How to Prepare for the HSR Act Rule Changes

With the impending updates to the Hart-Scott-Rodino (HSR) Act, it’s important that law firms and in-house legal teams begin preparing their response strategy. A part of that process includes vetting service providers and their solutions. When selecting a service provider partner, here are a few things to consider:

Preservation Consulting and Validation Expertise

Under the new rules, companies will have a duty to preserve before the initial HSR filing. This poses a challenge because companies don’t anticipate an investigation without the agency filing first. For this reason, the duty to preserve before the filing places a significant burden on the parties to rethink and broaden their preservation policies. Providers with consulting arms can help in house teams rethink their information governance policies.

Under the current rules, the FTC requires companies to produce data from officers and directors. The updated rules expand this request to include all deal team leads, which further increases scope.  To properly respond, providers must consult early with counsel and in house teams to understand data retention policies and map where relevant data may live.

Once data is properly mapped and identified, the collection phase will be more streamlined.

Resources and Technology

With the expanded scope, it’s important that service providers have the right technology and workflows for handling multi custodian collections. Look for providers who have specialized tools to image devices concurrently.

Depending on the systems used at the company, eDiscovery providers will need to be prepared to collect, process and review modern attachments, chat applications and other modern data types.

Specialized Use of Analytics and Review Workflows

The more data collected, the more data that must be processed, hosted, and reviewed. It’s important that providers have the resources to effectively manage the end-to-end process. This means scalable, agile teams of forensic, project management and document review experts.

It’s also important that providers utilize leading technology with fast processing throughput and doc-to-doc rendering speeds.

With the expanded definition of 4c and 4d documents, service providers need to have a well thought out analytics and review protocol to ensure that all draft versions of documents are identified. These drafts may complicate privilege review because early drafts are often privileged since legal teams provide guidance during the deal negotiation process.

With initial filings loaded directly to the FTC website, service providers should have a clear understanding of the data delivery requirements.

Though the rules are still pending approval from Congress and courts, legal teams should get ahead of the curve and iron out workflows with their trusted eDiscovery partners. This way, they’ll be organized and ready to respond when the rules go into effect.

About Sandline

Sandline Global is a premier agile advisory firm helping global legal teams escape the ups and downs of the eDiscovery quality rollercoaster. Sandline specializes in delivering innovative digital evidence solutions supported by a team of agile, proactive, and tenacious problem solvers. With a global network of offices and data centers in the United States, Europe, Middle East, and Asia Pacific Regions, Sandline utilizes leading technology, custom workflows, and deep industry experience to support complex investigations and litigation matters. In addition to providing forensics, eDiscovery, and document review services, Sandline designs and supports iManage deployments for law firms and legal departments.

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