So, you’re facing the complexities of a large-volume, high-stakes, short-deadline second request and wondering if a technology-savvy strategy can save the day? Culling a massive store of data while under a strict time frame is a huge undertaking, especially when you’re dealing with a second request and a corporate merger is on the line.
Recently, Lighthouse assembled a panel of antitrust experts at our 2019 Antitrust Leadership Panel to discuss exactly this scenario. Moderated by Bill Mariano, attorney and Lighthouse VP, our panel comprised the best and brightest minds in antitrust from two of the leading firms in the country: Christian Mahoney, Kenneth Reinker, and Larry Malm from Cleary Gottlieb and Corey Roush, Gorav Jindal, and Haidee Schwartz from Akin Gump. The panel discussed three primary subject areas: the role of technology, the time and cost involved in second requests, and evolving for the future.
In the first of this three-part blog series, I will highlight the main points from the panel’s discussion on the role of technology when you’re responding to these typically overwhelming and always expansive requests from the government.
“Second requests are essentially like litigation requests on steroids. The equalizing effect in order to be able to review all of those materials in a reasonable fashion is technology."
- Gorav Jindal, Akin Gump, 2019 Antitrust Leadership Panel
Technology is the Equalizing Effect.
With multiple factors at play that make second requests different from general litigation such as considerations surrounding statutory requirements, financing, shareholders, and disruption to the business, Jindal likened second requests to “litigation requests on steroids.” From basic email threading and deduplication to more sophisticated AI and predictive coding, technology is literally the “equalizing effect” providing the ability to efficiently and quickly review these pumped up litigation requests, benefiting both the producing party, as well as the government on the digestion side.
Negotiating Usage of Technology Has Challenges.
Since many clients are not as accustomed to leveraging technology in second requests as they are in general litigation, negotiating and explaining the options for usage of technology can be tricky. In second requests, one party is responsible for all of the productions, so it’s an “asymmetrical” negotiation such that your leverage isn’t as strong, according to Mahoney. Technology negotiations can also yield different results depending on if you’re dealing with the DOJ or the FTC, or even depending on which staffer is on the case. While the FTC tends to be more open to different options, oftentimes both agencies go into negotiations with a lack of understanding of the technology being proposed, resulting in unreasonable requirements on the producing party.
Technology Can Quickly Cull Down the Data.
Once you’ve taken an assessment of your case and the various available technologies, you can determine at the outset what technology will work best in your specific case. Malm mentioned that he has had success with “continuous active learning to try and find hot documents quickly and early” and “TAR to figure out how you're going to get documents batched.” Mahoney has utilized simple active learning for production and a continuous active modeling approach to target key documents and privilege. Results “can be shocking to everyone how fast you can learn about the case,” when the right technology is used, according to Malm.
Ultimately, while the challenges of negotiating technology in second requests can be difficult, the role it plays in quickly getting you to the most important documents, and the money that can be saved while doing so, has only reached the tip of the iceberg. You can learn more top second request secrets by viewing the full video of the panel’s discussion in its entirety here. And, stay tuned for parts two and three of this blog series to get an overview of the panel’s take on time and cost, and evolving for the future when technology alone isn’t enough.