Introduction

This Second Request action involved a merger between a large U.S. electronics company and a large Asia Pacific (APAC) electronics company. FTI was engaged by an Am Law 100 law firm representing the Japanese entity to facilitate compliance with the Department of Justice’s (DOJ) Second Request process. The firm chose FTI because of its experience with multi-national antitrust matters and its strong reputation for managing projects involving non-English languages. Despite tight timelines and a particularly complex set of circumstances including collection and review of data from multiple international locations and more than one nation’s antitrust agency requesting the information, FTI delivered all productions before the deadlines set by the DOJ and with significant overall savings to the end client.

The Challenges

  • Over six million documents to collect in two countries, which required local teams knowledgeable about collection in accordance with data privacy requirements in the non-US jurisdictions.
  • 43% of documents in Chinese, Japanese or Korean (CJK) language that required native language reviewers and, in many cases, translation.
  • DOJ requirement to use predictive coding on all documents in the case, including CJK language documents, with demonstration that predictive coding would work equally well on both English and non-English documents.
  • Coordination between US DOJ, APAC country antitrust regulatory body, US law firm and APAC country law firm.

Increasingly, mergers between large corporations have global implications. This adds complexity to the already difficult Second Request process and requires an e-discovery partner with the resources and experience to handle multi-national data. Also, growing data volumes due in part to the breadth of Second Request subpoenas have drawn new guidelines from the Federal Trade Commission (FTC) and DOJ around how parties review documents. Namely the agencies in some cases have approved, and now in many cases require, the use of predictive coding software. This technology assists in shortening review timelines and reduces document volumes. When using predictive coding, parties must be able to explain to the agencies how the software works, demonstrate its accuracy, and provide assurances of a defensible process. For these reasons, it is important to engage an antitrust partner who has strong and proven predictive coding technology. It is also beneficial if a provider has previously been through the discussion process and validation of its software with the agency.

In this particular case, the DOJ required predictive coding not only on English language documents, but also on the CJK documents. The agency required proof that the predictive coding functionality worked equally well on both the English and CJK language documents. In response, FTI’s experts presented to the DOJ and successfully demonstrated the accuracy of FTI’s Ringtail® e-discovery software predictive coding functionality on both the English and non-English language documents – effectively showing that the predictive coding software is “language agnostic.” As a result, the DOJ granted approval for the use of Ringtail predictive coding on the CJK documents, the first time predictive coding had been approved on a non-English language document set in a Second Request action.

Beyond the predictive coding and language requirements, this matter also had the typical hallmarks of a difficult Second Request. The subpoena was broad, the data set was large, the documents were in several worldwide locations and the deadlines were tight. Review of the document set post predictive coding also required extensive translation services, which FTI supplied at a great cost savings to the client.

The Solution

  • FTI consultants worldwide collected the six million documents requested and employed Ringtail technology to provide cost-reducing, defensible methodologies including deduplication and predictive coding.
  • FTI experts demonstrated to the DOJ that predictive coding could be used accurately across both English and CJK documents.
  • 1.2 million documents, 40% of which were non-English CJK data, were passed through the Ringtail Predictive Coding engines for prioritization and auto-categorization.
  • The original six million records were reduced to fewer than 500,000.
  • FTI’s 60-strong attorney review team then performed a responsiveness review of over 290,000 English-language documents and 110,000 CJK documents in multiple time zones and offices to maximize effort and minimize the project timeline.
  • Ringtail predictive coding was also used for the privilege review and was able to separate over 16,000 privileged documents from the production set.
  • FTI coordinated communication between two multinational regulatory agencies and two multinational law firms.
  • FTI delivered rolling productions of documents on time and under budget for the client.

While this project presented unique challenges, it was far from an atypical Second Request action. Increasingly parties can expect multinational locations and multi-language documents along with the short timelines and big data sets usually encountered during a Second Request. In this case, FTI proved to be an invaluable resource in solving these unique problems and delivering for the client.