Productions in the Electronic Age

• Pages: 341-356

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CHAPTER VIII

PRODUCTIONS IN THE ELECTRONIC AGE

Reliance on communication and document storage via electronic

platforms has greatly increased over the last five years. Today, the

principal means for responding to a Request for Additional Information

and Documentary Materials (second request) or civil investigative

demand (CID) from one of the agencies is through an electronic

production. This chapter reviews the process of producing documents in

electronic format in response to a second request or CID. Further, it

provides a roadmap for effectively navigating issues that may arise when

submitting electronic productions to the agencies.777

A. First Steps

1.

Document Holds

Counsel must institute a “document hold” upon receiving a second

request, CID or document hold letter (or call) from the Federal Trade

Commission (FTC or Commission) or U.S. Department of Justice (DOJ

or Antitrust Division). Implementation of a document hold requires

instructing potential custodians to refrain from deleting any electronic

material from their desktop, inbox, or any shared drives that may be

responsive to the agency’s review. The age of electronic productions has

heightened the complications attendant to document holds. With hard

copy documents, counsel only needed to ensure that her client did not

discard or destroy responsive materials. Coordinating an electronic

document hold is far more complex due to automatic deletion policies,

shared drives and multiple-use computers and laptops. E-mail,

specifically, creates many problems. Many businesses provide their

employees with a finite amount of memory for their inbox. These firms

likely require the deletion of materials that exceed the permitted size or

that are older than a certain date. Given policies of this nature, counsel

777. As discussed in Chapter VII.A.5, staff at the U.S. Department of Justice

and the Federal Trade Commission often grant significant modifications

during second request negotiations. Counsel must seek appropriate

modifications regarding production of electronic files, as these limitations

may save the client significant time and resources.

342 The Merger Review Process

must not only advise potential custodians to retain all potentially

responsive electronically stored information, but must also evaluate the

client’s general archiving and deletion policies to ensure that no

potentially responsive documents are deleted after the hold is

implemented.

Counsel should become familiar with the client’s document retention

policies before responding to hold-related questions from the reviewing

agency.778 If counsel has not previously worked with the client on a HSR

filing, it is important that counsel obtain this information early, as it will

also be particularly useful when responding to an agency’s second

request or CID. The agencies may request documents going back five (or

more) years. In such instance, if a client regularly deleted all non-

archived e-mails after two years, counsel would need to relay this

information to the reviewing agency in a timely manner.779 Further, the

agencies’ model specifications typically request a company’s document

retention policy in writing.780

Finally, counsel should endeavor to execute the document hold

process in a repeatable and defensible manner. In particular, a document

778. See Chapter VII.C, which stresses the importance of preparing for a

second request before it is issued. Effective preparation will help mitigate

issues that are likely to arise when preparing to collect, review and

ultimately produce large volumes of electronic files. See also Chapter

VII.A.3 (discussion on preparing for second request negotiations).

779. See Chapter VII.A.5.g (discussion on limitations that are routinely

granted in relation to electronically stored information).

780. For example, the Antitrust Division’s model second request calls for the

parties to “[s]ubmit documents sufficient to show and, to the extent not

reflected in such documents, describe in detail the company’s policies

and practices relating to the retention, storage, deletion, and archiving of

electronic data, including e-mail.” U.S. Dep’t of Justice, Request for

Additional Information and Documentary Material (Dec. 14, 2006) (DOJ

Model Second Request), available at http://www.justice.gov/atr/

public/220239.pdf. The FTC’s Model second request is very similar,

calling for the parties to provide “documents sufficient to show and, to

the extent not reflected in such documents, describe in detail the

company’s policies and procedures relating to the retention and

destruction of documents.” Fed. Trade Comm’n, Model Request for

Additional Information and Documentary Material (June 2010) (FTC

Model Second Request), available at http://www.ftc.gov/bc/hsr/

introguides/guide3.pdf.