The DOJ recently published an updated Model Second Request (Model) (formally known as a Request for Additional Information and Documentary Material), that applies to all Second Requests issued on or after December 12, 2016. The Model is intended to make it easier for parties to respond to, and for the DOJ to review, the information sought in a Second Request. The major changes, which are geared toward better efficiency in the process, include:

In addition, the Model has new instructions regarding e-discovery that better reflect current practices and that the DOJ stated seek to balance discovery burdens with the DOJ's need for information, including instructions for the use of:

Generally, each Second Request requires a search of an entire company for documents and data that the DOJ identifies as relevant to a merger investigation. Companies are encouraged to propose modifications, which the DOJ must agree to in writing to become effective.

In 2015, the FTC also revised its Model Second Request to reflect changing merger review practices (see Legal Update, FTC Issues Revised Second Request and Merger Review Best Practices).

For guidance on the Second Request process, see Practice Note, Second Requests in Merger Investigations.