November 9, 2020

Antitrust: What Does the FTC Want When It Asks for “All Documents”?

The FTC’s Bureau of Competition recently blogged some guidance about the types of communications covered by the “all documents” specifications in its Second Requests, CIDs & document subpoenas. Not surprisingly, the agency says that the term encompasses a lot more than email & files:

Executives and employees of modern businesses communicate with one another, and with suppliers and customers, in a wide variety of ways. Especially with the current challenges of in-person meetings, electronic exchanges are now the norm for doing business. Emails, memoranda, voicemails, SMS/text messages, instant messages, hard copy notes and collaborative documents are all routinely created and circulated in the ordinary course.

It should come as no surprise, then, that each of these forms of communication (among others) are covered by the “all documents” specifications in our Second Requests, Civil Investigative Demands, and subpoenas for documents. This means that, absent modification of the scope of a request to which FTC staff have affirmatively agreed, recipients must preserve such documents and include them in their collection and production efforts in FTC investigations. As the forms of communication evolve, so too do the obligations of counsel to search for and produce communications in whatever form they take.

Regarding this last point, the Bureau cautions that recipients shouldn’t unilaterally omit any category of documents and materials from their document preservation, collection, & response process. Such action may lead to unwelcome consequences, including rejection of a certification of substantial compliance with a Second Request and the lengthening of the time required for the FTC to complete its investigation.

The blog also cautions that when counsel makes representations to its staff about responsive documents, counsel’s duty of candor and professionalism when practicing before the FTC is implicated, and the Bureau will take violations of that duty seriously.

John Jenkins