{"id":65240,"date":"2021-07-16T14:03:22","date_gmt":"2021-07-16T18:03:22","guid":{"rendered":"https:\/\/www.consilio.com\/?p=65240"},"modified":"2022-10-06T09:45:20","modified_gmt":"2022-10-06T14:45:20","slug":"between-a-clock-and-a-hard-place-ediscovery-for-second-requests","status":"publish","type":"post","link":"https:\/\/www.consilio.com\/between-a-clock-and-a-hard-place-ediscovery-for-second-requests\/","title":{"rendered":"Between a Clock and a Hard Place: eDiscovery for Second Requests"},"content":{"rendered":"

The majority of eDiscovery work takes place in the context of litigation, but a significant amount of it also takes place in the context of regulatory agency investigations. Among the most challenging types of such investigations are second requests. Although the available ESI and eDiscovery tools are the same, handling eDiscovery for second requests is different from handling eDiscovery for litigation in some ways worth discussing.<\/p>\n

What Are Second Requests?<\/h2>\n

Under the\u00a0Hart-Scott-Rodino Antitrust Improvements Act of 1976<\/em>,\u00a015 U.S.C. \u00a7 18a<\/a>, the parties to certain mergers or acquisitions must notify the\u00a0Federal Trade Commission (FTC)<\/a>\u00a0and the\u00a0Department of Justice (DOJ)<\/a> before the intended merger or acquisition can be completed. The parties must then wait a period of time while the agencies review the proposed deal for any antitrust concerns, typically 30 days.<\/p>\n

During this review period, parties have the opportunity to provide initial materials to aid the agencies in their review\u00a0voluntarily<\/a>\u00a0or through response to a \u201cVoluntary Request<\/a><\/em>.\u201d This initial request is focused on gathering essential product or service information, market and competitor information, deal and analysis information, and company information.<\/p>\n

Based on their review of the initially provided information, the agencies can choose to request additional information and documentary materials pursuant to\u00a015 U.S.C. \u00a7 18a(e)(1)(A)<\/a>:<\/p>\n

\n

The\u00a0Federal Trade Commission\u00a0or the Assistant Attorney General may, prior to the expiration of the 30-day waiting period (or in the case of a cash tender offer, the 15-day waiting period) specified in subsection (b)(1) of this section,\u00a0require the submission of additional information or documentary material relevant to the proposed acquisition<\/strong>\u00a0. . . .<\/em>\u00a0 [emphasis added]<\/p><\/blockquote>\n

This is known as a \u201cSecond Request<\/a><\/em>,\u201d and it is much more extensive than an initial request. Issuance of a second request stops the clock on the waiting period until substantial compliance when the second request<\/a>\u00a0is achieved, at which point a new waiting period for final review begins.<\/p>\n

What Do Anti-Trust and Merger Investigation Second Requests Ask For?<\/h3>\n

As noted above, second requests are much more involved than initial ones. The DOJ\u2019s Model Voluntary Request Letter<\/a>\u00a0makes just 9 requests for essential information and documents, while the\u00a0FTC\u2019s Guidance for Voluntary Submission<\/a> makes only 8. In contrast, the DOJ\u2019s Model Second Request<\/a>\u00a0makes 39 requests for information and documents, many with multiple sub-parts, and the\u00a0FTC\u2019s Model Second Request<\/a>\u00a0makes 29 requests, many also with multiple sub-parts:<\/p>\n

DOJ Model Second Request Topics<\/u><\/h4>\n