Requesting Documents and Data

Mark WoodwardAfrican Competition Forum Workshop

March 26, 2013

• Importance of Documents/Data

• Case Study: FTC v. Boehringer

• Documents: Request, Receive, Review, Prove

Session Overview

• Building Blocks: prove/disprove, develop facts

• Create New Questions: who to interview

• Contemporaneous, Detailed Chronology

Importance of Documents and Data

• Witnesses Necessary: context to understand

• Clarity: explanation of jargon, code words

• Interpretation: multiple meanings, ambiguous

Potential Problems with Documents

• August 2008: Boehringer & Barr entered agreements to settle patent litigation over two pharmaceutical products– Barr had sought to market competing generic

versions of (1) Aggrenox and (2) Mirapex– Agreements prevented generic entry until dates

in the future– Barr agreed to co-promote Aggrenox in exchange

for significant payments

• Commission opened an investigation

FTC v. Boehringer: Background

• February 5, 2009: Commission subpoena– Compulsory demand for documents and

data

• 37 Specifications: marketing plans, forecasts, analyst reports, and more

• Boehringer failed to comply, FTC filed suit

FTC v. Boehringer: Background

• Request: specifications, definitions, instructions

• Receive: coordinate, manage production

• Review: assign, mark/tag, organize, assess

• Prove: using requested documents to prove case

Document Roadmap

• In conduct matters, can be a useful first step

• May Impose Obligation on Target– First notification of the investigation

– Obligation to preserve documents may attach

• Anticipate specifications in the compulsory demand

Request: “Do Not Destroy” Letter

• Discover the Building Blocks of the Case

• Purpose: – Evidence of the conduct, communications– Statements of intent/purpose, target’s view of market

• Strategies:– Broad enough to produce relevant documents– Narrow enough to not be oppressive/unreasonable

Request: Purpose and Strategies

• Specifications: documents to be produced

• Definitions: clarify key terms, avoid ambiguity

• Instructions: how to search, how to produce

Request: Anatomy of a Compulsory Demand

• Demand documents to investigate a violation– Seek documents for each element of proof– Consider specific document types, where

possible– Balance need for information against burden

• Language determines scope– Sufficiently broad to cover inaccuracies/mistakes– Sufficiently narrow to prevent undue burden and

unmanageable volumes of documents

Request: Specifications

• Broad: “All documents relating” to broad topic

• Broad: All of a specific type of document

Request: Specification Scope

• Narrow: Documents “sufficient to show”

• Narrow: Single documents or a limited set

Request: Specification Scope

• Dependent Specifications

Request: Specification Scope

• Create a Proof Outline or Investigative Plan

• Base Specifications on Points in Proof Outline or Plan

• Use Appropriate Language: broaden, limit

Crafting Request Specifications

• Underlying patents may be invalid or not infringed– Documents related to underlying patent

litigation– Trial exhibits, memos, briefs, filed papers

FTC v. Boehringer: Relevant Elements

• Boehringer expected generic competition– Profit/loss statements, brand plans, forecasts,

marketing plans– Board of Directors minutes, competitive analyses

FTC v. Boehringer: Relevant Elements

• Boehringer considered paying for delayed competition– Negotiation documents, discussions, notes– Evaluations, emails with opposing parties, drafts

FTC v. Boehringer: Relevant Elements

• The co-promotion agreement was a vehicle to provide compensation to Barr– Copies of past similar agreements– Marketing materials and company plans– Communications about the agreement

FTC v. Boehringer: Relevant Elements

• Clarify Key Terms, for example:– “Documents”– Sources of Documents: Target Company

Name– Subject Matter of Particular Interest

• Avoid Ambiguity

Request: Definitions

Request: Definitions

Electronic Documents

Electronic Storage

• Including specific subsidiaries points the subpoena recipient to certain, expected sources of documents

• Include language to broaden the definition:– In case the specific sources are not accurate– In case other subsidiaries/affiliates were also involved

