Are You Facing The Prospect Of A Merger Investigation?

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.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.