As I recently commented, competition authorities are seeing more added value in documents when it comes to assessing potential mergers and acquisitions from a competition perspective. The write up of this CMA decision by David Little, Alexandra Luchian and Salar Alambeigi from Latham & Watkins illustrates some interesting points as shown in the quote below.
Unless document requests are taken seriously by companies, then the imposition of penalties for non production of documents is going to become common place as regulators are more and more focused on documents. Therefore the approach that companies follow must be stringent, efficient and effective ensuring that the objectives of the document requests are met. This means thinking about what is really being asked for, where that information is likely to be recorded and how that can then be searched. This is not as simple as simply grabbing and searching all emails but a more surgical and sophisticated approach is needed to ensure appropriate data sets are included and analysed in an efficient way utilising technology where possible.
This is not always a straightforward legal or technical decision, although they are important, and can often require an economic perspective, especially if there are concerns around how the deal may impact on the market, consumers and/or competitors. We often find ourselves working in close collaboration with A&M’s competition economists, such as Chris Williams and Schellion Horn, in these cases as one seamless team.
Heightened CMA use and enforcement of statutory requests for information call attention to the importance of effective and efficient document production processes in both Phase 1 and Phase 2 merger inquiries, given the increasing informational requirements of UK merger control review. • The CMA’s increased willingness to penalise companies for procedural infringements underlines the importance of engaging early with competition agencies to define a detailed, but workable, methodology for document review and production, particularly in the context of parallel cross-border merger control proceedings. • The CMA’s enforcement position arguably overlooks significant practical challenges that arise in coordinating large-scale document reviews across multiple jurisdictions, which are exacerbated where merging parties work with multiple local counsel or global agencies’ investigative timetables are not aligned