. Because Crompton is a corporation, however, it must speak through its representatives. When those representatives invoke the Fifth Amendment, however, Crompton is rendered effectively speechless on those issues, yet still remains technically “available” to testify. The interrogatory answers have an equivalent circumstantial guarantee of trustworthiness to other out-of-court statements excepted from the hearsay rule, and are admissible under Rule 807. Accordingly, the DSM defendants’ motion to strike those answers from consideration of its motion for summary judgment is denied. The DSM defendants are, of course, still permitted to dispute the relevance and credibility of those statements at trial. 2. Invocation of Fifth Amendment Privilege by Crompton Executives The DSM defendants next seek to prevent the plaintiffs from drawing an adverse inference against the DSM defendants from the Crompton executives’ invocations of their Fifth Amendment privilege. The Second Circuit does not preclude drawing an adverse inference against an opposing party from a non-party witness’s invocation of the Fifth Amendment privilege against self-incrimination. In LiButti v. United States, 107 F.3d 110, 123-24 (2d Cir.1997), the Second Circuit set forth four non-exclusive factors a trial court should consider when determining the admissibility of a non-party’s invocation of the Fifth Amendment: (1) the nature of the relevant relationships; (2) the degree of control of the party over the non-party witness; (3) the compatibility of the interests of the party and non-party witness in the outcome of the litigation; and (4) the role of the non-party witness in the litigation. Ultimately, the “overarching concern is fundamentally whether the adverse inference is trustworthy under all of the circumstances and will advance the search for the truth.” Id. at 124. The first factor — the nature of the relationship — is the most significant for determining admissibility. Id. at 123. When the party and the non-party witness are claimed co-conspirators, generally courts have required there to be sufficient, independent proof of a conspiracy between them before permitting the jury to draw an adverse inference against the party. See, e.g., Jury Instructions, In re Scrap Metal Antitrust Litig., No. 1:02cv844, 2006 WL 2850453 (N.D.Ohio 2006) (doc. # 631) (instructing jury that it could draw a “negative inference” against defendant from non-party witnesses’ invocation of the Fifth Amendment privilege if, and only if, “there is independent ... evidence to support the conclusion that such defendant participated in a conspiracy with the particular witness or with the particular corporation with which that witness was affiliated”); State Farm Mut. Auto. Ins. Co. v. Abrams, No. 96-C-6365, 2000 WL 574466, at *7 (N.D.Ill. May 11, 2000) (agreeing that an adverse inference may be drawn against a party from an alleged co-conspirator’s invocation of the Fifth Amendment, but concluding that the court need not decide the issue on a motion for summary judgment because there was enough additional evidence of the conspiracy to create a genuine issue of material fact); United States v. Dist. Council of N.Y. City & Vicinity of the United Bhd. of Carpenters & Joiners of Am., 832 F.Supp. 644, 652 (S.D.N.Y.1993) (agreeing that “the refusal to testify by a proven co-conspirator may justify an adverse inference against the other co-conspirators,” but concluding that whether the proof of the conspiracy at trial “supported] the inference remain[ed] to be seen”). Because, as discussed more fully below, I believe there is sufficient evidence to establish a genuine issue of material fact on the issue of the DSM defendants’ participation in a price-fixing conspiracy even without having to draw negative inferences from the Crompton executives’ invocation of the Fifth Amendment privilege, I will reserve decision on the admissibility of the adverse inferences until trial. Accordingly, I will deny the motion to strike the Fifth Amendment invocations of Joe Gatto, Daniel Shantz, James Conway, and Gerald Fickenscher without prejudice to renewing that argument at trial. 3. European Commission Statement of Objections The defendants next contest the plaintiffs’ reliance on a portion of a European Commission Statement of Objections (“SO”) regarding the EPDM industry. PX 19. The plaintiffs concede that the information they cite from section four of the SO is hearsay, but assert that it is admissible under the exception to the hearsay rule set forth in Federal Rule of Evidence 803(8)(C). Rule 803(8)(C) provides: The following are not excluded by the hearsay rule, even though the declarant is available as a witness: ... (8) Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth ... (C) in civil actions and proceedings ... factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness. “Rule 803(8) ‘is based upon the assumption that public officers will perform their duties, that they lack motive to falsify, and that public inspection to which many such records are subject will disclose inaccuracies.’ ” Bridgeway Corp. v. Citibank, 201 F.3d 134, 143 (2d Cir.2000) (quoting 31 Michael H. Graham, Federal Practice and Procedure § 6759, at 663-64 (interim ed.1992)). The admissibility of evidence covered under Rule 803(8)(C) “is generally favored” and presumed. Gentile v. County of Suffolk, 926 F.2d 142, 148 (2d Cir.1991). To be admissible under Rule 803(8)(C), “the evidence must (1) contain factual findings, and (2) be based upon an investigation made pursuant to legal authority.” Bridgeway, 201 F.3d at 143. Once the party seeking admission satisfies those “minimum requirements,” the burden shifts to the party opposing admission to demonstrate a lack of trustworthiness. Id. The DSM defendants do not dispute that the SO contains facts that are the result of an investigation by a public agency made pursuant to authority granted by law. Rather, the DSM defendants dispute whether the “factual findings” are appropriately trustworthy, arguing that the facts contained in section four of the SO are not reliable or trustworthy because they are not the Commission’s final findings of fact, but instead are provisional allegations that are subject to further review by the Commission before any sanctions are levied. The plaintiffs do not dispute that the SO’s facts are not established beyond dispute; they agree that parties can raise objections to the facts contained in SOs by submitting a written reply detailing how and why the facts set forth in the SO are not correct and that the Commission’s ultimate decision can differ from the facts presented in the SO. But, notwithstanding the further opportunity to be heard on the facts presented, the plaintiffs argue that the SO contains factual findings that are nonetheless trustworthy and subject to the Rule 803(8)(C) hearsay exception. Certainly, one factor when considering whether the factual findings contained in the government agency’s report are sufficiently trustworthy to warrant exclusion from the hearsay rule under Rule 803(8)(C) is the finality of those findings. Coleman v. Home Depot, Inc., 306 F.3d 1333, 1342 n. 4 (3d Cir.2002). Finality, however, is not the only factor to be considered. Other pertinent factors for determining whether Rule 803(8)(C) applies include: “(a) the timeliness of the investigation, (b) the special skills or experience of the official, (c) whether a hearing was held and the level at which it was conducted, and (d) possible motivation problems.” Bridgeway, 201 F.3d at 143 (citing Fed.R.Evid. 803(8)(C) advisory committee’s note). A court may also consider the extent to which the findings are themselves based on inadmissible evidence and, if so, whether appropriate safeguards were used to ensure the findings’ reliability and trustworthiness; whether the findings are based on an ascertainable record; whether the findings represent the agency’s policy judgment or are an implementation of the agency’s policy judgment; whether the findings are derived from prior factual findings that are untrustworthy; and, if the report purports to offer an expert opinion, whether the opinion is derived from facts and data of the sort reasonably relied upon by experts in that field. Coleman, 306 F.3d at 1342 n. 4 (citing Zenith Radio Corp. v. Matsushita Elec. Indus. Co., 505 F.Supp. 1125, 1147 (E.D.Pa.1980)). Contrary to the DSM defendants’ position that a report must be “final” before it can be considered sufficiently trustworthy for admission pursuant to Rule 803(8)(C), the plaintiffs have cited to decisions in the Second Circuit and elsewhere that have admitted interim government investigative reports into evidence. See, e.g., Meriwether v. Coughlin, 879 F.2d 1037, 1039 (2d Cir.1989) (noting that an interim report by the New York State Commission of Investigation on corruption and abuses at a particular state prison had been admitted into evidence, and relying on facts set forth in that interim report); Zeneca Inc. v. Eli Lilly & Co., No. 99cv1452 (JGK), 1999 WL 509471, at *3-4 (S.D.N.Y. July 19, 1999) (admitting Food and Drug Administration (“FDA”) meeting minutes under Rule 803(8)(C) over objection of defendant that the minutes contained non-final factual findings because the minutes “were the result of a timely review,” the FDA had authority to conduct the review, the investigators had “technical skill and expertise and were unbiased,” the defendant was given the opportunity to review the minutes and correct any errors, and the defendant failed to otherwise demonstrate why or how the minutes were not trustworthy); Reynolds v. Giuliani, No. 98cv8877 (WHP), 1999 WL 33027, at *1-2 (S.D.N.Y. Jan. 21, 1999) (admitting draft report by the United States Department of Agriculture, over the defendants’ objections, under Rule 803(8)(C) after considering the relevant factors and noting that “[t]he fact that the Report is non-final does not render it