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There are NO Second Chances in Second Requests
As corporate mergers become more common, regulatory activity, especially second requests, is on the rise. Second requests are more intrusive and substantial than discovery requests during litigation, and they are not subject to negotiation. Here are our six best practices and strategies for managing them.
Anticipate and Prepare
It is worth anticipating the necessity of a second request and engaging in a company-wide data-mapping process once a merger is announced. Learning exactly what data the company has and where it is located is good policy, and it is essential when approaching a merger.
Use Model Requests
Once the data-map is complete, companies can consult model requests from the DOJ or FTC to begin identifying potential information that will be requested. Combining the data-map with the model requests can give a starting point that is ahead of the curve.
For second requests, technology is mandatory. The volume of data requested and the time-frame make it indispensable. Plan to make extensive use of predictive coding, augmented intelligence workflows, and technology-assisted review (TAR). Ensure the team has all of these tools at their disposal and knows how to use them.
Get an Experienced Team
A team with prior experience on multiple second requests is essential. Look for a team that has been together for years and has developed reliable strategies and workflows to handle the specific challenges of second requests.
Perfect the Process
Process is essential for all reviews, and second requests heighten this reality. At the minimum, sequencing, accountability, and escalation processes are mandatory. A process that incorporates real-time collaboration and how counsel wants to handle privilege and exception planning is necessary.
Pay Attention to GDPR
Review teams must pay attention to GDPR and similar data-privacy regulations. The rules that govern privacy frameworks in the type of large data sets associated with second requests can be complex and overlapping. Compliance is essential to production, so make sure to have privacy expertise on the team.