Competition Bureau bulks up Electronic Production Guidelines

11 septembre 2015

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On September 8, the Canadian Competition Bureau released updated instructions for the production of electronic records by merging parties responding to supplementary information requests, or “SIRs” as they are known. SIRs are thorough requests for data, e-mails and other documentation and information that are issued in connection with complex competition merger reviews, and are commonly viewed as the Canadian equivalent of US Second Requests. The updated instructions set out detailed parameters that the Bureau expects merging parties to follow when responding to SIRs, and put an increased focus on large document productions exported from specialized litigation support software. The updated instructions are similar to the US Federal Trade Commission’s Bureau of Competition Production Guide.

The updated instructions contemplate two options for document productions: (a) productions from computer systems without sophisticated litigation export capabilities; and (b) productions from specialized litigation software. The instructions associated with the former type are straightforward, and similar to the previous instructions: parties may simply produce documents in their “native” format (e.g., Word, Excel, etc.). The instructions associated with the latter type are largely new, and much more complex: parties are expected to produce documents in a specific and detailed manner, with a large amount of “metadata” (e.g., author, date created, date modified, etc.) set out in a separate index.

The precise nature of the updated instructions will help to avoid technical issues (e.g., incompatibility) when submitting large document productions to the Bureau. At the same time, however, the “requirements” imposed by the instructions present a number of issues for merging parties and counsel to consider. For example:

  • The instructions strongly suggest that the Bureau expects that parties’ responses to SIRs will include a large volume of documents, similar to US Second Requests. However, unlike its US counterparts, the Bureau continues to expect parties to code and index documents according to the precise question to which each document is responsive.

    This “specification coding” is often a highly manual process that typically requires lawyers to review each document and assign question-specific coding. It is impractical and extremely costly when reviewing tens or hundreds of thousands of documents, and frustrates parties’ ability to use technological tools such as predictive coding to assist in the review process. It is also an increasingly anachronistic requirement, as the technical sophistication of modern litigation software allows both merging parties and the Bureau to quickly and easily search the entire database of electronically produced documents to identify relevant documents.
  • The instructions purport to set out “requirements” that are not, in fact, required by law. For example, before “de-duplicating” documents (i.e., using software to eliminate duplicate copies of e-mails and other documents, to minimize the costs associated with processing and review), the instructions suggest that merging parties must provide the Bureau with a written description of the proposed process to be used and receive confirmation from the Bureau that the “deployment of such processes permits the Company to fully comply with [the] SIR.” The Competition Act, however, merely requires that parties certify that their SIR responses are, to the best of their knowledge and belief, correct and complete in all material respects. Standard de-duplicating methods are well understood by experienced counsel and technology support vendors and as a practical matter are routinely accepted by the Bureau.

Overall, we expect that the requirements of the SIR process will continue to evolve rapidly as technology improves. Merging parties should consult with competition counsel well in advance of complex merger reviews, so as to understand and consider the implications of receiving a SIR.

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