The Federal Trade Commission, with the support of the Department of Justice’s Antitrust Division, recently proposed changes to the rules governing merger notification under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (HSR Act). The revisions would require investment funds to report additional information and would exempt certain minority acquisitions from the reporting requirements, including acquisitions of 10% or less of an issuer’s voting securities by activist investors.
Given the chilling effect of COVID on the business of eDiscovery in 2020, many individuals and organizations are interested in the impact of current pandemeconomic conditions on essential audit, investigation, and litigation drivers for legal discovery. One of those drivers is the need for eDiscovery support in FTC and DOJ Second Request investigations. As Second Requests are driven from HSR Act mandated merger transaction reviews, the following HSR Act filing information and comparisons may be helpful for understanding current trends and potential trajectories driving the need for Second Requests.
Given the relatively small number of Second Request opportunities when compared to the traditional opportunities for eDiscovery in support of audits, investigations, and litigation, claims of expertise and experience in this unique type of discovery may be difficult to assess without the context of the actual numbers of Second Requests made annually by the FTC and DOJ. Many providers may assert experience in conducting the tasks required in Second Requests. However, a significantly fewer number of providers may actually have experience in conducting those tasks as part of an actual Second Request case or matter.
According to Barbara Guttman, leader of NIST’s digital forensics research program, “We want to understand the state of the practice. Can experts produce accurate and reliable information when extracting data from a digital device?”
The updated guidance document on corporate compliance from the Department of Justice sets forth topics that the Criminal Division has frequently found relevant in evaluating corporate compliance programs. The information shared in the guidance may be beneficial for legal, business, and information technology professionals in the eDiscovery ecosystem as they consider audits, investigations, and litigation in the area of corporate compliance.
In 2017, global mobile devices and connections grew to 8.6 billion, and it is estimated that global mobile device traffic will reach almost one zettabyte annually by 2022. These mobile-centric data points coupled with the fact that 85% of criminal investigations include some form of digital data highlight the importance for data and legal discovery practitioners to have a working understanding of how the global law enforcement community considers digital data and devices in their investigative efforts.
Disputes over trade secrets and confidential information have increased dramatically in recent years. Often arising after a business hires an employee from a competitor, a proposed acquisition falls through, or information is leaked through overseas operations, these cases expose companies to large financial damages, crippling injunctions and even criminal prosecution.
As a professional with expertise in electronic evidence, I think it is important that we consider what the FBI should be able know now, about 72 hours after obtaining the search warrant for these emails.