Challenging 3 Myths About Document Review During Second Requests

December 8, 2022



Kamika Brown
Kamika Brown

Legal teams approaching a Hart-Scott-Rodino (HSR) Second Request may hold false assumptions about what is and isn’t possible with document review. Often these appear as necessary evils—compromises in efficiency and precision are inevitable given the unique demands of Second Requests. But, in fact, these compromises are only necessary in the context of legacy technology and tools. Using more current tools, legal teams can transcend many of these compromises and do more with document review than they thought possible.

Document review during an HSR Second Request is notoriously arduous. Legal teams must review potentially millions of documents in a very short timeframe, as well as negotiate with regulators about custodians and other parameters that could change the scope of the data under review.

Up until recently, legal teams’ ability to meet these demands was limited by technology. It wasn’t possible to be precise and thorough while also being extremely quick. As a result, attorneys adopted certain conventions and concessions around the timing of review steps and how much risk to accept.

Technology has evolved since then. For example, tools powered by advanced artificial intelligence (AI) utilize deep learning models and big data algorithms that make review much faster, more precise, and more resilient than legacy tools. 

However, legacy thinking around how to prepare for Second Requests remains. Many attorneys and teams remain beholden to the constraints imposed on them by tools of the past. New review tools enable new approaches and benefits, eliminating these constraints. 

Here’s a look at three of the most common myths surrounding document review during Second Requests and how they’re proven false by modern review tools.

Myth 1: Privilege review must come after responsive review

The classic approach to reviewing documents during a Second Request is to start by creating a responsive set and then review that set for privileged documents. This takes time— an extremely precious commodity during a Second Request—but these steps are unavoidable with legacy tools. The linear nature of legacy review models requires responsive review to happen first because supporting privilege review over an entire dataset simply is not a feasible task over potentially millions of records. 

Tools leveraging advanced AI, however, are well suited to support scalable privilege analysis with big data. Rather than save privilege review for later, legal teams can conduct privilege review simultaneously with responsive review. This puts documents in front of human reviewers sooner and shaves invaluable hours off the timeline as a whole.

Myth 2: Producing privileged documents to regulators is inevitable

Inadvertently disclosing privilege documents to federal agencies is so common the Federal Rules of Civil Procedure give parties some latitude to do so without penalty. Even so, the risk remains of inadvertent disclosure during a Second Request that will invite additional questions and scrutiny from regulators and undermine the deal.

Although advanced AI tools cannot eliminate the possibility of inadvertent disclosure, these automated solutions can vastly reduce it. In one recent Second Request, a tool using advanced AI was able to identify and withhold 200,000 privilege documents that a legacy tool had failed to catch. This spared the client from costly exposure and clawbacks.

Myth 3: There’s no time to know the details of what you’re producing

With massive datasets and very little time to review, legal teams get used to producing documents without fully knowing what’s in them. This can cause surprise and pain down the line when regulators ask for clarification about information the team isn’t prepared to address.

With advances in technology, teams can gain more clarity using tools that identify key documents. These tools conduct powerful searches of both text and document attributes, using complex and dynamic search strings managed by linguistic experts. Out of a million or more documents, key document identification can surface the one or two thousand that speak precisely to attorneys’ priorities, efficiently helping counsel prepare for testimony and other proceedings.

What’s your Second Request strategy?

Second Requests will always be intense. Advancements in eDiscovery technology prove the limits of the past don’t apply today. With technology moving beyond legacy tools, it is time for teams to move beyond legacy thinking as well.

For more detail about how advancements in technology help teams meet the demands of Second Requests, download our eBook.

About the Author

Kamika Brown

Kamika is a Client Services Associate Director at Lighthouse. She has been working in the eDiscovery space since 2008. Prior to joining Lighthouse, Kamika worked as a Senior Project Manager at another vendor where she was primarily responsible for day-to-day management of custodian collection coordinator, data processing and analysis, review, production and process improvement for a large banking client with multiple class-action cases, internal and governmental investigations. Before that, she spent 5 years working as an eDiscovery Project Manager supporting multiple large corporate clients and their counsel. Kamika holds a B.S. in Communication Studies from Arizona State University.