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Feature Stories E-Discovery Best Practices in Antitrust Document Review Electronic discovery has evolved from a tool employed in only the largest, most document-intensive cases into a mainstream practice that plays a role in many merger investigations. With businesses generating an astounding volume and variety of electronic documents on desktop and laptop PCs, networks, servers and hand-held devices, this shift from paper to electronic review was inevitable. Today, the broad term "electronic discovery" is commonly understood to include document review practices in antitrust work as well as litigation. The Federal Trade Commission's Bureau of Competition and the Antitrust Division of the Department of Justice have paid increasing attention to electronic discovery practices in the past year, with the FTC including electronic document review as one of the primary topics at its June 2002 merger review "best practices" workshops. D. Bruce Hoffman, Associate Director at the FTC's Bureau of Competition, served as one of the moderators at the workshops, and has been spearheading the FTC's electronic discovery initiatives. "Both the FTC and DOJ continually look at practices and procedures to ensure we're doing the best job we can," said Hoffman. "The issues associated with reviewing and producing electronic documents came to our attention with the rapid rise in the size of average second request productions, and the increase in parties' requests to use electronic production techniques. We knew it was time for serious review of this issue." According to Hoffman, there has been a steady increase in the volume of electronic data involved in merger investigations. Connie Robinson, attorney and Director of Operations of the DOJ's Antitrust Division, agrees with Hoffman's assessment. "Today, we are receiving about 50 percent of materials in some sort of electronic format," Robinson noted. "The trend is clearly moving toward more and more electronic productions." Hoffman attributes the rising tide of electronic document productions to two factors: the increase in creation and storage of electronic information by businesses, and the rapid development of options for electronic review and production. "Email is now the primary form of intra-corporate communication," observed Hoffman. "In some recent second request productions, email alone constituted the majority of the production." With the change in business practices has come a change in the way attorneys review their clients' information. "Electronic production techniques have become sufficiently widespread, accessible and affordable that they should be available to parties as a routine matter," continued Hoffman. "Electronic discovery has become very widespread on the civil discovery side and should be equally available on the merger side." In December 2002, the FTC issued a press release and accompanying statement summarizing the agency's findings during the best practices workshops. The announcement included recommendations for production of electronic documents in second requests, and encouraged parties to produce electronic documents in electronic form when possible. The FTC's announcement stated in part, "Electronic production has become a cost-effective method of producing documents. It has been accepted, in various formats and with various degrees of success, by both us and the Department of Justice. In light of this, we intend to develop options for electronic production." The FTC's December 2002 best practices recommendations also identified some acceptable specific methods of electronic productions and indicated a preference for production in a web-based database. The statement said in part, "Native file productions are unsatisfactory for various reasons, and production by CD often imposes an unacceptable burden on our resources. However, productions by .pdf format, accessed on the web, have proven to be extremely effective, for both the parties and our staff." Hoffman says there are a number of reasons why a web-based repository appeals to the FTC, but noted one of the main factors is the avoidance of strain on the agency's internal IT resources. Both Hoffman and Robinson note that attorneys representing merging parties have been exploring electronic production options with increasing frequency since the best practices recommendations were issued. With both the FTC and DOJ working to encourage options for electronic document review, there are substantial implications for attorneys practicing before both agencies. "The FTC and DOJ clearly seem to be working toward a uniform protocol for electronic production," observed Bob Cook, an antitrust attorney with the Washington, D.C. office of Drinker Biddle & Reath LLP, and a participant in the FTC's 2002 workshops. "Without a doubt, this is going to be the future of merger review. As the volume of electronic documents increases, we have almost no other option for how to handle them." The benefits of electronic discovery practices are clear to most attorneys, but some are still fearful of making a change from the paper-based document review practices they know and—even though they dislike the manual work—trust. Hoffman believes that attorneys who express a resistance to electronic review and production methods may be unfamiliar with the capabilities of current technologies. "Part of it is a general resistance to change away from familiar, tried and true techniques, and part of it is the concern that trying a new procedure could delay the process when they have a very tight deadline," said Hoffman. Cook agrees, noting that electronic discovery practices must be compatible with the discovery processes attorneys already know. "It's a matter of having a way to conduct review electronically that makes lawyers comfortable with the procedures." Cook worked as a staff attorney at the FTC for nine years, and observed some of these changes taking place from the agency's perspective. He believes that the government may be less conservative than the private bar in this instance, and sees the agencies driving what will ultimately be positive changes for everyone involved. Some members of the private bar fear that electronic discovery technology makes it too easy for reviewing agencies to search through the parties' documents, potentially harming their clients' position in merger review. Hoffman strongly disagrees. "Producing documents electronically definitely provides the agency with better search and review capabilities, but this is almost universally beneficial to the parties," Hoffman added. "People who've worked with the agency a lot realize one thing that really makes an impact on us is the ability to verify the parties' arguments. Having the documents available to us in searchable format greatly improves that process and speeds the entire review." Hoffman recalls a recent production conducted entirely in electronic form. "It was a great benefit to the parties that the staff lawyers could take arguments presented by the parties and test them and quickly determine they were soundly based. Electronic review significantly improved the review process and the staff's confidence in what the parties were telling them." Everyone involved agrees that electronic discovery is here to stay, and that the benefits will greatly outweigh any perceived difficulties along the way. "The ultimate goal is a more targeted review," said Hoffman. "In the long run, we believe that electronic production will be better for everyone involved." Robinson agrees, adding that the agencies will continue to do whatever they can to standardize practices for uniformity along the way. Cook recommends that attorneys get started with a mid-sized project or a case involving a tech-savvy client. Once they understand the benefits of electronic discovery, he believes they will be ready to make the switch. "Don't be afraid of electronic discovery," Cook advises. "It works." |
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