Trends in Document Review: Phase II Investigations
Kroll Ontrack’s Document Review centre handles a real variety of projects, each one with unique requirements and for different purposes. However, one trend we have noticed since opening last January is an increased number of clients requiring assistance in matters that stem from the mergers and acquisitions process. Pre- and post-merger audits and merger control RFIs from regulatory bodies such as the European Commission, the UK Competition and Markets Authority, the French Autorité de la concurrence, the German Bundeskartellamt as well as the US Department of Justice are just a few examples of incidences where ediscovery providers may be called upon for assistance.
Phase II is an in-depth analysis of the merger’s effects on competition and requires more time. It is opened when the case cannot be resolved in Phase I, i.e. when the Commission has concerns that the transaction could restrict competition in the internal market. A phase II investigation typically involves more extensive information gathering, including companies’ internal documents, extensive economic data, more detailed questionnaires to market participants, and/or site visits.
As mentioned in Kroll Ontrack’s landmark paper on the pressures faced by businesses from regulators, authorities such as the UK’s Competition and Markets Authority, European Commission and US Department of Justice are placing companies under increased scrutiny. As a result, corporations and their law firms are increasingly turning to the technology and specialist document review services offered by ediscovery providers to manage this data and reduce costs.
A recent Phase II request for information perhaps highlights why companies and their law firms are using managed document review services. We were approached by a leading global law firm on behalf of their client, a FMCG supplier who had been subject to European Commission Phase II request for information and needed urgent document review services.
This case was particularly high priority as the client required highly-qualified review lawyers to start work within less than 24 hours at the weekend and had not contacted Kroll Ontrack until late on Friday afternoon. However, despite this late notice, we were able to find the requested 7 lawyers to begin reviewing the next day.
Mid-way through the review, foreign language documents were discovered in the system. This could have represented a real set-back in terms of time needed for recruiting lawyers speaking the relevant languages. However, Kroll Ontrack’s pool of review lawyers are of such high calibre the existing team already contained several native and fluent speakers in those languages, despite language ability not being an initial criteria for selection.
In these circumstances, completing such a request in-house would have been incredibly difficult, not only from a technical standpoint but assembling, at short notice, qualified lawyers fluent in the unexpected languages.
Kroll Ontrack was able to provide a total of 42 review lawyers and conduct a privilege review of 19,000 documents and non-privileged review of 29,000 documents within 7 days. Once the review was complete, the client was so impressed with our efficiency that 10 reviewers were retained in order to complete a redaction exercise.