Are You Facing the Prospect of a Merger Investigation?

by BakerHostetler
Contact

If your organization is facing the prospect of a merger investigation and your lawyers haven’t raised the prospect of technology-assisted document review (“TAR”), then maybe you should be talking with someone else.

What is TAR?

TAR, a relatively new entrant into the world of litigation and investigations, is an iterative process in which human subject matter experts (“SMEs”) interact with software and code small sets of documents. The computer takes into account the decisions of the subject matter experts and generates new sets of documents from which it thinks it will learn from the human decision makers. This process typically ends after a few thousand documents have been reviewed and the predictive coding tool concludes it can learn nothing more from the human reviewers. The predictive coding tool then extrapolates those judgments to the entire set of collected documents, and codes the documents as likely relevant or likely irrelevant.

This is not a “black box” or “set-it-and-forget-it” solution. Instead, the producing and requesting parties must first agree on protocols covering how the system will be trained, when training will end, and how the results will be audited. The parties will likely also discuss how transparent the training process will be to the requesting party. Will the requesting party participate in training? Will the responding party share its relevance decisions during the training process? How will privileged documents be handled? This may sound a bit more complicated than the traditional linear review, but TAR can provide efficiencies and consistency in return for that complication.

What are the benefits of TAR for merging parties facing the prospect of an investigation? 

In a recent publication, the Department of Justice Antitrust Division’s Senior Litigation Counsel for Electronic Discovery, Tracy Greer, noted that the “use of TAR offers the promise of reducing the costs incurred by merging responding to Second Requests and the size the document productions received by the Division, without undermining the ability of the Division to conduct an appropriately thorough investigation.”

Greer offered several additional observations based on the Division’s negotiations of “TAR protocols in approximately a dozen instances.” Based on that experience, Greer found that “TAR produced smaller, more responsive document productions,” which “contained much more relevant information and less that obviously is not responsive.” Greer also felt that the Division staff benefited substantially and, based on reports from the producing parties, that the parties experienced “substantial time and cost savings” as well.

Greer went on to state that TAR provided additional opportunities to narrow party productions, including instances where the Division “encouraged parties using a TAR protocol to identify categories of documents that, while technically responsive to the Second Request, [were] not essential to resolving the competitive concerns at issue in the investigation.” Overall, Greer saw the use of TAR as “an opportunity to reduce further the size of the production,” which, in turn, saves the producing party money, and the producing party and the Division time.

But Greer also included an important caveat when it came to the validation of a TAR process. That is, the Division also consistently asked producing parties to “provide a statistically significant sample of nonresponsive documents to ensure that facially responsive documents were not excluded from the collection.” Why? To support the use of TAR, the Division was checking both the produced documents as well as samples of the data left behind, but the Division did except “documents coded as privileged” from that nonresponsive review.

So, why haven’t your lawyers raised the prospect of TAR with you? That is an excellent question.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© BakerHostetler | Attorney Advertising

Written by:

BakerHostetler
Contact
more
less

BakerHostetler on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.