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.*
Today, we review two additional issues raised by the Revised Model Second Request and White Paper: (1) developing an e-discovery plan and (2) understanding small technical changes to the Revised Model.
Developing an e-Discovery Plan
As part a counsel’s duty of candor and competence, parties should develop a plan on how to execute custodian interviews and data collections, organize data for review, and decide staffing and technology issues. All of these issues, and more, should be discussed with the Division.
In the June WiE panel discussion, Ms. Greer emphasized the importance of having a “Timing Agreement” in place between counsel and the Division. Such an agreement gives the Division time to review the data, reduces the need to ask for a restraining order or declaratory judgment, and also reduces the odds that the DOJ or FTC will file suit. A Timing Agreement adds certainty regarding depositions, provides predictability regarding scope, limits custodians, provides timelines for production, and helps determine the parameters of your support needs. Having a plan and communicating it with the Division and/or entering into a Timing Agreement can solve many of the “stop and race” drills of the Second Request process.
Partnering with a discovery firm to facilitate and follow up on tasks as they relate to the discovery process and an e-discovery plan relieves counsel of those burdens so that they can concentrate on the research, writing, strategy, and other major facets of the case. For example, the Revised Model Second Request Instruction 5 requires companies to identify assistants and predecessor employees to the identified custodians, including “common or shared databases or data sources maintained by the Company that are accessible by each custodian, their predecessors, or assistants.” This may be a time-consuming process that requires much communication with the client and data experts who will need to assist in mapping and retrieving data from multiple data sources.
Having data mapping issues resolved at the onset of a Second Request decreases the chances of issues arising later in the process. Such early involvement of discovery counsel with the substantive issues of the merger will make its later advice on technical items like key word searches and TAR modeling much more effective and efficient.
An e-discovery partner who is well-versed in the Second Request technical specifications can help navigate these issues for M&A counsel:
- Production Format: No more ASCII productions or FTP productions.
Counsel must make sure that any new Second Request productions are submitted in the Unicode format, not ASCII. This is primarily due to the increasing number of foreign language documents that comprise these productions. The Antitrust Division now uses Relativity for all new investigations and cases. This streamlines document import and review, but also requires Unicode productions exclusively.
Additionally, the White Paper further emphasized the Antitrust Division’s discouragement of file transfer protocols (FTP) sites. The Division strongly prefers physical media production, i.e., hard drives, CD-Roms, or DVD-Roms. The Antitrust Division’s Standard Specifications for Production of ESI and/or Hard Copy as Images and Text provides more detailed technical production information.
- Graphical Images
The White Paper mentions the production of an increasing number of graphical images (e.g., logos and social media links) as separate records that make the productions and cost of processing much larger than it needs to be. Such embedded objects may be produced as a single document, thus reducing the cost of production.
New and Revised Definitions included in the Revised Model.
Under the Revised Model, the term “document” was revised to include social media accounts, such as Facebook, Twitter, and instant messages. Also included in the revised definition of “document” are “collaborative work environments.”
“Collaborative Work Environments”
This definition expands the term “document” to include “Microsoft Sharepoint sites, eRooms, document management systems (e.g., iManage), intranets, web content management systems (CMS) (e.g., Drupal), wikis, and blogs.
The Antitrust Division also added a definition for “data dictionary”, which aims to specify the requirement of listing the size, description, field names, format and length of each field, and the primary key for database tables. According to the White Paper, the addition of “data dictionary” helps “to identify the information needed about relevant databases.”
Next week’s post will include overviews of (1) privileged documents and claw backs and (2) establishing the client’s burden.
*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.