In the final installment of my three-part blog series covering Lighthouse’s recent Antitrust Leadership Panel on the issues and strategies surrounding second requests, I will highlight the panel’s proposed solutions on how we can evolve for the future, specifically surrounding the role of technology as presented in the first blog, and toward reducing the time and cost of second requests as highlighted in the second blog.
If you made it this far, you know all about Lighthouse’s panel of HSR experts Christian Mahoney, Kenneth Reinker, and Larry Malm from Cleary Gottlieb, and Corey Roush, Gorav Jindal, and Haidee Schwartz from Akin Gump, who along with Lighthouse moderator and VP Bill Mariano, got together in Washington DC to discuss their insights into the complexities and challenges surrounding second requests. Here are the highlights from their discussion on how to evolve for the future when technology alone isn’t enough.
“Ultimately, it comes down to trust. Trusting the technology and that the defense counsel, staff attorney, and leadership are being candid with you.”
- Corey Roush, Akin Gump, 2019 Antitrust Leadership Panel
Create Evidence to Enhance the Trustworthiness of Technology.
With all of the technology discussed by the panelists, like AI, predictive coding, email threading and even basic deduplication, technology is also creating a problem: the explosion and proliferation of data. One proposed solution outside of simply relying on more technology is to focus on influencing the agencies to trust the process and trust the technology and its results more. An insightful solution proposed by Roush is for vendors to focus on helping to “develop evidence because that’s what can persuade the DOJ and the FTC” to adopt more advanced technology, which in turn will decrease time frames and cost.
Make Better and More Accurate Privilege Review Tools.
In addition to the overarching issue of trust and getting the agencies to understand and accept advanced technology, the panelists agreed that another tangible solution would be to create better and more user-friendly privilege review tools. Malm suggested that “a more productive process around privilege would result in leaps and bounds for everyone involved in the second request process.” Ultimately, according to Mahoney, if privilege could be predicted more precisely, there would be greater buy in from clients and the agencies.
Advocate on the Side of Proportionality.
With the theme of enhancing trust in technology being an integral part of advocating on the side of proportionality, the panelists agreed the FTC and the DOJ will likely be more open to limiting their requests for broad swaths of custodians and documents if the arguments for proportionality were based in compelling evidence. “Ideally, technology can develop a way to build trust and build evidence so that agencies can be narrower in terms of their requests” and be on the side of proportionality, commented Schwartz.
What if we got to a place where the agencies fully trusted and accepted multiple varieties of advanced technology, and proportionality became a greater emphasis for them? In the best case scenario, the haystacks of data would significantly decrease and the key documents would be quick to find, providing more bandwidth to evaluate second requests post mortem and use the lessons learned to make subsequent second requests faster, more efficient, and less expensive, providing a win for both sides. If you’ve enjoyed this blog series and would like to hear all of the top antitrust insights from our expert panelists, make sure to view the video of their full discussion. And, to discuss any of your thoughts or comments directly with me, please reach out at SLedgerwood@lighthouseglobal.com or on Twitter @sarahewood.