Antitrust Division Revises, Streamlines Model Second Request

We are pleased to announce that today the Antitrust Division issued an updated Model Second Request (formally, Request for Additional Information and Documentary Material).  Importantly, the revisions conform the division’s Model Second Request (Model) to current division practice.  The updated Model will be used for all Second Requests issued on or after December 12, 2016. 

While much of the substance of the previous Model remains, the updated Model includes improvements that will make it easier for parties to respond to our requests, and easier for division staff to negotiate them.  For example, it improves organization and eliminates duplication by grouping together various specifications by subject matter.  It also includes early requests to identify people and information that will help division staff understand the transaction and its impacts.  These steps will make the compliance process more efficient.  

The revised Model also reflects current e-discovery practice and requirements, including instructions on the use of predictive coding and search terms.  The division recognizes the burden discovery may place on parties and the Model seeks to balance that burden with the division’s need for information and documents that help our teams appropriately assess proposed transactions.  

Publishing the revised Model will permit parties and their counsel to anticipate what information the division may seek, even before being issued a Second Request.  This will allow parties to better focus their collection and review of documents and information, and allow counsel to better advise their clients what to expect from the division.  

The Federal Trade Commission also issued a revised Model Second Request in August 2015.