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Extensive document requests as part of complex merger reviews where the transaction raises significant antitrust concerns have been an established investigative technique in the US for many years. However, it is increasingly becoming a focus in other jurisdictions, such as the EU and the UK. This is particularly relevant in the context of bolt-on acquisitions and disposals of portfolio companies to industry buyers. Requests by the EC to produce millions of pages of documents (including emails and other electronically stored documents) on short notice based on keyword searches are becoming routine in complex transactions. The effective use of e-discovery tools and forensic software is now a must-have on big deals.
In the context of notifications made using the simplified procedure, parties will need to provide the transaction documents and certain financial statements as well as certain other internal documents:
The document requests in the EU and US do not only cover strategy documents prepared for the particular transaction, but also ordinary-course-of-business documents that the purchaser has created well before the merger is announced. Competition agencies are well aware that the final investment committee papers or strategy documents will usually have been reviewed by antitrust lawyers, so they will rely more heavily on documents created in the ordinary course by lower level management if this helps support their theories of harm. Statements can be taken out of context and be difficult to explain away. It is therefore becoming more and more important for PE houses and financial sponsors to have appropriate document creation and document retention guidelines issued to deal teams (and, crucially, external deal advisers like banks and market consultants) at the outset of a deal.
An example policy can be found here