untrustworthy”); Ellis v. Int’l Playtex, Inc., 745 F.2d 292, 300-02 (4th Cir.1984) (admitting, under Rule 803(8)(C), government scientific reports containing “tentative conclusions as well as statistical findings” over defendant’s objection that they were untrustworthy because they were not final findings of fact); Jama v. INS, 334 F.Supp.2d 662, 677-81 & n. 20 (D.N.J.2004) (admitting interim INS investigatory report under Rule 803(8)(C) because the entity was itself responsible for the findings contained in the report and was not merely an informal staff report from within an entity charged with conducting the formal findings and noting that “the fact that findings are subject to review or revision, though it bears on their trustworthiness, does not remove them from the category of findings for the purposes of the rule”); Wells v. Allstate Ins. Co., No. 00-0760-LFO, 2002 WL 34371516, at *2 (D.D.C. May 24, 2002) (admitting investigatory report under Rule 803(8)(C) that was not formally adopted by the relevant government body). The fact that the SO is subject to further review and consideration by the Commission, therefore, is not necessarily dis-positive on the question of trustworthiness. The DSM defendants rely on City of New York v. Pullman, Inc., 662 F.2d 910, 914 (2d Cir.1981), which affirmed the district court’s decision to exclude a report as failing to meet the requirements of Rule 803(8)(C), in part, because it was an “ ‘interim’ staff report in the form of a recommendation” to the agency administrator. Not only is the report at issue in Pullman distinguishable from the SO, but the Court’s consideration of Rule 803(8)(C) included factors in addition to the lack of finality that weighed against admission under the hearsay exception. Id. First, the report in Pidlman is more analogous to a draft SO, prepared by a staff member of the investigatory arm of the Commission and submitted to the SO’s author, Neelie Kjroes, for her approval, than to the final SO ultimately authored and issued by Rroes, which the DSM defendants have moved to strike. Second, the Pullman Court also considered the report untrustworthy because it was not based on an independent investigation by the report’s author but relied on data from tests collected by the parties themselves. Id. at 915. Finally, even the Pullman Court recognized that Rule 803(8)(C) is to be “applied in a commonsense manner, subject to the district court’s sound exercise of discretion in determining whether the hearsay document offered in evidence has sufficient independent indicia of reliability to justify its admission.” Id. at 914. Pursuing their argument that the SO is untrustworthy, the DSM defendants cite the decision by the Court of Justice of the European Communities (the “European Court of Justice”), the EU’s highest court, in Case C-413/06 P, Bertelsmann v. Independent Music Publishers & Labels Ass’n, 2008 E.C.R. 1-4951 (attached as Ex. F to the DSM Defs.’ Supplemental Br. Concerning Admissibility of the EC Statement of Objections), for the proposition that SOs have no evidentiary value in the EU’s own courts due to their lack of finality. That proposition mischaracterizes Bertelsmann’s holding. Bertelsmann held that the Commission is not required to adhere to the SO’s factual findings, if, after considering the parties’ objections to the SO and any new facts found during the subsequent administrative proceedings, it issues a decision that makes factual findings conflicting with those set forth in the SO. Id. ¶¶ 61-77. Describing the SO as “a procedural and preparatory document” that “delimits the scope of the administrative procedure initiated by the Commission,” the Bertelsmann Court stated that the SO is inherently “provisional and subject to amendments to be made by the Commission in its further assessment on the basis of the observations submitted to it by the parties and subsequent findings of fact.” Id. ¶ 63. The Bertelsmann Court held that the lower court had erred when it (1) treated the SO’s findings as being “established beyond dispute” and (2) vacated the Commission’s subsequent decision because it contradicted the SO’s factual findings. Id. ¶ 76. The Bertelsmann Court did not hold, however, that it is never appropriate for EU courts to consider an SO’s factual findings. In evaluating the “correctness, completeness and reliability of the facts on which a decision is based,” the Bertelsmann Court stated that the courts are “not necessarily precluded from using the [SO] in order to interpret a decision of the Commission, particularly as regards the examination of its factual basis,” notwithstanding the fact that SOs are “preparatory and provisional.” Id. ¶ 69. Indeed, the plaintiffs point to at least two EU court decisions that treat the factual findings contained in SOs as meaningful and legitimate where those facts are not disputed by the target party in its written reply. In Case T-410/03, Hoechst GmbH v. Commission, 2008 E.C.R. II-881 (attached as Ex. D to the Pl.’s Mem. Re: the Admissibility of Certain Factual Findings in the Statement of Objections), the Court of First Instance of the European Communities (the “Court of First Instance”), considered Hoechst’s objection to the fine imposed for its participation in an anticompetitive scheme. In the course of its ruling, the Court of First Instance summarized the parties’ arguments regarding the factual grounds for the Commission’s decision against Hoechst, stating that “the Commission contends that Hoechst obviously understood what is covered by the expression ‘at a very high level’ and that, moreover, the [SO] makes clear that the agreements had been conceived, directed and encouraged at a very high level in the undertakings concerned.” Id. ¶ 326. The Court accepted the Commission’s argument because “Hoescht did not dispute [the SO’s] findings and there was no need to develop that point in greater detail.” Id. The Court further noted that, significantly, certain facts contained in the Commission’s decision had been repeated from the facts set forth in the SO, which had never been objected to by Hoescht during the course of the subsequent administrative proceedings. Id. ¶¶ 354-56. See also Joined Cases T-236, 239, 244-46, 251, & 252/01, Tokai Carbon Co. Ltd. v. Comm’n, 2004 E.C.R. 11-1181, ¶¶ 64-67 (attached as Ex. E to the PL’s Mem. Re: the Admissibility of Certain Factual Findings in the Statement of Objections) (rejecting an argument that relied on facts that contradicted the “findings of fact” made both in the Commission’s decision and SO, where party expressly stated it did not seek to contradict the substantive truth of those facts); id. ¶¶ 70-74 (noting that the SO set forth facts that remained undisputed by the party in its reply to the SO). The fact that the Commission is empowered to make subsequent factual findings that contradict the SO does not render the SO analogous to a complaint in an American lawsuit, i.e., a document containing mere factual allegations that the plaintiff must subsequently prove in order to prevail in his or her suit. The SO was not the opening salvo in the communications between the Commission and the target companies, but was the culmination of the Commission’s preliminary investigation. Indeed, the SO indicates that DSM supplied at least four written replies to the Commission’s requests for information. PX 19 at ¶ 59. SOs are properly understood as the Commission’s investigatory body’s factual findings and legal conclusions that are then submitted to the full Commission for its consideration; it is the Commission that has the authority to conclude that, based on the facts presented in the SO and through additional fact-finding arising out of the target party’s written responses, the target parties violated the relevant EU competition laws. Decl. of Michel Petite ¶¶ 3-5 (attached as Ex. B to the DSM Defs.’ Supplemental Br. Concerning Admissibility of the EC Statement of Objections). The Commission is required to give the target party an opportunity to respond in writing, and to give the party an opportunity to develop its arguments at an oral hearing, if the party so requests. Id. at ¶¶ 4-5; Commission Regulation 773/2004, 2004 O.J. (L 123) 18, 21. At least one district court in this circuit has held that an SO is eligible for admission under Rule 803(8)(C). In Information Resources, Inc. v. The Dun & Bradstreet Corp., No. 96cv5716 (LLS), 1998 WL 851607 (S.D.N.Y. Dec. 8, 1998), the Court admitted the SO under Rule 803(8)(C), despite the fact that it did not represent the final decision of the Commission, because “[t]he circumstances do not indicate any lack of trustworthiness, and to the extent that the [SO] represents conclusions, it is ‘subject to the ultimate safeguard — the opponent’s right to present evidence tending to contradict or diminish the weight of those conclusions.’” Id. at *1 (quoting Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 168, 109 S.Ct. 439, 102 L.Ed.2d 445 (1988)). The DSM defendants argue that the Information Resources Court misapplied the two cases it relied on in reaching its decision to admit the SO: In re Korean Air Lines Disaster of September 1, 1983, 932 F.2d 1475, 1481-82 (D.C.Cir.1991), and In re Japanese Electronic Products Antitrust Litigation, 723 F.2d 238, 268 (3d Cir.1983), rev’d on other grounds sub nom. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The DSM defendants contend that those cases do not support the proposition that it is permissible to admit a non-final report. Contrary to the DSM defendants’ assertion, however, those cases do not require a report to be final in order to be admissible under Rule 803(8)(c). In Korean Air Lines, the report was “final” in the sense that it was last version completed by the Secretary General for the International Civil Aviation Organization (“ICAO”), but it was prepared for the ICAO Council, which had the authority to adopt or ignore the findings in the report. 