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The role of eDiscovery in antitrust matters

The overwhelming task of sifting through terabytes of electronic data during a Competition Bureau information request can be daunting — but it can be easier with the technical savvy of legal technology company Epiq, says Jason Bell-Masterson, director of its Toronto branch.

Bell-Masterson says eDiscovery for antitrust matters involving Section 11 demands and Supplementary Information Requests (SIR) can be complicated because of the amount of data that must be gathered and reviewed within a prescribed time limit.

Section 11 orders under the Competition Act are sometimes issued under its criminal provisions, but they also deal with mergers and other reviewable practices, he tells AdvocateDaily.com.

"That grabbing of information can be very broad, but that’s not always the case," Bell-Masterson explains. "For example, with some Section 11 cases, the Bureau will send a document that says, 'Here's the information we want, you need to provide it within the next 60 days.'

"The requests themselves are usually fairly straightforward, involving a few pages of questions, and where we come into play is when the Bureau requests documents or records related to specific issues," he says.

"The complexity comes in the amount," Bell-Masterson says.

Epiq has gained the technical expertise needed in dealing with the Bureau by providing service to firms that were served with Section 11 or SIR requests, he says. The firm's experts will often join lawyers to discuss technical details and the appropriate format of production.

"And the Bureau knows us. They're comfortable that we know what we're doing, so there are fewer issues when it comes time to do the document production," Bell-Masterson says. "We do a representative sample of a few documents to make sure and then complete the full set.

"That process goes smoothly when you're dealing with a vendor who has handled these kinds of productions in the past and knows what to look out for," he says.

Epiq's involvement begins with a lawyer identifying which employees are the gatekeepers of the germane information the Bureau wants to review, he says. Sometimes that is done in conjunction with the Bureau, where negotiations will add — or subtract — employees.

"You settle on a list of the key staff who will most likely have information pertaining to the investigation or the merger," Bell-Masterson says. "To help, we have prepared questionnaires to identify where an individual is likely to have applicable data stored."

The interviews help determine if the information is stored on a computer or phone, if any relevant texts were sent, and whether employees used a shared drive location or know if they have specific places on that drive where the documents are stored, he says.

Epiq will also speak to the firm's IT department about emails and where they are stored.

"Some companies are more experienced with this than others and they'll have in-house teams that understand the process,” Bell-Masterson says.

"But often these requests relate to a company involved in its first merger — or maybe its only merger — and they have no expertise and their IT team is going to need some guidance in identifying and collecting the information," he says.

Epiq has a forensics team who can either work remotely or on-site to collect images of laptops and desktops, including information on a hard drive and data stored beyond the visible systems, such as deleted items.

"We also have tools that can recover data that isn't visible to the user on a day-to-day basis," Bell-Masterson says. "We do that in a way that preserves all of the information, including the metadata, and is defensible in court.

"It's a long process, but there’s software that can go into that space and recreate the files, even without a specific reference to them," he says.

In some cases, Bureau investigators seize what can amount to terabytes of data, he says, adding that Epiq can organize and sift through it to efficiently identify the sought-after information.

"Before we can do anything, we identify what the Bureau seized, and the specific information that may be of interest," Bell-Masterson says. "We can go through it in an automated way to pull out information that was user-created, or exclude material that was not user-created.”

The firm can also help analyze the "My Users" folder in computers with Windows operating systems.

"It is a little different for Macs," he says. "They're harder to deal with because they store files in different formats and locations, but we have a fair amount of experience dealing with them."

If the Bureau collected phones, Epiq’s experts can analyze the content that’s most likely to be of interest, including information on apps, texting programs, and whether there are documents stored on the device, Bell-Masterson says.

Often, the data set is huge, and there’s not much time to deal with it, Bell-Masterson says.

"At that point, we frequently use search terms," which are often negotiated with the Bureau to find the relevant material, he says.

Epiq also uses tools such as Technology Assisted Review (TAR), which has a sophisticated program to leverage the coding of thousands of documents to assess what might involve a million documents.

"It allows you to say, ‘based on the thousands of documents reviewed out of this batch of one million, these 2,000 are the most likely to contain the relevant information in this matter,’" Bell-Masterson says. "Within the first week of having the data, you can get to the real heart of what the Bureau is interested in.

"This saves a great deal of time and money," he says. "The most expensive part of the process is usually the human review of documents to determine what will be produced for the Bureau and what needs to be held back as privileged communication."

The smaller the universe of documents someone needs to look at, "the more you save and the more efficient you get," Bell-Masterson says.

"You're much more likely to see the documents you care about," he says. "In a normal review, only 10 to 30 per cent of what you're looking at may be relevant. With our review, it’s more likely that 80 to 90 per cent of what is being looked at is pertinent.

"With Epiq's help, lawyers can find the smoking gun, or the lack of one, much faster," Bell-Masterson says.

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