On 27 January, 2021, TransPerfect Legal Solutions (TLS) held the second day of the inaugural EU/UK Competition Regulation Virtual Conference. Day one focused on the changing regulatory landscape. Day two turned to the advent of big data and how technology is a vital tool in the arsenal of the modern competition practitioner.
Sasha Toussaint, Director in TLSs London office, was joined by Guillaume Aubron, Counsel at Darrois Villey Maillot Brochier; Greg Bonn, Senior Associate at Latham & Watkins; Bryant Isbell, the Managing Director of Global eDiscovery and Data Advisory at Baker McKenzie and TransPerfects very own Katie Perekslis, Vice President of E-Discovery Project Management.
Whether its for merger control, dawn raids or cartel investigations, competition proceedings require the interrogation of significant amounts of documentation production in short timelines. In the big data era, budgetary concerns as well as compliance itself often turn on the scope of the information available and timelines imposed on its production.
Clients, lawyers and regulators must fight fire with fire.
Across the board, we are seeing both clients and regulators demand the use of technology. For clients, applying technology drives down the cost associated with these proceedings and limits the amount of information required for production. For regulators, it allows them to see key material faster and using fewer resources. Furthermore, there is empiric evidence (in mainstream litigation versus competition work) that technology can be more consistent and accurate than human review.1
In France, legal technology is not used as widely as in the US or UK. However, French lawyers see clear benefits to using technology in merger control and dawn raids. In the latter, technology needs to be deployed early, as the FCA seizes entire mail boxes before extending a fairly short time frame for lawyers to complete a privilege review ahead of their own review. Speed, therefore, is really of the essence. Unlike many other jurisdictions, there are no requirements for internal document production on the filing form itself and that really only comes into play later on in proceedings. However, it is accepted that as data volumes continue to grow, technology will be a necessity to ascertain risk for these matters, regardless of the regulatory burden.
In the UK, the technology-agnostic CMA is increasingly making use of its formal information-gathering powers. Those powers are also being used at varying stages during the process including working to establish evidence for an alternative counterfactual or a theory of harm claim. Parties similarly use technology at the back end regularly to formulate their strategy in response to these growing requests.
The constant across both jurisdictions (and likely others) is the use of technology to speed up the privilege review. Automating the workflow in its entirety is risky, but the technology can significantly accelerate human review.
What is considered responsive plays a large role in the documents produced in these proceedings. These decisions will have an effect on how and what data is collected and shared. Whilst the CMA retains significant control on the determination of responsiveness (described in more detail below), the European Commission takes a more balanced, collaborative approach, often engaging with lawyers and technologists.
TLS has assisted on these negotiations first hand and rather than simply paying lip service, we (together with outside counsel) have materially impacted search and responsiveness parameters. In a recent RFI, we analysed the resulting set of responsive documents based on the Commissions proposed search terms and determined the terms were overly board. When we presented these metrics to the Commission, together with the methodology used, they were amenable to refining the search terms and data pool.
Ultimately, the regulators are amenable to changing the scope of their requests as long as the law firm and vendor work with the regulators to provide transparency and prove their methodology is logical and defensible.
If law firms can continue, as above, to guide regulators with quantitative data and defensible methodology, there will be a shift in the way data is gathered, culled and reviewed. Deploying technology and analytics is beneficial to all parties involved, particularly given its ability to better manage the never-ending increase in data volumes and sources as well as time constraints in competition proceedings.
The CMA, as compared to the DOJ, FTC or the Commission, can and is asking for more extensive information earlier in the process.
As law firms and their clients lean on the benefits of legal technology, so too do the regulators. They are becoming increasingly more engaged in the process, which has procedural and legal implications.
In English proceedings, e-discovery technology has been a common feature for many years but only recently in merger control. The main question focuses less on the if and more the when. The CMA is increasingly looking to gather evidence, which encourages parties to lean on the guidance and the CMA as they gather the information required. This can include internal documents and even emails and instant messaging chats. Similar to train of enquiry investigations, once they have a handle on the data they are able to issue further requests. These can be topic and custodian specific, or wider using search terms. Unsurprisingly, the CMA is actively recruiting legal technology professionals to help analyse the data that comes in to better inform its requests for information.
This is likely to cause significant delays at pre-notification resulting in a knock-on effect for the entire timetable, as was the case in Amazons acquisition of 16% in Deliveroo.
Regulators, particularly the CMA, are throwing their weight around when it comes to the issue of responsiveness. They believe they have the power determine what is and is not responsive through various search strategies. However, this poses an issue around personally identifiable information, documents being produced that fall out of the scope of the investigation and the general feeling that this type of information-gathering request is a regulator-sponsored fishing expedition.
In general, document production in competition proceedings has become more of an iterative process and the CMA expects to be involved. As a lawyer or e-discovery professional, you can anticipate engaging with your e-discovery and forensic counterparts at the CMA every step of the way.
