The Antitrust Division of the Department of Justice (DOJ) recently issued an updated Model Second Request for parties to use in responding to Second Requests issued on or after December 12, 2016.
The DOJ recently published an updated Model Second Request (Model) (formally known as a Request for Additional Information and Documentary Material), that applies to all Second Requests issued on or after December 12, 2016. The Model is intended to make it easier for parties to respond to, and for the DOJ to review, the information sought in a Second Request. The major changes, which are geared toward better efficiency in the process, include:
Improved organization by grouping requests by subject matter and eliminating duplication.
Early requests to identify key people and information to help the DOJ understand the transaction at the outset and its impact on competition.
In addition, the Model has new instructions regarding e-discovery that better reflect current practices and that the DOJ stated seek to balance discovery burdens with the DOJ's need for information, including instructions for the use of:
Predictive coding.
Search terms.
Generally, each Second Request requires a search of an entire company for documents and data that the DOJ identifies as relevant to a merger investigation. Companies are encouraged to propose modifications, which the DOJ must agree to in writing to become effective.