Appendice 9. With Second Requests

• Pages: 1-14

APPENDIX 9 9-1

Identifying Privileged Material And

Maintaining Privilege When Complying

With Second Requests1

Identifying privileged material and maintaining the privilege can be

like walking a tightrope when responding to U.S. Department of Justice

and Federal Trade Commission requests for additional information or

documentary material (Second Requests A deficient privilege index

gives the agencies a perfect excuse to “buy time” and reject or “bounce”

a Second Request submission, thereby delaying the start of the second

HSR Act waiting period until the index is deemed in full compliance.

This extends the time within which staff can conduct its investigation

and delays the closing of the entire transaction.

The problems of balancing compliance with the need to identify and

shield privileged documents are further complicated by the fact that

staffing for these matters (particularly at the document review and

privilege index stages) typically involves legal assistants and fairly junior

associates. These team members may not be as conversant with privilege

principles, or the agencies’ current treatment of privilege issues, as other

more senior personnel. Add to this the numerous procedural questions

regarding the identification of privileged documents and the creation of

indices reflecting privileged material and it becomes apparent that

strategies and procedures useful in reviewing privileged materials for

production are needed.

This appendix will provide general guidelines for situations or

documents that commonly arise when determining privilege in producing

1. Based substantially on the following article: C. Mohr, Identifying

Privileged Material and Maintaining the Privilege when Complying with

Second Requests, Antitrust (Spring 1994). Note that this appendix is not

intended to be a comprehensive guide to privilege or a compilation of

relevant case law; rather, it is intended to cover general themes and

provide an overview to the reader. Nor is it intended to deal with the

issue of privilege for investigations conducted by antitrust agencies

outside of the United Sttates