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Antitrust e-discovery raises multiple issues.

Summary: Antitrust e-discovery is increasingly cross-border--as many larger mergers are taking place and involve many nations. These in turn create multiple pitfalls in e-discovery.

To explain them ...

Antitrust e-discovery is increasingly cross-border--as many larger mergers are taking place and involve many nations. These in turn create multiple pitfalls in e-discovery.

To explain them and give advice on some of the challenges, Ernst & Young held a webcast "Anticipating pitfalls in cross-border antitrust eDiscovery" on Thursday. The speakers included: Chris Wall, senior manager, Ernst & Young (moderator); Jonathan Wilan of Baker & McKenzie; Jennifer Mallot of Freshfields Bruckhaus & Derringer; and Trevor Horwitz of Ernst & Young.

Specifically, the panel discussed national and jurisdiction-specific privacy; legal discovery--related data transfer and data processing; regional differences in privilege doctrine; and practical tips for cross-border discovery.

"Privacy and data protection generally are hot topics because of an enhanced awareness of and sensitivity to privacy issues worldwide, the very public tension between international national security interests and individual privacy rights, recent high-profile data breaches, and the prevalence of social media," Wall explained to InsideCounsel. "From an antitrust standpoint, multinational companies who are subject to antitrust investigations and litigation are generating more and more data--data that is subject to search, review and production to requesting parties in the U.S. and elsewhere. Regulators must balance the need to access data to analyze the transaction and the need to protect individuals' personal information and state secrets that might be included in that data."

He explained that the companies often have interests in many jurisdictions and data hosted in many of those locations. "Where those companies' data resides--and where their data cloud happens to sit--makes a significant impact on how and where the data can flow," Wall said.

These issues relate to mergers and acquisitions, as well. Wall said that parties to a transaction may need to provide formal notice to regulators that they intend to close a deal. Some notifications may require documentation "that must cross international frontiers [and] ... some of those notifications will result in supplemental information requests or ... investigations by antitrust regulators, who will require the parties to provide more data regarding the transaction," Wall said.

Moreover, he identified some common pitfalls related to the e-discovery process when it comes to cross-border merger control. These include:

No privacy plan for each jurisdiction and not enough time to address privacy concerns. Failing to identify jurisdictions where privacy or data protection issues might arise. Failing to put appropriate documentation or other safeguards in place to mitigate privacy risk. No process for removing personal information or state secrets before transfer.

Also, Holly Frost, senior manager, EY FIDS, recommends such tips as identifying documents that might contain personal information or state secrets, and segregating them. She also suggests engaging in a dialogue with antitrust regulators early in the process and discussing privacy concerns associated with the requested documents. And Frost recommends double-checking documentation so third parties who access the data are covered by a model contract or other terms.

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Publication:Inside Counsel
Date:May 20, 2016
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