Thursday, November 30, 2017
Part 4 is the final post of this series highlighting the behind the scenes views of four of our senior team members and their experience with the stressed, insane, relentless and unforgiving world of Second Requests. Click to read Part 1, Part 2, and Part 3 of the Series if you missed them.
Unforgiving: The timetables for Second Requests are always unforgiving. There is literally no time for error. Even with a wildly-effective TAR process driven by our analytics experts, I know we are going to have a ton of documents to review.
Once I get the call that we’re on a Second Request, I assemble my team of experienced review managers, attorneys with strong antitrust backgrounds and client-side experience, who understand what the FTC and DOJ are looking for, namely whether the merger will be an improper restraint on trade and have adverse effects on consumers. When we’re moving so fast, understanding the fundamentals of a Second Requests means we can provide clear guidance, training and oversight of the review attorneys, and perform effective Quality Control – a differentiator our clients appreciate.
Counsel’s first reaction upon receipt of a Second Request is to immediately request ramping up a huge team of hundreds of contract attorneys to handle the vast amounts of documents they are required to collect and review. Based on our experience, we know that the “throw bodies at the issue” approach can be expensive and inefficient.
First, we know that our analytics experts will be actively working to minimize the amount of relevant documents we’ll actually have to review. More importantly, however, we recommend starting with a leaner team to more effectively calibrate all of our responsiveness and privilege calls. That’s because it’s difficult to get a large group of attorneys coding in a consistent manner on Day 1. One critical function of my team is to minimize coding discrepancies – and have the hundreds of professionals potentially working on a Second Request review act as one unified team on responsiveness and privilege decisions.
Our proven ramp-up strategy starts with 25-50 attorneys who becoming intimately involved in the matter during the TAR algorithm training. They are exposed to client experts and act as oversight reviewers during the QC. This strategy helps solidify our review approach and uncover any issues before we start reviewing and coding in earnest. It’s much more efficient to get the coding done right the first time. And in the Second Request world, it’s a must.
This first group of engaged attorneys also act as coaches and QC leads during and after our review ramp up. Perfecting the review PlayBook with a smaller, focused team drives a more efficient and higher quality review during the tight deadline and high pressure of a Second Review.
Hopefully during our Second Request kick off, the client and outside counsel will ask what they can do to help ensure we get the review done right and on time. That’s always an easy one to answer: clear, consistent and decisive guidance and feedback to help us integrate iterative learning into the human review element, much like we do with TAR. A well-calibrated and aligned team of professionals will deliver consistent and thorough production, and increase the likelihood of hitting deadlines with defensible data.