Negotiating Second Request Discovery

By on September 19, 2019

Executive Summary of an article written by
John Murdock, FTI Consulting

Few things can incite more urgency for legal and compliance teams than a Hart Scott 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 short time. Failure can result in significant delays to M&A proceedings. Upon receiving the second request, 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 it and then try to negotiate a deadline that works within those constraints.

Along with the timing agreement, it is important to agree which documents must be produced from which custodians, during which time period. The government wants as much time as possible to review the data. The last thing it wants is to receive all documents on the same day, right before the negotiated deadline. Some of the government’s TAR guidelines are negotiable; others are not. E-discovery teams will need to come into negotiations armed with full knowledge of how predictive coding software and statistical reporting works, and understanding the government’s guidelines in advance of the negotiations can help.

The high-stakes second request process is growing more complex due to growing data volumes and diversity, TAR technology usage and new regulatory guidelines. Successful negotiations will determine the speed at which the e-discovery team can meet the certification, and ultimately streamline a typically burdensome and expensive exercise.

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