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 the first two of the eight major issues raised by the Revised Model Second Request and White Paper: (1) the duty of candor and competence and (2) preservation and data holds.
- Duty of Candor and Competence
The overarching theme throughout the White Paper is how the Revised Model Second Request attempts to encourage more candor and communication from the merging parties’ counsel. As counsel, the more information you have about your data set, the more confidently you can address problems and propose solutions to the DOJ.
The competence under ABA Model Rule 1.1, Comment 8 states:
To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with
relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.
Citing both Comment 8 to the ABA’s Model Rule 1.1 and the Sedona Conference Cooperation Proclamation, the White Paper stresses the importance of candor, communication, and cooperation throughout the Second Request process:
The breadth of antitrust investigations requires both the Division and the producing party to engage in open and forthright dialog to identify the information necessary to resolve our investigations. . . . Effective communication requires not only candor, but also a complete understanding of the technology, platform, or data sources that are the subject of the negotiation.
Such communication and candor requires not only an understanding of the client’s corporate structure, but also deep knowledge of its “technology, platform and data sources.” Partnering with an electronic discovery expert can enhance your ability to communicate effectively with the Antitrust Division. Such an expert can help with such topics as: describing your client’s data map and systems, developing and being able to communicate an efficient, reliable, and defensible TAR, and how to effectively produce to the Division. If, as Ms. Greer posits, “Division and counsel should take as much care in describing and addressing data and technology as they do in discussing complex legal theories,” counsel should want to partner with an eDiscovery expert that can do just that, while counsel focuses on the legal theories that will advance the merger.
- Preservation and Data Holds
One of the most concerning trends, according to Ms. Greer, is the increase in intentional destruction of documents prior to and during an investigation. The White Paper reiterates the importance of preserving data and information beginning “no later than the date on which the company learns of the preliminary investigation” and encourages the parties to discuss preservation with Division staff as early in the process as feasible. Communication, yet again, is at the center of the duty of preservation.
The Division appears to understand that certain kinds of information, such as dynamic content or data, is much more costly and difficult to produce. In such cases, all parties would benefit if the issue is raised with Division staff as soon as possible, and to have technical people involved from the beginning.
What this means is counsel should have a plan for the establishment of preservation holds and custodian data mapping in place at the onset of a Hart-Scott-Rodino (“HSR”) filing. This will aid counsel tremendously in dealing with the Division’s scrutiny regarding preservation. Counsel should consider partnering with an expert who understands the various systems of the client and who can ensure that “company technology initiatives or upgrades that may impact the availability of potentially relevant documents and information” are documented and dealt with ahead of time. This protects clients from surprises that weaken its negotiation leverage with the Division.
Please watch for next week’s post which will include overviews of (1) developing an e-discovery plan and (2) understanding the small technical changes to the Revised Model. We will provide some e-Discovery nuggets to assist teams through these two steps in the Second Request process.
*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.