932 F.2d at 1482. Although the Council ultimately chose not to endorse the report, the D.C. Circuit nevertheless concluded that the report was trustworthy enough for admission under Rule 803(8)(C). Id. at 1482-83. In Japanese Electronic, the Third Circuit determined that the district court had abused its discretion when it concluded the government investigatory report’s factual findings were untrustworthy. The district court made that determination because: (1) there was no evidentiary hearing; (2) the Assistant Secretary did not attend the hearings which were held but instead relied on staff reports; (3) the investigation included hearsay, confidential communications, and ex parte evidence; (4) the procedures, while permitting submissions and the opportunity to present argument by counsel, did not provide for cross-examination; (5) there was no ascertainable record; (6) the finding was made at a nascent stage of the investigation; (7) the finding was subject to some form of judicial review; and (8) the finding contained no statement of reasons for allowances or disallowances of particular adjustments. 723 F.2d at 268. According to the Third Circuit, “[njeither singly nor collectively do these reasons overcome the presumption of reliability.” Id. On the issue of the stage of the investigation, “[t]he fact that the finding was made at the nascent stage of the proceedings is in our view of no significance.” Id. Indeed, the report was a “predicate” for the agency to take further proceedings. Id. The Court further noted that reliability was even more likely because the parties had been represented by counsel during the investigation and had an opportunity to submit written responses and make oral arguments. Id. In total, neither case cited by the Information Systems Court required the report be final. Consequently, I do not believe that the Information Systems Court relied on an improper reading of those cases when it admitted an SO under Rule 803(8)(C). Although the DSM defendants point out that the Commission ultimately decided to close the proceeding without finally adopting the SO’s factual findings, Jt. Ex. 6, there is nothing in the record to indicate whether DSM opted to formally object to the findings of fact contained in the SO. Many of the findings appear to be the product of cooperation between the Commission’s investigatory body and DSM. For instance, the SO states that “DSM confirms the participation” of two DSM executives in a number of meetings at a particular hotel, but that it “was unable to provide any documents relating to these meetings.” PX 19 ¶ 70. See also id. ¶ 85 (“DSM has confirmed the participation of two of its employees in such meetings ...” and “DSM has confirmed that such contacts have taken place, and stated that no notes or agendas were kept of the meetings.”); id. ¶ 89 (“[DSM’s] De Roo for his part claims never to have known Gatto and never to have had dinner with Schmitt.”); id. ¶ 125 (“[DSM’s] Viets confirms that he has met [Bayer’s] Bach from time to time, but cannot recall a meeting where both [Bayer’s] Pask and Bach were present. He states that there was no agenda or minutes kept for these informal meetings.”). Based on the EU court decisions discussed above, where there is no indication that a party expressly disputed the factual findings contained in the SO, it is appropriate for the Commission to consider the factual findings in the SO on that point to be dispositive of the issue. In other words, there is nothing that prevents the Commission from relying on the SO’s factual findings absent some showing of error by the parties. DSM has not submitted any document that indicates whether it submitted written objections to the SO’s facts. Without such objections, there would be no reason, based on the thoroughness of the investigation, for the Commission to disbelieve the SO’s factual findings. Furthermore the SO’s factual findings can be verified by comparison with other evidence in the record. For instance, paragraph 112 of the SO describes a meeting between DSM’s Viets, Bayer’s Pask, and Enichem’s Cantoni and indicates that the three “discussed their assessments of total demand of a number of large customers.” PX 19. In his deposition, Viets admits to meeting with those two other men in early 1998 in Germany, as the SO relates. Viets Dep., PD 13 at 70. Viets’s handwritten notes from that meeting state that the three men discussed the price of EPDM and common customers. PX 108; Viets Dep., PD 13 at 88-89,102-17. An SO’s factual findings are not the ultimate, immutable factual findings of the Commission, but are rather the final report by the investigatory body of the Commission that initiates the full Commission’s consideration of the conduct set forth in the SO. With respect to the SO at issue here, the Commission ultimately decided to drop the proceedings initiated by the SO. Except for those points, the DSM defendants have not set forth any grounds why the