The question, “Have you worked on a second request?” is often met by a sigh or a knowing glance and accompanied by a story that shows herculean strength or the agony of defeat. Or both. Because of the sheer number of documents that require review in a short period to an exacting standard, everyone who has worked to support law firms on a second request, as a matter manager on the client side, as a project manager for data or review vendor or as a reviewer has a story.
Crucially, for corporate clients and their legal teams, the outcome carries significant repercussions and, therefore, requires a high degree of expertise and precision in effectively responding to the Federal Trade Commission (FTC) or the Antitrust division of the Department of Justice (DOJ).
What is a second request?
When a company is going through a merger or an acquisition, the FTC or the antitrust division of the DOJ, depending on who has jurisdiction over the matter, goes through a very detailed and thorough review to make sure that there are no antitrust concerns. The first step is producing a limited number of relevant documents, often called a first request. From there, the government will assess whether it will approve or disapprove the merger or acquisition or needs more information. If it requests additional information, this is called “the second request.” A corporation usually has two months to respond to and produce accompanying evidence for the second request, which means a large volume of emails and other documents generated by the business have to be reviewed and categorized for production – quickly.
Navigating the intricacies of Second Request Document Review is a crucial competency for corporate legal departments, law firms, and litigation attorneys. This process calls for a meticulous approach to prevent costly legal pitfalls and ensure compliance with antitrust laws.
This blog will provide a blueprint for a Second Request Document Review by outlining the essentials and actionable best practices.
The Blueprint
1. Preparation
Preparation is critical for a successful Second Request Document Review. Highly orchestrated planning supports complying with requests while maintaining the transaction’s momentum.
- Data Collection
The client and counsel will work together to structure and organize the information needed to respond to the second request. Once they know where the information is, they will work with their collections vendor to collect data from various custodians.
- Define review population
Once the data collection is complete (or complete enough), the data vendor defines the appropriate review population by working with counsel and the client on early case assessment activities and search term checks. Because of the time constraints, it may be necessary to start a review of some of the documents before all collections are complete.
- Protocol
From there, counsel should create a document review protocol to train the document review team. The document review team will reference the protocol, accompanying queries, and calibration logs for guidance during the review. Depending on how the review is structured, there may be a need to have several document review protocols based on the timeframe, custodians’ seniority, and other essential factors.
- Time management
A considerable part of the success of a second request project is time management. A best practice is having a timeline with built-in buffers.
2. The Team
The ability of a document review provider to quickly assemble the right size team with the ability to scale as needed is critical. Additionally, an internal management structure that divides the team into small groups led by an experienced team lead allows for accountability and agility. Moreover, to ensure an efficient review process, the project manager must have up-to-date information about the status of the various workflows at any given time. That is why the lead project manager must delineate the roles and responsibilities of the project team from the outset. Finally, having an offshore review team that can provide round-the-clock resources allows for maximum efficiency and cost savings.
3. Tech Tools
Analytics and artificial intelligence (AI) are essential to ensure the document review is as efficient as possible. Using these tools reduces the number of documents that attorney teams look at and could include the following.
- Propagation of coding to duplicate documents and lesser included email threads
- Predictive coding methods such as Technology Assisted Review (TAR), Continuous Active Learning (CAL)
- Generative AI for privilege logs and to summarize documents
4. Workflows
Paying close attention to workflow and process is critical once you have the people and technology in place. The project team needs the agility to deploy different workflows using the tools for different stages of the review as required. Here are just some questions that are relevant as the team considers workflow.
- Which teams are working on the first-level review? Where are they located? Are there documents that do not need review?
- A less-than-thorough review can jeopardize the entire process, so it is essential to establish cross-checks and validation steps. What types of QC checks are there?
- How much QC is counsel going to do?
- Will we use statistically significant sampling methods to ensure the review is on the right track?
- Ensuring the confidentiality of sensitive documents is paramount. Robust protocols must be in place to guard against exposure. Are we able to use AI to identify HIPAA and PII?
- Are there redaction propagation tools for HIPAA and privilege redaction that ensure consistency?
- Ensure that privilege logs are deduped in the first instance to ensure consistency. Do we need to generate an accompanying names list? Do we need to have titles for the individuals that are listed? Could we limit the titles to just those working for the client?
- Is there going to be one production or many rolling productions? How often?
5. Communication and Collaboration Win the Day
While it may seem obvious, the element that ties together these best practices is the imperative of consistent communication. The dynamics between corporate legal departments, law firms, and litigation attorneys are to be nurtured, as clarity in information-sharing can be the difference between a streamlined review process and one marred by confusion and an outcome that is less than desirable.
The team should ensure the communications plan hits all levels, including but not limited to upper management, the client, the review team, and counsel.
Conclusion
Second Request Document Review, while demanding, is manageable. Legal professionals can successfully traverse this often-rocky terrain by having an approach and an experienced legal and support team that embraces preparation, addresses challenges proactively, leverages the right technology, fosters open communication, and should always be a story with a happy ending.
