The FTC's Guide to HSR Second Request Productions

The FTC's Hart-Scott-Rodino Premerger Notification Office has published a guide, Model Request for Additional Information and Documentary Material (Second Request), which gives the specifications for responding to a HSR Second Request for information about a proposed merger which the Commission wants to investigate. Litigation support analysts and paralegals should keep in mind the following are among the wide array of documentation and data that is required:

1. Org charts for each department in the company.

2. A data map for the company.

3. The identity of electronic databases for relevant products and services, including the database type, (flat, relational, or enterprise); fields, query forms, and reports available or maintained, and the platform used.

4. Data sets from the database with price, sales, and other data.

5. Minutes and recordings of board meetings.

6. The company's document retention and destruction policy.

7. A list of the federal judicial districts in which the company has an agent to receive service of process. [The company may agree to a stipulation to accept service throughout the United States.]

8. "electronic production tools or software packages utilized by the Company in responding to this Request for: keyword searching, Technology Assisted Review, email threading, de-duplication, and global de-duplication or near-de-duplication."

9. Keywords used in searches for each data custodian.

10. Information on the TAR software, including

    1. how the seed set was selected.

    2. the number of documents reviewed manually.

    3. the number of nonresponsive documents identified without manual review.

    4. how the company validated its TAR results.

11. A designated person to testify about the review process for the electronic production.

In addition to these specifications, the guide also makes the following instructions for the company's response:

1. The guide instructs that the company include all responsive documents obtained up to 45 days prior to the date on which the company complies with the request.

2. PII and PHI, including social security numbers, and financial account numbers, must be removed.

3. A specific form of production is given:

   1. Excel, Access, and PowerPoint files must be in native format.

   2. Emails, their attachments, and other documentation should be in TIFF (Group IV) format, and include extracted text and metadata fields. These metadata fields are required for non-email documents, and other metadata fields are specified for emails and their attachments.

4. Productions over 10GB have to be made on hard drives.

5. NIST FIPS-Compliant encryption is encouraged for all productions.

6. "Each production shall be submitted with a transmittal letter that includes the FTC matter number; production volume name; encryption method/software used; list of custodians and document identification number range for each; total number of documents; and a list of load file fields in the order in which they are organized in the load file."

7. A FTC representative must authorize the use of de-duplication and email threading software.

8. Foreign language documents have to be translated into English.

9. Documents must be produced in color when it is needed in order to make substantive content intelligible.

10. A log must be included listing the custodian for each document range.