Second Requests: e-Discovery Tips for Complying with the Revised Model Second Request, Part 1 of 5

DOJ Antitrust Division’s December 2016 Revised Model Second Request: e-Discovery Tips for a Smooth and Compliant Response

The DOJ Antirust Division released its Revised Model Second Request in December 2016 which made both substantive changes and addressed e-discovery protocol and production concerns.  Tracy Greer, Senior Counsel, Electronic Discovery of the Antitrust Division of the U.S. Department of Justice, elaborated on these changes in her white paper, Avoiding E-Discovery Accidents & Responding to Inevitable Emergencies:  A Perspective from the Antitrust Division” (“White Paper”) . On June 21, 2017, Ms. Greer spoke on a panel at a Women in e-Discovery meeting in Washington, DC, about the use of predictive coding and the filing of Second Requests where she discussed the changes to the Model and points made in her White Paper.* 

                   

Of the approximately 1,800 merger transactions in 2015, only about 2.7% of them actually receive a Request for Additional Information or “Second Request.”  The complexity, scope, timing, and extensive costs of responding to Second Requests often raises challenging discovery problems.

This blog series discusses the most important of those challenges, as well as presents solutions throughout the process to help reduce cost and improve efficiency, compliance with the rules, and the odds of completing a successful merger.

Each installment of this series will discuss one or more of the eight major issues raised by the White Paper:

  1. Duty of Candor and Competence
  2. Preserving Data and Data Holds
  3. Developing an e-Discovery Plan
  4. Technical Issues
  5. Claw Back Systems
  6. Establishing Client’s Burden
  7. Submitting a Sample Production
  8. Using Technology and TAR

Please watch for Part II which will include overviews of (1) Duty of Competence and Communication with DOJ in Second Requests, and (2) data preservation and data holds.  We will provide some e-Discovery nuggets to assist teams through these two steps in the Second Request process.

 

Candace Smyth is Counsel and Director of Client Relationships at Tanenholz & Associates PLLC.

 

*Note: In her White Paper, Ms. Greer makes clear that “[t]he views expressed in this paper are [her] own and do not necessarily represent the views of the Antitrust Division or the Department of Justice.” Ms. Greer reiterated the same at the panel discussion in June.

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