Whether leveraging basic technology like search terms and email threading or more complex technology like TAR 1.0 and Continuous Active Learning (CAL), legal teams and technologists must ensure proper processes are followed.
As technology advances, it is easy to see the benefits of using advanced analytics, TAR 1.0 or TAR 2.0 (Continuous Active Learning) in data-heavy matters. Regulators do not dictate what type of technology is used, but they are leaning on technologists and law firms to understand the what, how and why.
TAR 1.0 (Technology-Assisted Review) was one of the first AI-based workflows. It is an iterative process where technologists develop an initial training set of documents and a subject matter expert reviews that data before stopping review to run the algorithm that will predict the relevance of the remainder of the documents. Additional documents may be added to the training set based on the richness of the data set, and a separate control set that is statistically representative of the data set is then reviewed by the same subject matter expert and used to validate the results, producing metrics such as precision, recall, depth of recall and F1 score very much a start-stop-start-stop process.
CAL is a newer iteration of TAR and prioritises the data in real time based on the coding decisions of reviewers. As with linear review, a lawyer begins tagging documents for responsiveness. The difference is the technology is working in the background, in real time, to pull other documents that are likely similar to the previously tagged responsive documents until the reviewers reach a point of diminishing returns.
In TLSs experience with merger control projects where the goal is compliance to produce a large quantity of relevant documents in a short period, there is a tendency to stick with TAR 1.0 because it is not cost or time effective to put human eyes on as many documents as you would with CAL. The key in this process, however, is to make sure the subject matter expert is available to review the training and control sets to ensure consistent and accurate results because we apply their review decisions for a small population to the larger document set. Unlike in a linear or CAL review, a few miscoded or inconsistently coded documents can have detrimental effects on both the quality of the review and the time it takes to reach stabilisation. Due to that limitation and a need to put human eyes on all relevant documents for fact finding, TAR 2.0 still tends to be the more widely used workflow in general litigations and arbitrations given its accessibility. With either of these workflows, law firms must produce a clear methodology on actions taken, including validation process. Some of these methods include:
In TLSs experience, regulators tend to focus on achieving high recall and are less concerned with low precision (AKA overly producing documents). But precision is very important to clients, as they dont want more data to go to the regulators than necessary, particularly if data is sensitive in nature.
All panellists agree that it is critical to produce very clear, step-by-step methodology before work has begun, both in privilege and responsiveness reviews. If the work is completed but the method is not approved, the law firm will be required to start over, which can be problematic given the tight deadlines associated with competition work.
Transparency is key in assuring the regulators that law firms have met their requirements and provided the documents required to make their decisions. As long as law firms and technologists are being defensible and reasonable about the methods, the regulators will typically approve the use of technology to work with them and with their clients.
What does the future hold?
There is a clear appetite from clients and regulators to adopt the use of legal technology in competition proceedings. Law firms and litigation support providers will continue to spearhead this movement and are constantly looking at new tools and workflows to manage big data in a defensible and efficient manner.
Law firms will leverage analytics and investigations tools where time is of the essence the first to apply for leniency or immunity or to assess risk. Getting a handle on what their clients have early will be key.
In time, the FCA, CMA and Commission may collaborate and follow certain DOJ practices given its experience with larger data sets, deal flow and technology. And it will be in parties best interests to work alongside them to design a process that works for everyone.
Data is inescapable. Clients, lawyers and regulators continue to play an ever-changing game of catch-up to leverage technology. The procedural and legal considerations grow and change as data volumes increase and data sources diversify, and it is imperative to lean on these tools to provide the best outcome for all parties involved.
You canwatch the full recording of this panel here.