SO should be considered untrustworthy. I conclude that the factual findings in the SO are sufficiently trustworthy to warrant exclusion from the hearsay rule under Rule 803(8)(C) because (1) the SO at issue here was in its final form, i.e., the plaintiffs are not attempting to submit a draft SO; (2) the SO is the product of an independent investigation, during which DSM was given the opportunity to participate by submitting at least four written responses prior to the report’s publication; (3) there is no indication that the report was not completed in a timely manner; (4) the report was based on a record of ascertainable and verifiable facts; (5) there is no indication that the DSM defendants objected to the SO’s factual findings, despite the opportunity to do so; and (6) the report was authored by the EC Commissioner for Competition, Neelie Kroes, the highest Commission official directly responsible for antitrust matters, whom the DSM defendants have not accused of having questionable motives or bias in producing the SO. Accordingly, I deny the motion to strike PX 19, the European Commission’s Statement of Objections addressed, in part, to DSM. The DSM defendants have not challenged the relevance of the SO, nor have they made an argument that its potential prejudice substantially outweighs its probativeness. My ruling, therefore, does not address those issues, and the defendants remain free to raise those and any other evidentiary challenges to the document at trial. 4. Foreign Evidence The DSM defendants next move to strike particular evidentiary documents regarding foreign conduct as irrelevant, including: (1) PX 55: an email written by Bernard Schmitt on August 14, 1996; (2) PX 108: Yiets’s handwritten notes authored on April 17,1998; (3) Jt. Ex. 110: a memo authored by Gatto on July 14, 1998; and (4) PX 53 & PX 233: emails authored by Schmitt on July 24, 1996 and December 7, 2000. The plaintiffs contend that the EPDM price-fixing scheme was globalized and, therefore, foreign conspiratorial conduct is relevant to the defendants’ price-fixing activities in the United States. Specifically, the plaintiffs contend that conduct in Europe is important for understanding the U.S. price-fixing scheme because EPDM manufacturers set U.S. prices in consideration of European prices to avoid the potential for arbitrage and the defendants’ North American and European counterparts met to discuss EPDM pricing and customers in both markets. I will address the relevance of each challenged piece of evidence in turn. a. August 14, 1996 Schmitt Email Plaintiffs contend that the challenged email authored by Crompton’s Bernard Schmitt is a summary of the meeting he had with DSM’s Peter De Roo in Maastrict, Netherlands on or about August 14, 1996. According to the email and Schmitt’s handwritten notes, PX 56, and as confirmed by Schmitt in his deposition, PD 10, Schmitt Dep. at 61, not only did he meet De Roo on that date in Maastricht, but they discussed DSM personnel changes in the United States, DSM’s worldwide capacity, which includes the United States, and the probability that DSM would announce a price increase for that October. For his part, De Roo agrees that he met with Schmitt three or four times, but asserts that they merely exchanged simple greetings and discussed “common things.” PD 17, De Roo Dep. at 25. De Roo denies ever discussing future price increases of EPDM with Schmitt. Id. at 26. Because De Roo denies that any of his meetings with Schmitt strayed beyond simple greetings and common things, the email from Schmitt to his bosses at Crompton is probative of whether De Roo and Schmitt ever discussed future EPDM price increases. Because the email suggests the two men also discussed issues relating to the U.S. market and DSM’s U.S. personnel, it is relevant to the issue of a price-fixing conspiracy that affected the U.S. EPDM market. The DSM defendants have not offered any specific reasons why this email would be prejudicial. It is not clear on its face how it would be any more prejudicial to the DSM defendants than many of the other pieces of evidence submitted in connection with the motion for summary judgment. Accordingly, although I conclude that the August 14, 2006 Schmitt email is relevant to the plaintiffs’ antitrust case, I reserve judgment on the issue whether the email will actually be admitted at trial. The DSM defendants are free to raise objections other than relevance then, b. Viets’s Handwritten Notes Dated April 17, 1998 The plaintiffs contend that DSM’s Nicholas Viets’s handwritten notes dated April 17, 1998, PX 108, are the informal minutes from a meeting he had at the Arabella Hotel in Düsseldorf, Germany with Bayer’s Pask and Enichem’s Cantoni. In his deposition, Viets identified the note as having been written during that meeting. He also decoded the note, stating that it refers to EPDM grades, EPDM prices, and common European customers. PD 13, Viets Dep. at 88-90, 102-17. Viets’ expense