It is no secret that litigation can arise during or after a merger transaction. To be better prepared, is best to have an action plan ready to streamline the process. The question then becomes how competition counsel can leverage technology and expertise for pending or threatened litigation. To guide this process, below is an overview of what should occur early on to be more efficient and manage costs.
As with any case, it all starts with determining the scope of the matter. This consists of identifying custodians and where key data resides so appropriate legal holds can be initiated. Data mapping is helpful for ensuring that all information sources are preserved. When it comes to legal hold technology, advanced software solutions can create peace of mind that there is defensible data preservation. When merger litigation arises, there will likely be overlap with the data already collected for merger review or second request/supplementary information request (SIR). If it becomes clear that after responding to an SIR that the merger review process will be contentious, the best practice is to maintain the original database used for the review. Archiving this database will reduce costs and allow you to easily bring it back online if litigation ensues. Just remember that additional data might need to be collected, however, keeping the initial document repository provides a good starting point that cuts down on time and costs.
In addition to partnering with a vendor that can assist with the above, look for one that can provide a more detailed look into your data at the beginning stages. Understanding your data and deploying analytics during early case assessment is crucial to the success of the file, as it helps identify potential issues, risks, or themes that support your position. After a thorough consultation about the case nature and specific goals, we can dive right in and interrogate the data set using the best tools for the data in question. Domain expertise along with competition law knowledge helps inform and streamline the process, resulting in detailed analysis to guide strategy decisions. Analytics can identify irrelevant documents to reduce the future discovery dataset, flag key data that may be hidden, pull out key themes, and provides a better outlook on case costs. One specific benefit is being able to use key documents from the merger review to find similar documents present in the expanded litigation dataset. Case Insights offering can handle this task and help lawyers develop strategy
After we generate a report with our findings, a virtual meeting occurs to explain and shed light on where key data insights reside. Having a chunk of the investigative work done early on informs the legal team about risk and improves strategy decisions. This will significantly save time and cost as litigation moves forward because it provides a head start with eDiscovery and allows for a more focused game plan. Leveraging proven processes and technology is a smart tool for competition counsel to utilize when litigation arises or is on the horizon.