Tips for Successful Second Request Production

If a proposed merger or acquisition raises competitive issues, reviewing agencies will issue a request for additional information about the company’s products or services, the market in which it operates, and more. Second Requests are typically broad in scope and could impose a significant burden and delay on a transaction. A well-planned response can result in substantial cost savings and potentially increase the likelihood of approval of the deal.

One of the first steps an organization should take is to secure proper legal and other support that will be needed for the agency review. Retain outside counsel who have experience with similar reviews by the agency, and a discovery provider that has successfully handled a large number of Second Requests from the same agency. Support your counsel in efforts to prepare before the agency inquiry begins. Counsel should be familiar with the business rationale for the transaction, as well as the general nature of competition in the industry, in order to be able craft a clear argument supporting the benefits of the transaction and to identify potential challenges.

Establish an amicable relationship with the reviewing agency, including staff. While the staff does not make the ultimate decisions, their recommendations heavily influence the decision-makers. If possible, it can be helpful to strategically stage the production – for example, by reviewing and producing documents from priority custodians first, so that the agency has the opportunity to see the most critical information early.