Our latest post about HSR Second Requests discussed the timing of the HSR Second Request process. The success of that process can boil down to several key considerations and steps that your organization can take to support the process. In this post, we’ll discuss five key considerations, and an additional “bonus” consideration will be highlighted in our next post.
Five Key Considerations for HSR Second Requests
Here are five key considerations for success in HSR Second Requests projects:
Consideration #1: Early Call with Counsel
Once you’ve received an HSR Second Request, one of the first steps that should be undertaken is an early call with outside counsel who is experienced in antitrust matters and the Second Request process to review the specifications. Experienced counsel will understand what the agencies are looking for and how best to respond to each component of the Second Request and the type of personnel needed to give a fulsome response, so this is an important first step.
Consideration #2: Roles & Responsibilities
After coordinating with counsel, it’s important to identify roles and create a responsibility workflow with clearly defined paths for each of the roles. That not only sets expectations up front, but it also enables you to quickly follow-up with the appropriate person to address deficiencies or mistakes. Examples of roles and responsibilities include:
- Data Specs: Economists or data analysts, as they best understand the data.
- Document Specs: eDiscovery provider, as they best understand the discovery workflows.
- Narrative Responses: In-house and/or outside counsel (often, both are involved to combine the knowledge of the company with the experience in responding to Second Requests).
Consideration #3: Obtaining the Data and Documents
Like any discovery effort, you need to find out which custodians have relevant data and documents, what materials they have, and when and how you can obtain it. Given the accelerated time frame, the ease of doing so may depend on the strength of your information governance program and whether your organization has a current data map. Challenges here can include:
- Third Party Hosted Data: There can be some constraints as to what can be collected outside of the organization and how quickly, so it’s best to prioritize those data sources to provide time to work through that process.
- Shared vs. Local: Some data and documents may be located on servers and centralized, while others may be on localized workstation drives or in local filing cabinets in-office or even with remote workers.
- Foreign Language: Some data and documents may be kept overseas and/or may be in a foreign language, so you need to allow extra time for collection and possible translation.
- Last Minute Unexpected Sources of Data: Despite your best efforts, some sources of data and documents may slip through the cracks, so you need a process in place to turn those around quickly should they be identified.
All of these are challenges an experienced eDiscovery provider – one with experience supporting Second Requests – can help your organization address.
Consideration #4: Data Ingestion through Data Production
Obtaining the data and documents is just the beginning. As is the case with any discovery process, the data and documents must be ingested into a platform for analysis and review, then analyzed and reviewed to determine which are responsive to the Second Request, then produced. It’s important to build in enough time not only for document review but also for production of the information in a manner that can be easily understood by the requesting agencies.
The amount of data and documents is often too large and the time frame often too short to rely on manual procedures, so maximizing automation of the workflow is key to meeting your Second Request deadlines.
Consideration #5: Timing Agreement
One more consideration is whether to pursue a timing agreement with the regulators. The timing agreement can benefit the parties involved in the transaction as well as the regulators, who often are constrained to review all the information and documents received in response to a Second Request within the normal second waiting period time frame. The benefit to the parties is that the regulators often commit to a smaller number of custodians or other modifications if a timing agreement is reached. Potential modifications (such as number of custodians and scope of search terms) should be successfully negotiated as part of acceptance of a timing agreement.
The DOJ’s Model Process & Timing Agreement is very detailed and includes procedural agreements regarding closing of transaction, document productions, Second Request compliance and substantive communications between DOJ and the parties, including white papers, interviews/depositions, etc. FTC timing agreements tend to be less detailed. It’s important to understand what each agency requires in a timing agreement to be able to successfully negotiate each.
Second requests can be overwhelming and, as we’ve already noted, there’s a need for speed in responding to them quickly. As a result, your organization will likely need to mobilize a team of experts, comprised of in-house subject matter experts and outside experts experienced in responding to Second Requests, from a legal, data, and document standpoint.
There is no time to “learn as you go” with Second Requests – you need expertise from the start and all the way through the process!
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