1 Pyrrho Investments Ltd v MWB Property Ltd:   EWHC 25. Paragraph 31
- Techlash continues to batter technology sector - Brookings Institution - April 2nd, 2021
- CodeCrew students honored for their work in the technology field - WREG NewsChannel 3 - April 2nd, 2021
- Technology And The Future Of Work In Finance: A Q&A With Paychexs CFO - Forbes - April 2nd, 2021
- Options Technology Announces Acquisition of Fixnetix from DXC Technology - Business Wire - April 2nd, 2021
- Wireless Gigabit Market with COVID-19 impact by Product, Technology, Protocol, End-use and Geography - Global Forecast to 2026 - PRNewswire - April 2nd, 2021
- Europe's chance to lead the green technology race - Financial Times - April 2nd, 2021
- We need to strengthen and accelerate US science and technology progress | TheHill - The Hill - April 2nd, 2021
- Beauty filters are changing the way young girls see themselves - MIT Technology Review - April 2nd, 2021
- Silicon Valley startup invents 'groundbreaking' new technology that could change the way we travel - Greater Greater Washington - April 2nd, 2021
- COVID-19 Has Forced an Evolution of Campus Safety Technology - Campus Safety - Campus Safety Magazine - April 2nd, 2021
- Revolutionary Technology Upgrades to the School of Music - The UCLA Herb Alpert School of Music - UCLA Herb Alpert School of Music - April 2nd, 2021
- TerraLithium Receives Affirmation of Patents for Foundational Lithium Production Processes and Technologies - PRNewswire - April 2nd, 2021
- Align Technology to Announce First Quarter 2021 Results on April 28, 2021 - Yahoo Finance - April 2nd, 2021
- Stocks making the biggest moves in the premarket: J&J, Emergent BioSolutions, Micron Technology & more - CNBC - April 2nd, 2021
- ST Equipment & Technology Teams with Salt River Materials Group on Fly Ash Recycling System - PRNewswire - April 2nd, 2021
- Honeywell To Provide Critical Navigation And Sensor Technology For Pipistrel's Unmanned Cargo Aircraft - PRNewswire - April 2nd, 2021
- Vellore Institute of Technology team electrifies houses in rural Karnataka - The Hindu - April 2nd, 2021
- Aerospace Robotics Market Research Report by Type, by Technology, by Operation - Global Forecast to 2025 - Cumulative Impact of COVID-19 - Yahoo... - April 2nd, 2021
- NASA invests in small business projects to advance technology - Northeast Mississippi Daily Journal - April 2nd, 2021
- Why 3 Analysts Think Micron Technology Stock Is An Attractive Choice - Yahoo Finance - April 2nd, 2021
- How Unity Is Helping Creators Around The World Use Technology To Imagine A Better Future - Forbes - March 31st, 2021
- Wall Street dips, with technology the biggest drag - Reuters - March 31st, 2021
- Technology helps family stay connected to 93-year-old grandfather - NEWS10 ABC - March 31st, 2021
- 'Big Storage' Is the Next Big Technology in the Climate Fight - Bloomberg - March 31st, 2021
- Worldwide Facial Skin Ablative Treatment Industry - by Technology, Application and Demography - ResearchAndMarkets.com - Business Wire - March 31st, 2021
- The science and technology that can help save the ocean - MIT Technology Review - March 31st, 2021
- DJO Invests in Next-Generation Augmented Reality Technology Primed for ASC Market Growth - Business Wire - March 31st, 2021
- InMobi Dominates MMA SMARTIES MENA 2020 with 15 Awards Including Technology Enabler of the Year and Best in Show - Business Wire - March 31st, 2021
- Healthcare Technology Innovator SSG Rolls Out Digital Platforms to Accelerate the Fight Against COVID-19 - Business Wire - March 31st, 2021
- Juniper Research Named as Top Three Most Influential Analyst House Globally by Telco Technology Buyers - Business Wire - March 31st, 2021
- A Technology Partner Can Help Midsize Businesses Accelerate Digital Transformation - SPONSOR CONTENT FROM DELL TECHNOLOGIES AND INTEL - Harvard... - March 31st, 2021
- Global Automotive Antifreeze Market (2020 to 2027) - by Fluid Type, Technology, Application and Distribution Channel - ResearchAndMarkets.com -... - March 31st, 2021
- Investment Opportunities of Big Data Technology in China - Growth, Trends, COVID-19 Impact, and Forecasts 2021-2026 - ResearchAndMarkets.com -... - March 31st, 2021
- ST Equipment & Technology Teams with Salt River Materials Group on Fly Ash Recycling System - Yahoo Finance - March 31st, 2021
- 5 Emerging IoT Technologies You Need To Know In 2021 - CRN - March 31st, 2021
- Successive Technologies and Strapi Announces Strategic Partnership - PR Newswire India - March 31st, 2021
- Spotify Technology S.A. to Announce Financial Results for First Quarter 2021 - Business Wire - March 31st, 2021
- Technology, agriculture's friend for the sustainable farms of the future - Euronews - March 31st, 2021
- House panel offers its plan to double NSF budget and create technology directorate - Science Magazine - March 31st, 2021
- Building customer relationships with conversational AI - MIT Technology Review - March 31st, 2021
- TPConnects, the Technology Provider, Announces That Eastern Airlines is Investing in New Distribution Capabilities With IATA's NDC Level 4... - March 31st, 2021
- MetroWest towns and cities working together to offer clean energy technology - MetroWest Daily News - March 31st, 2021
