The Toughest eDiscovery Projects in the World

What are the world’s toughest eDiscovery projects? Those who know might just nominate Hart Scott Rodino (HSR) Second Requests, known for running a special kind of chill down the spines of attorneys charged with handling ESI.

Though a chance to shine and deliver value, HSR Second Requests—which occur when the FTC or DOJ Antitrust Division determines they need additional information to investigate antitrust implications of a proposed merger or acquisition—are some of the highest pressure, shortest turnaround, and deepest impact eDiscovery projects possible. So, what’s so special about HSR Second Requests?

Here are 6 eDiscovery realities:

1. The Clock That’s Ticking is Your Own

Once an HSR Second Request is issued, your transaction is effectively on hold, with each passing day potentially opening the door to a hostile takeover bid, shareholder disapproval, or simply changing economic factors that make the transaction less attractive. The pressure to review and produce quickly is not coming from the FTC or DOJ, from which you may request additional time as desired. It’s coming from your client and their M&A counsel, both of which are understandably eager to close the deal before risks emerge.

2. Proportionality? What’s That?

Federal Rules of Civil Procedure don’t apply to HSR Second Requests, so your well-practiced 26(f) negotiation strategy will be of little help here. Think of it as asymmetrical to the extreme. The FTC and DOJ are serving the public trust, not a litigation client, and they will demand information on as limited (e.g., a particular product, channel, or geography) or as broad a basis as they deem necessary to fulfill their duties. Calling a broad ESI request unduly burdensome will likely fall on deaf ears.

3. Overproduction is Counterproductive

The math here is simple: The more data you produce, the more the FTC or DOJ needs to review; the longer they review, the longer your transaction is delayed. Productions need to be complete, but conducting an undisciplined review that leads to a data dump is harmful to your cause. Prioritizing and tracking your review on an issue-specific basis can help ensure you’re finding what you need and responding thoroughly to specific requests, without boiling the ocean in the process.

4. The Data Comes in Stages…

It’s particularly rare in an HSR second request to have all of the ESI you need up front, ready to be analyzed and reviewed collectively right from the start. No matter how thorough and organized you may try to be, such matters commonly involve sporadic, ongoing collections and at least some degree of “scope creep.” While predictive coding can be your best friend here, rigid TAR 1.0 methodologies simply won’t cut it. Look for a flexible, TAR 2.0 approach that can easily absorb rolling data loads without disrupting your workflow.

5. …and Goes in Phases

Responses to HSR Second Requests may be produced in multiple phases. This gives the FTC and DOJ a chance to review preliminary information while your review is ongoing and even provides the possibility of an approved merger based on the Phase One production alone. This means your prioritization strategy is even more critical, as you must identify and prioritize your review of the right Phase One data. It also means you need to be able to segment data intelligently into discrete groups for confident workflow management from phase to phase.

6. Issues are a Big Issue

With so much riding on your efforts in an HSR Second Request, there’s no room for hesitation, inconsistencies, or oversights. This makes issue-based review management essential: intelligently grouping requests into workable issues, assigning issue based experts for consistent coding, and tracking predictive coding against specific issues.

Using an eDiscovery platform that shows your goals, progress, and performance levels on an issue-specific basis lets you spot potential weaknesses and improve training and performance to ensure a complete and timely HSR2R response.

Hal Marcus

Hal is the Director of Product Marketing for OpenText Discovery & Security. A licensed attorney, Hal practiced as a Wall Street litigator before commencing a career in tech that now spans over 20 years. He writes about artificial intelligence—anyone named Hal is bound to be interested in AI—and related technologies in the realms of eDiscovery, cybersecurity, compliance, and information governance.

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