Negotiating With Regulators in Second Request Discovery
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April 13, 2026
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Very few things can incite more stress and urgency for legal and compliance teams than an Hart-Scott-Rodino Second Request. Notorious for their tight deadlines and high stakes, second requests require organizations to process, review and produce large quantities of documents in a matter of only weeks or months. Failure to properly comply can result in significant delays to merger and acquisition proceedings.
Decisions about what needs to be reviewed, how and when, must be agreed upon with regulators before review can begin. Yet negotiating these terms with the government is in and of itself an exercise in strategy and tact. This article outlines best practices for successfully agreeing upon terms with regulators at the outset of a second request. By outlining timing agreements, custodian scope, how technology assisted review will be applied, and government oversight and reporting before review begins, e-discovery teams can ensure the smoothest possible process.
In a typical second request, two companies have announced a merger or an acquisition, and the Federal Trade Commission or the Department of Justice has 30 days to conduct an initial review of the deal. These agencies want to ensure that the proposed transaction will not cause harm to consumers, and if after the initial review the agencies need more information before making a ruling, either agency may issue a second request for more data. The actual date for compliance is usually negotiated between the government and involved companies, as are the conditions for compliance.1
Timing Agreements
Upon receiving the second request, the legal teams from both companies will need to quickly figure out what the government will want to review, assess how long it will take for the companies to collect, review and produce the relevant materials and privilege log to the agency, and then try to negotiate a deadline that works within those constraints.2
It’s important to understand the underlying tension point at the heart of negotiating the compliance certification deadline and productions. Usually, the government wants as much time as possible to review the data – emails, spreadsheets, voicemail recordings, chats, etc. – and determine whether the proposed merger will create an unfair market advantage for the new entity. Thirty days is often not enough time to fully review the materials, so the last thing that the government wants is to receive all documents on the same day, right before the negotiated certification compliance deadline. On the other side, the merging companies typically want to complete the e-discovery process and certify compliance as quickly as possible.
Given these various concerns, legal teams should scope out the likely custodians and the amount of data that will need to be collected before they meet with the agency. This includes evaluation of the scope of custodians and volume involved, whether certain relevant data resides outside of the U.S. and may be subject to data privacy laws, and assessment of whether relevant data resides in a cloud system, collaboration platform or other unconventional data source.
Once the data universe is defined, the legal team needs to assess realistic timeframes for the e-discovery process given the budget and staffing levels for legal review attorneys. With all this information, counsel should walk into negotiations with a strong sense of the amount of data at hand, the various tiers of data that may be responsive, and realistic timeframes for them to produce this data to the government.
Scope Negotiation
Along with the timing agreement, it is important to simultaneously agree upon which documents must be produced from which custodians, during which time period. When possible, teams should negotiate to have all the specifications in the request cover the same time period. This simplifies the process and leads to better predictive coding results. When that is not possible, it may be possible to restrict the scope of data in the earlier time period by limiting the number of custodians or with the development of different key words.
Scope negotiation also includes reaching agreement upon who the custodians actually are. For some critical custodians, the government may require refresh obligations or an updated production for any responsive documents created since the original production. These refreshes can be difficult and complicated, so it is important to reduce the number of custodians subject to the refresh to the extent possible. It is also possible to negotiate the type of documents that are subject to a refresh. Doing so can save significant time and expense.
Technology Assisted Review
Agencies expect transparency in technology assisted review workflows, analytics and validation protocols and have increased their focus on these methodologies. Some guidelines are negotiable, and others are not. E-discovery teams will need to come into negotiations armed with the full knowledge of how predictive coding and statistical reporting works. Understanding the government’s guidelines in advance of the negotiations can help better prepare for and push back against processes that may be overly burdensome or expensive.
The government also typically requires a sampling of documents that have been predicted to be non-responsive, and they will require some level of remediation should they feel that too many responsive documents have been missed. The common arrangement is for agency attorneys to do this at the counsel’s office, never taking control of actual documents. Also, and critical to understand, is that agencies may restrict or scrutinize efforts to reclassify documents initially deemed responsive.
Conclusion
The high-stakes second request process remains complex due to growing data volumes and types, technology usage and new regulatory guidelines. Second request experience, combined with a clear playbook for the process, can have a profound impact on the success of the government negotiations. Successful negotiations will determine the speed at which the e-discovery team can meet the certification and ultimately streamline a typically burdensome and expensive exercise.
Footnotes:
1: “Premerger Notification and the Merger Review Process,” Federal Trade Commission (accessed April 8, 2026).
2: “Merger Review Process Initiative – Policy,” Department of Justice (accessed April 8, 2026).
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April 13, 2026
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