House Antitrust Request May Push Tech Companies to Their E-discovery Limits
Google, Amazon, Facebook and Apple are faced with a tight 30-day deadline to turn over a lengthy list of documents and communications to the House Judiciary antitrust subcommittee. But there's a good chance they'll need an extension.
September 24, 2019 at 07:00 AM
5 minute read
Last week, the House Judiciary antitrust subcommittee issued document requests to tech giants Google, Facebook, Amazon and Apple that could see each of the companies' respective e-discovery teams putting in some long hours over the next few weeks.
The list of materials the tech companies have been tasked with providing is both extensive and wide-ranging: financial statements, memoranda, spreadsheets and executive communications pertinent to various acquisitions or internal business decisions. They are expected to be delivered to the House Judiciary subcommittee no later than October 14.
Even with all of the technological might at their disposal, can Google, Facebook, Amazon and Apple cross the finish line in time? Megan McKnight, a founder and managing member at Tealstone Law, thinks probably not.
"There are lots of reasons why people wouldn't be able to comply other than obstructionism. There are lots of reasons why well-intentioned businesses would have a hard time," McKnight said.
Those reasons may have very little to do with the state of e-discovery technology. Kelly Twigger, founder of the e-discovery and information law firm ESI Attorneys, said while 30 days is a typical response time for a government investigation, that standard was implemented before the massive amounts of electronically stored information that companies are dealing with today came into existence.
Technology makes it easier to parse that information, but there's still a significant amount of human-centric work that has to be completed beforehand with regards to each category of information a company like Amazon is being asked to produce.
Inquiries made with regards to Amazon's acquisition of Whole Foods, for instance, would require someone to compile a list of company personnel who were involved with the deal, a time frame spanning back to the earliest talks or negotiations and—perhaps most importantly—if the documents in question even still exist and, if so, where they are located.
"Just for this one topic alone, I would say that is probably a massive production," Twigger said.
But that's not even the biggest complication on the horizon. McKnight pointed to conflicting legal obligations and privacy concerns pertaining to certain materials that may fall within the scope of the inquiry.
For example, some of the internal communications requested by the House Judiciary subcommittee may contain sensitive legal topics that fall under the umbrella of attorney-client privilege.
"Reviewing documents to protect privilege could take a very long time," McKnight said.
Mary Mack, executive director of the Association of Certified E-Discovery Specialists (ACEDS), agrees it's likely not possible for tech companies to produce all of the materials requested by the October deadline.
Some of the obstacles on the board may include e-discovery challenges that are unique to a company built on technology.
Mack pointed out that a tech company may constantly be making changes to its workflows, whether it's the way that content is displayed within a Word document—which could throw off deduplication tools—or they way that they calculate dates in relation to email.
If those changes weren't made with e-discovery demands in mind, they could impact the speed of the process.
"We've got to hope that they built some functional hook that makes it easier for them to look back at their data over time for legal purposes," Mack said.
One thing the tech companies could have working in their favor is their experience with similar antitrust and competition related inquiries in the EU. For example, EU regulators hit Google with an antitrust fine of $1.69 billion in March for practices related to the company's "AdSense for Search" program.
"[Companies] have already produced to some governmental bodies, [though] maybe not in the same format that the U.S. is requesting. So they've got at least some materials maybe already collected, and probably in the general area that the government is asking," Mack said.
But that could still leave other materials that go unanswered for by the time the October deadline rolls around—which is not necessarily the end of the world.
Twigger said there are very few requests for documents that are actually met within 30 days, with delivery instead being spaced out in chunks over a more forgiving time frame.
"Rolling productions are very common, particularly in government investigations," Twigger said.
The proposition is not entirely without its incentives. Mack raised the issue that the government would ultimately have to store and navigate any data that was turned over, so affording companies the time to whittle those submissions down to the bare essentials makes sense.
But Lon Troyer, managing director of professional services at the e-discovery company H5, thinks the tech giants could still be staring down the barrel of some steep expectations.
Does Google really want to admit that it's having trouble searching for something?
"The government is going to hold companies like this probably to a higher standard than companies that are less search and technology focused. The government is going to expect them to do things that other companies struggle with just because of the nature of their work," Troyer said.
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