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.*
Part 1 of this blog series provides a general overview of the Revised Model Second Request and Part 2 discusses the duty of candor and competence, and preservation and data holds. Part 3 details developing an e-Discovery plan and additional technical issues that were changed in the Revised Model. Part 4 covers privilege and clawbacks.
In our final blog of the series, we address: (1) submitting a sample production and (2) using technology and technology assisted review (TAR).
Instruction 10 of the Revised Model Second Request makes clear that regardless of the format in which the data is produced, it must be produced “in a reasonably useable compilation that will allow the Department to access the information it contains.” Furthermore, “[p]roducing a database or dataset in its entirety often does not satisfy this requirement.” This can prove especially tricky when providing enterprise, social media, and collaborative work environment datasets and databases.
The Division “strongly encourages” providing a sample production to make sure it is in the proper format and can be accessed by Division staff. Test the production ahead of time internally, submit a sample to DOJ, and confirm that the firm handling your data and review can articulate, in detail, the requirements for access and production. This can save time, resources, and prevent a strained relationship with Division staff.
Use of Technology and/or TAR.
Instruction 4 of the Revised Model Second Request requires that
[b]efore using software or technology (including search terms,
predictive coding, de-duplication, or similar technologies) to
identify or eliminate documents, data, or information potential
responsive to this Request, the Company must submit a written
description of the method(s) used to conduct any part of its search.
TAR has been used in approximately 35 Division cases so far. During the WiE panel discussion, Ms. Greer stated that she believes that parties are saving money through their use of TAR and other data techniques.
For any process that relies on TAR, counsel must include:
- confirmation that subject-matter experts will be reviewing the seed set and training rounds;
- recall, precision, and confidence-level statistics (or an equivalent); and
- a validation process that allows for Department review of statistically-significant samples of documents categorized as non-responsive documents by the algorithm.
Revised Model Second Request, Instruction 4.
Muddying the waters even further on TAR, the Federal Trade Commission (FTC) issued a revised Model Second Request in August 2015, which while also asking for the TAR processes and analyses, does not require disclosure of nonresponsive documents. Counsel will need to prepare for civil litigants and regulators citing to the DOJ Revised Model in their requests to access both nonresponsive documents used to train TAR algorithms and documents tagged nonresponsive by a TAR algorithm. Disclosing nonresponsive data increases the risk that confidential proprietary information may be disclosed. In filing the response to a Second Request, counsel needs to understand e-discovery platforms, technology, the use of TAR, and even better, implement a team of discovery attorneys that is well-versed in how to use that technology during the review process. Seasoned discovery attorneys are going to save money and time, and help minimize the potential risks involved in the use of TAR.
Our series has covered eight major issues raised by the DOJ Antitrust Division’s Revised Model Second Request as well as the Division’s concerns regarding productions and technology. In the first blog, we looked at how the Division views counsel’s duty of candor and compliance and the importance of data preservation and holds in anticipation of a Second Request. The second installment focused on having an e-Discovery plan in place before collection begins, and we reviewed some of the technical changes that the Division made. In the third installment, we reviewed privilege and claw-backs and the client’s burden in production to the Division. Finally, with this blog, we complete the series with an overview of the Division’s modification to how TAR should be used as well as the Division’s request for a sample production prior to the final one. In conclusion, it is clear the Division seeks communication and transparency throughout the Second Request process. With this in mind, the Division seems to expect counsel to increase its use of TAR and technology to narrow the universe of data production while at the same time leaving flexible options in place with regard to the algorithms and processes used to get there.
Please let us know if we can help to answer any questions as to the Revised Model, and how our firm may assist you with your next Second Request.
*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.