report indicates he had expenses at the Arabella Hotel, but does not indicate what the purpose of the visit was. PX 106. In addition, the Arabella Hotel bill is made out to a “Herrn Weissmann,” at DEE’s corporate address in the Netherlands. Id. No one by that name attended the meeting and, indeed, no one with that name was employed at DEE at that time. PD 14, Nederstigt Dep. at 147. The expense report for Pask indicates he traveled to Düsseldorf, but does not mention a business purpose for the trip. PX 107. The plaintiffs contend that Viets’s handwritten notes are relevant to the topics of discussion for the meeting at the Arabella Hotel meeting on April 17, 1998. Although Viets admits that he went to the meeting, he has no independent recollection of what occurred at that meeting. PD 13, Viets Dep. at 105,110-11. It is unclear how the discussion summarized in Viets’s note involved anything that could have had an effect on the U.S. EPDM market, but it is at least probative of the fact that high level executives were comfortable meeting with one another to share otherwise sensitive company information, such as customers and pricing. The plaintiffs would like the jury to draw an inference from that meeting that the defendants were engaged in collusive activity. The notes are probative of that issue because they help establish a fact from which the jury could infer that the EPDM executives were engaged in something other than legitimate business discussions. In the absence of the notes, the jury would be left to speculate about untoward activity on the basis of the assumed name on the hotel bill. Under the plaintiffs’ theory about the defendants’ collusive conduct, the notes are relevant to the issue whether there was an atmosphere of cooperation in Europe that ultimately led to price-fixing in the U.S. market. Accordingly, I decline to strike this evidence as irrelevant at the summary judgment stage, and will reserve judgment on its ultimate admissibility until trial. c. Gatto Memo Dated July 14, 1998 According to the plaintiffs, the memorandum sent to Crompton’s Daniel Shantz from Crompton’s Joe Gatto memorializes a meeting that Gatto and his Crompton colleague Gerald Fickenscher had with U.S. and European DSM representatives, Paul Hamm and Wim Donners, in Heerlen, Netherlands on July 13, 1998. Jt. Ex. 110. The memo relates that the parties discussed competitors’ strategies, DSM’s profitability, DSM’s worldwide expansion plans, DSM’s research and development, worldwide market share, and that “Donners indicated DSM will be looking to raise Europe prices in Q4.” Id. The parties agreed to meet again that October in London. Id. At his deposition, DSM’s Donners stated he had no memory of that meeting “at all.” PD 18, Donners Dep. at 122. Gatto and Fickenscher both asserted their Fifth Amendment privilege when asked about the meeting and refused to testify about it. Jt. Ex. 103, Gatto Dep. at 110; Fickenscher Dep., Jt. Ex. Ill at 29-34. Gatto’s memo appears to be the only record evidence of what occurred at that July 13, 1998 meeting between Crompton and DSM executives. Therefore, it is relevant to establish what topics were discussed and to show that the defendant executives had a consistent, working relationship in which they discussed expansion plans, EPDM prices, and research and development issues, and the like. With the proper foundation at trial, this document is potentially relevant to the question of the nature of the relationships that formed the basis of the price-fixing conspiracy. The DSM defendants have also not advanced a specific reason why this particular memo is prejudicial to them. Accordingly, I decline to strike this memo as irrelevant at this stage of the proceedings; the parties remain free to argue their positions at trial. d. Schmitt Emails dated July 24, 1996 and December 7, 2000 The plaintiffs seek to introduce the Schmitt emails dated July 24, 1996 and December 7, 2000, PX 53 and PX 233, to prove that executives for the settling defendants met and discussed things such as European EPDM price increases, worldwide capacity, and “pricing issues” in the U.S. market. Both emails contain the direction to destroy the email after receipt. For the same reasons discussed above, I decline to conclude that these emails are irrelevant to the plaintiffs case. I will address any specific arguments related to prejudice or other evidentiary issues that the DSM defendants wish to raise if and when the plaintiffs seek to introduce those emails at trial. e. Conclusion on the Admissibility of the Foreign Evidence The plaintiffs contend that the foreign evidence goes to establishing the existence of a global conspiracy that involved, in part, a price-fixing scheme for the U.S. EPDM market. The DSM defendants would have me exclude that evidence on the theory that evidence of foreign conduct can never be relevant to a price-fixing scheme to affect the price of U.S. EPDM. I decline to adopt such a bright-line