Key Takeaway: Second-request success is driven by early forensic planning and strategic collection workflows to strengthen defensibility and reduce burden, time, and cost to organisations.

Second requests in US Antitrust and Competition merger reviews have always been demanding, but growing data volumes, hybrid work environments, and emerging technologies are introducing new layers of complexity.

Speed, accuracy, and defensibility are necessary for meeting regulatory compliance. Legal teams need a thoughtful, forensics-driven approach to data handling from the outset of the second-request process, including custodian interviews and scoping, for an efficient road to compliance.

Second Request Stressors: Compressed Timing and Expanded Data Volumes

Timing is the primary stressor of any second request. Regulators expect thorough review of large volumes of data, often spanning multiple systems, including personal and company-issued devices, collaborative platforms, and messaging applications, all within compressed timeframes. Organisations must simultaneously identify, preserve, collect, search, review, and ultimately produce significant amounts of data.

Early collaboration between legal, IT, eDiscovery, and forensics teams lays the groundwork for effective second-request compliance. Data collection sets the tone for the overall process; getting your collection strategy on track from the start saves time, cost, and unnecessary headaches.

Responding to the Second Request Electronically Stored Information Questionnaire

Thoroughly addressing the government’s Questionnaire on Electronically Stored Information (“ESI Questionnaire”) is a critical step in any second request. The ESI Questionnaire is the government’s formal mechanism for understanding how an organisation creates, stores, manages, and uses electronic data relevant to the transaction.

Getting the questionnaire right the first time is essential. Clear, accurate, and concise responses prevent follow-up questions and supplemental requests, reducing delays that affect the overall deal closing timeline, and constructs a data map for collections.

Ultimately, the client is the source of truth for this information. It is crucial that the right stakeholders are involved in these discussions and IT interviews. An experienced forensics team can help navigate conversations with IT and ensure accurate, defensible responses.

Custodian Interviews: Details Matter in Second-Request Forensics

Custodian interviews are a key component of a successful second-request response. When handled effectively, they enable a swift and targeted forensic collection strategy. When vague or absent, they stall and complicate the collection process. The custodian interview presents a rare opportunity to gather detailed information that will inform collection scope and prevent follow-ups, undue delays, and overcollection.

While custodian interviews can be intimidating, an experienced forensics partner can join to optimise the process, for example, by asking more technical follow-up questions to document specific locations, systems, and items of interest. Questions should seek to determine relevancy and explore not just what is used, but how, why, and what specifically is being used within it.

For example, when discussing mobile devices, teams should distinguish between personal and company-issued phones, device make and model, work-related usage, and whether usage is unique to the device and substantive or logistical. Screensharing can be extremely valuable for laptops and cloud-based storage, enabling clearer documentation and a better understanding of how specific systems are used. Capturing these forensic details early accelerates collections and minimises disruption later in the second-request process.

Jurisdictional Considerations in Global Second Requests

Jurisdictional considerations present a considerable challenge in global second requests. Organisations often operate across multiple legal and regulatory frameworks, making it essential to understand, early in the process, where the data lives and which laws apply.

The most common jurisdictional concern is adherence to General Data Protection Regulation (GDPR) restrictions on collections, processing, transfer, and review of personal data. Early data mapping discussions can identify data outside the expected jurisdictions and will get ahead of any additional approvals, agreements, notices, or other documentation and considerations that may be required before collections begin.

Constant Collaboration: Emerging and Complex Data Sources

Hybrid work environments and emerging technologies changed second-request collection scope and strategies. Modern investigations involve messaging applications, AI tools, notetaking applications, and expansive collaborative environments where messaging and document storage are commingled.

Collection strategies must balance speed, data complexity, and custodian impact, with organisations often opting for remote collections where possible.

However, there are still elusive data types that require onsite collection. For example, certain ephemeral messaging applications may require advanced tools deployed in person. Flexibility to offer tailored solutions, including both remote and onsite collection options, is key to moving through second-request collections quickly and with minimal burden to custodians.

Alleviate Privacy Concerns Through Transparency and Secure Forensic Workflows

Security concerns are expected when personal devices and data are in scope. Providers must articulate secure and transparent forensic workflows to build trust with counsel, custodians, and IT teams. Mobile devices often contain deeply personal information, demanding targeted, but still defensible, collection approaches. Customised forensic workflows may be required, but they must be thoroughly vetted to ensure relevant metadata is preserved. Clear communication and early expectation-setting builds trust and facilitates cooperation throughout the second-request process.

Forensic Strategy Supports Second-Request Success

Second requests involve high stakes, tight deadlines, and increasingly complex data environments. By pairing early forensic planning with thorough interviews, detailed data mapping, and flexible collection workflows, legal teams can manage second requests more confidently and efficiently. As this landscape shifts, a thoughtful, methodical approach to data handling remains the foundation of second-request success.

Learn more about Forensics and Antitrust and Competition legal services.

Devon Avallone-Graves, Senior Forensic Project Manager, Legal Solutions

Devon establishes and operates defensible, efficient forensic collection workflows that enable corporate legal departments and law firms to meet regulatory and compliance obligations during government investigations, antitrust matters, white collar litigation, and internal reviews.

As a licensed lawyer, Devon combines legal knowledge with forensic expertise to assist clients in high‑stakes matters.