DOJ's Model Second Request

Here's a follow-up to the Tips of the Night for August 26, 2018 and August 27, 2018 which discussed the FTC's Model Second Request. The Department Justice posts its own model second request here.

The wording in the two models is quite different, but they do request much of the same basic documentation.

Like the FTC's model, the DOJ's model requests

1. Organizational charts

2. A list of people assigned to work on the proposed transaction

3. Product descriptions

4. Information about facilities that manufacture relevant products

5. Advertising materials

6. Presentations to executive committees

7. Market studies and forecasts

8. Information on the construction and closing of new facilities.

9. Information on imports and exports

10. Notification about the transaction to foreign authorities.

11. Board meeting minutes

12. Record retention policies

13. A list of the federal judicial districts in which the company has an agent to receive service of process.

The DOJ's model does not specifically request a 'data map', as the FTC's model does. Both models provide a list of databases to be produced, which include those for product, pricing, sales, costs, intellectual property, and customer data. While the FTC model requests a data dictionary and specifically asks to:

(a) identify the (i) database type, i.e., flat, relational, or enterprise; (ii) fields, query forms, and reports available or maintained; (iii) software product(s) or platform(s) required to access the database

The DOJ model asks for:

(1) its software platform; (2) its type (e.g., flat, relational, or enterprise); (3) the sources (e.g., other databases or individuals) used to populate the database; (4) a Data Dictionary; (5) for relational or enterprise databases, documents specifying the relationships among tables (e.g., an entity relationship diagram); (6) any query forms; and (7) any regularly prepared reports produced from that database

The DOJ model refers to data from a 'Collaborative Work Environment' which is omitted from the FTC model.

Like the FTC, the DOJ asks for information on the electronic discovery process itself. Both request terms used for keyword searches and both ask for statistics on precision and recall.

The FTC model requires the identification of the actual software that is used for electronic discovery, something the DOJ model doesn't mention. The DOJ asks for a list of stop words, and a statistical sample of non-responsive documents, which are not mentioned in the FTC model. Here's the relevant passage on electronic discovery from the DOJ model:

Before using software or technology (including search terms, predictive coding, deduplication, or similar technologies) to identify or eliminate documents, data, or information potentially responsive to this Request, the Company must submit a written description of the method(s) used to conduct any part of its search. In addition, for any process that relies on search terms to identify or eliminate documents, the Company must submit: (a) a list of proposed terms; (b) a tally of all the terms that appear in the collection and the frequency of each term; (c) a list of stop words and operators for the platform being used; and (d) a glossary of industry and company terminology. For any process that instead relies on predictive coding to identify or eliminate documents, you must include (a) confirmation that subject-matter experts will be reviewing the seed set and training rounds; (b) recall, precision, and confidence-level statistics (or an equivalent); and (c) a validation process that allows for Department review of statistically-significant samples of documents categorized as non-responsive documents by the algorithm.

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