rule. Furthermore, the case cited by the DSM defendants, In re Elevator Antitrust Litigation, 502 F.3d 47, 51-52 (2d Cir.2007) (per curiam), does not support across-the-board exclusion of the challenged foreign evidence in this case. In Elevator, the Second Circuit determined that the plaintiffs had failed to establish a plausible allegation of a U.S. price-fixing scheme on the basis of evidence that European authorities had initiated an investigation into a price-fixing scheme of the European elevator market. Id. at 51-52. The plaintiffs sought to connect Italian Antitrust Authority and European Commission investigations to the existence of an antitrust conspiracy in the U.S. elevator market, arguing that the market in elevators was global and that prices charged in Europe affected prices in the U.S. Id. at 51 & n. 6. The Second Circuit held that that allegation was not plausible because the plaintiffs had failed to sufficiently allege how the U.S. elevator market and the European elevator market were connected. Id. at 52. For instance, the Elevator Court noted that there were “no allegations of global marketing or fungible products;” no allegations “that participants monitored prices in other markets;” and “no allegations of the actual pricing of elevators or maintenance services in the United States or changes therein attributable to defendants’ alleged misconduct.” Id. In the absence of any “allegations of facts linking transactions in Europe to transactions and effects here,” the plaintiffs’ antitrust claims failed to survive the motion to dismiss plausibility standard of review. Id. Here, the challenged foreign evidence the plaintiffs seek to use at trial does contain those elements whose omission was of concern to the Second Circuit in Elevator. Taken in the light most favorable to the plaintiffs at the summary judgment stage, the record would support jury findings that EPDM is a fungible product, the participants of the alleged conspiracy monitored prices in other markets, and the price changes in the U.S. were affected by European prices. In other words, the evidence supports the finding that the European and U.S. EPDM markets are connected. Accordingly, the DSM defendants’ reliance on Elevator to exclude the foreign evidence is misplaced. For the time being, it does not appear that the plaintiffs are seeking to admit the foreign evidence to prove the existence of a separate European EPDM conspiracy in order to argue that the existence of a European conspiracy makes it more likely that the defendants engaged in a U.S. EPDM conspiracy. At trial, if it appears that that is the purpose for which the evidence is being offered, the defendants remain free to argue that the plaintiffs are seeking to use the foreign evidence for an improper purpose under Federal Rule of Evidence 404(b). Until then, I decline to exclude the foreign evidence on that basis. Accordingly, the motion to strike the foreign evidence is denied. 5. Joe Gatto’s Handwritten Notes Finally, the DSM defendants seek to exclude Joe Gatto’s handwritten notes appearing on eight different documents: PX 61, PX 89, Jt. Ex. 95, PX 83, Jt. Ex. 102, PX 99, PX 118, and PX 235. The DSM defendants argue that plaintiffs have failed to properly authenticate the handwritten notes pursuant to Federal Rule of Evidence 901(a), which requires “evidence sufficient to support a finding that the matter in question is what its proponent claims.” According to the DSM defendants, it is not enough for a Crompton representative to identify the handwriting as Gatto’s. The DSM defendants argue that, even if they conceded that Gatto wrote the notes, the plaintiffs have nevertheless failed to put forward sufficient evidence to support a finding that the notes accurately reflect what the plaintiffs are claiming. The plaintiffs contend that the notes have been sufficiently authenticated as Gatto’s by a record custodian from Crompton and because they were produced from Crompton’s own files during discovery. They do not address the DSM defendants’ argument that further authentication is necessary and instead contend that the notes are admissible under at least three exceptions to the hearsay rule. Because the European Commission Statement of Objections and the Crompton interrogatory answers serve to establish the same facts that plaintiffs seek to establish through the Gatto handwritten notes, I need not address the admissibility of those notes at this juncture, and will wait to take up the evidentiary issues at the appropriate time during trial. Briefly, however, on the issue of the authentication, Federal Rule of Evidence 901(a) requires that the proponent demonstrate, for purposes of admissibility, that there is “evidence sufficient to support a finding that the matter in question is what the proponent claims.” The plaintiffs claim the notes are contemporaneous notes taken by Gatto during his meetings with his alleged co-conspirators. The DSM defendants do not di