FALL 2019 TODAY’S GENER AL COUNSEL
Negotiating Second Request Discovery By John Murdock
ery few things can incite more stress and urgency for legal and compliance teams than a HartScott-Rodino Second Request. Notorious for their tight deadlines and high stakes, second requests require organizations to process, review and produce large quantities of documents in a matter of weeks or months. Failure to properly comply can result in significant delays to M&A proceedings. Decisions about what needs to be reviewed, how and when, must be agreed upon with regulators before review — either electronic or eyes-on — can begin. Negotiating these terms with the government is an exercise in strategy and
tact. This article outlines best practices for successfully agreeing upon terms with regulators at the outset of a second request. By outlining timing agreements, custodian scope, how technology assisted review (TAR) will be applied, and government oversight and reporting before review begins, e-discovery teams can ensure a smooth process. In a typical second request, two companies have announced a merger or an acquisition, and the Federal Trade Commission and/or the Department of Justice have 30 days to conduct an initial review of the deal. These agencies want to ensure that this proposed action will not cause harm to consumers; and if after the initial
review, they need more information, either agency may issue a second request for more data. The actual date for compliance is usually negotiated between the government and involved companies, as are the conditions for compliance. TIMING AGREEMENTS
Upon receiving the second request, the legal teams from both companies will need to quickly figure out what the government wants to review; assess how long it will take to collect, review, and produce the relevant materials and privilege log to the agency; and then try to negotiate a deadline that
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