- Vietnam's CamLy Group Founder introduces innovative technology to the global market, adding to her inspirational businesses ventures - Yahoo Finance - March 31st, 2021
- Outlook on the Cell Therapy Global Market to 2027 - by Therapy Type, Product, Technology, Application, End-user and Geography - GlobeNewswire - March 31st, 2021
- Worldwide Aircraft Maintenance Tooling Industry to 2027 - Featuring Farwest Aircraft, Inspection Technologies and Red Box Aviation Among Others -... - March 31st, 2021
- Black graduates 'shut out' of academic science and technology careers - The Guardian - March 29th, 2021
- Global Cloud-based Data Lake Market Technology Progress, Business Opportunities and Analysis 2021 to 2027 | Top Companies Analysis- Amazon Web... - March 29th, 2021
- Governor Lamont Announces Launch of Information Technology Optimization Process Within State Government - CT.gov - March 18th, 2021
- Retalon Announces Breakthrough Application of Deep Learning Technology in Business Specific Predictive Analytics - PRNewswire - March 18th, 2021
- MIT Technology Review Announces EmTech Next 2021 Virtual Conference, June 8-10, hosted in partnership with Harvard Business Review - PRNewswire - March 18th, 2021
- DOD Working With Norway to Develop High-Speed Propulsion Technologies - Department of Defense - March 18th, 2021
- Is Amkor Technology (AMKR) Outperforming Other Computer and Technology Stocks This Year? - Yahoo Finance - March 18th, 2021
- Citizens of the Week: Teens Teach Technology - The Philadelphia Citizen - March 18th, 2021
- Seniors receiving free virtual coaching on learning how to use technology - 13newsnow.com WVEC - March 18th, 2021
- FinFet Technology Market is Anticipated to Touch USD 268.66 Million by 2025 Growing at 40.3% CAGR | Market Research Future (MRFR) - Yahoo Finance - March 18th, 2021
- This BYU facial recognition technology is designed with hackers and accessibility in mind - KSL.com - March 18th, 2021
- Technology IPOs A Meeting of Cultures at the Tel Aviv Stock Exchange - JD Supra - March 18th, 2021
- Transplace Expands Logistics Technology Platform to Europe with its Newest Technology Release and the Opening of an Office in the Netherlands -... - March 18th, 2021
- Quanterix' Simoa Technology Accelerates Critical Plasma Biomarker Research Presented at the 15th International Conference on Parkinson's &... - March 18th, 2021
- Outsourcing Marketing Technology Support To Boost Efficiency and Profits - Part 2 - JD Supra - March 18th, 2021
- Leveraging AI/NLP technology to reduce health inequities and improve patient outcomes - MedCity News - March 18th, 2021
- Bob Bain Productions and Berlin Entertainment Choose TVU Networks' Technology for Seamless, Virtual Production of the 26th Annual Critics Choice... - March 18th, 2021
- First American Data & Analytics Named One of the Most Innovative Technology Companies in Both Mortgage and Real Estate by HousingWire Magazine -... - March 18th, 2021
- Hearing aid makers tackle the technology's 'number one problem' with AI - STAT - March 18th, 2021
- Interstellar disc that blasted by Earth was not alien technology. Heres what it was. - Mahoning Matters - March 18th, 2021
- Dicapta Corporation Accessibility Technology Makes It Possible For DeafBlind Individuals To Watch An Oscar-Nominated Film About Themselves For The... - March 18th, 2021
- Centerville police to crack down on speeding with help from new technology - WHIO Radio - March 18th, 2021
- How Mason City Schools Is Using Technology To Monitor Students' Mental Health - WVXU - March 18th, 2021
- Texas Medical Technology Launches Its Smart iNitrile Device for Putting on Sterile Gloves Easily, Safely, and Automatically - Business Wire - March 18th, 2021
- Insights on the Environmental Remediation Technologies Global Markets to 2025 - by Technology and Industry Application - Yahoo Finance UK - March 18th, 2021
- How HCCC's upgrades will help ensure health of everyone on campus - The Times Telegram - March 18th, 2021
- DataTrace Named One of the Most Innovative Technology Companies in Real Estate by HousingWire Magazine - Business Wire - March 18th, 2021
- SoftServe Wins Best Technology Response at the GSA Professional Awards 2020 - Business Wire - March 18th, 2021
- Nokia Technology To Be Integrated Across AWS, Google And Microsoft Platforms - Yahoo Tech - March 18th, 2021
- Securus Technologies Provides 40 Million Free Phone Calls to Incarcerated Americans Through First Year of COVID-19 Assistance - PRNewswire - March 18th, 2021
- Global Automatic Optical Inspection Market- GPEL Electronic GmbH, Koh Young Technology Inc., Mek Europe BV, Among Others to Contribute to the Market... - March 18th, 2021
- LOral technology incubators Guive Balooch on marrying beauty and tech - Glossy - March 11th, 2021
- Clevertouch by Boxlight Helps to Refresh Technology for The British Academy - Yahoo Finance - March 11th, 2021
- How technology helped Houston fight against the pandemic - InnovationMap - March 11th, 2021
- Global Indoor Farming Technology Markets, 2020-2021 & 2026 - Opportunities in the Development of Innovative and Cost-Effective Technologies &... - March 11th, 2021