Request: Definitions

• Avoid ambiguity by clarifying specific terms

• Helps to narrow the scope of the request

Request: Definitions

• Date: – Specify the reach-back date, request period

– Specify the return date, or the deadline

• Form: – How target will produce documents

– Electronic documents in native or image format

– Handling of privileged materials

Request: Instructions

• Specify how far back the target must look

• Specify when the documents are due– E.g., Documents must be produced within 30 days, or

by May 1, 2013

Request: Instructions

• Determine whether image or native format

Request: Instructions

• State how privileged documents are handled

• Require Privilege Log: privilege grounds, title, author, date, recipients, description, denote attorneys

• Limit or ban redactions

Request: Instructions

• State what is required for full compliance

Request: Instructions

• Understand precisely what you are asking for and phrase request accordingly– Reduces burden on both sides– May require research

• Ensure data compatibility– Check with IT personnel

• Be prepared to negotiate

Requesting Data

• Same general structure and similar specifications

• Should be less burdensome than compulsory demands to targets– Fairness suggests less burden on a bystander– May be a friendly third party– Still must obtain relevant evidence

Request: Third-Party Requests

• If available, include IT personnel in drafting of and compliance with compulsory demand

– Drafting: requests, definitions, instructions

– Managing: receipt and storage of documents, in particular electronic documents

Request: Role of IT Personnel

• Scope: limit scope of searches, e.g. by key-word, date, or custodian

• Format: settle on format of production, use of de-duplication techniques

• Compliance Date: may request extension

Request: Negotiation

• Coordination: liaison with IT

• Record: log and store, report/record problems

• Early Case Assessment: begin categorizing

Receive: The Basics

• Log every production

• Record/report problems to IT – Where necessary, check with producing party

• Store media safely, together, and with all documentation– Allows for eventual return, if appropriate– Prevents improper access to confidential

documents

Receive: Record

• Productions may be organized by:– Specification– Custodian– Topic or Issue

• Sort, search, and categorize – then review

Receive: Early Case Assessment

• Organize: order out of chaos

– Organization different for electronic vs. paper documents

• Assign: devise a plan for reviewing the documents

• Mark/Tag: tagging scheme, consistency, proof

• Assess: relative importance, facts, case theories

Review: The Basics

• Determine the key players, topics, elements– In larger cases, sort by each for ease of access

– More easily demonstrate proof points

• Allows specialization and discrete focus

• Streamlines review by pre-categorizing documents, where possible

Review: Organize by Categorizing

• Electronic database allows for searching by keyword, custodian, author, or subject

• Beware of Search Pitfalls:– Misspellings, accents, verb endings– Colloquial phrases, code words

• Start broad, narrow searches, and follow trail

• Tag by search terms/save searches for review

Review: Organize by Searching

• Devise a plan for organized document review

• Divide by party, subject, custodian, or blocks– Case theory can help sort by proof elements

– Searches, sorting are crucial in large cases

• Track status of document review

Review: Assign

• Tagging Scheme, for example:

– Core: e.g., hot, cold, relevant

– Issues: e.g., product market, effects, justifications• Should match theory of case / investigational plan

– Type: e.g., annual report, forecast, organizational chart

• Too much specificity or generality is unusable

• Consistency and communication is key

• Creating the scheme is an iterative process

Review: Mark/Tag

• Step Back: What did the documents teach you?– New facts or new theories may develop– May inform you that there is no antitrust

violation

• Additional document requests, interrogatories, or possible witnesses

Review: Assess

• Prepare for Witness Hearings: organize by witness

• Possible Uses: – refresh witness recollection – better understand events – find out if other document types exist

Prove: Documents in Hearings

• Prepare Proof Outline: organize by issue

• Indicates where additional proof is necessary

• Allows quick quoting, efficient brief writing

• Documents may be rebuttal of target’s testimony

Prove: Documents in Proof Outlines

• Request: specifications, definitions, instructions

• Receive: coordinate, manage production

• Review: assign, mark/tag, organize, assess

• Prove: using requested documents to prove case

Summary: Document Requests