On September 8, the Canadian Competition Bureau released updated instructions for the production of
electronic records by merging parties responding to supplementary
information requests, or "SIRs" as they are known. SIRs
are thorough requests for data, e-mails and other documentation and
information that are issued in connection with complex competition
merger reviews, and are commonly viewed as the Canadian equivalent
of US Second Requests. The updated instructions set out detailed
parameters that the Bureau expects merging parties to follow when
responding to SIRs, and put an increased focus on large document
productions exported from specialized litigation support software.
The updated instructions are similar to the US Federal Trade
Commission's Bureau of Competition Production Guide.
The updated instructions contemplate two options for document
productions: (a) productions from computer systems without
sophisticated litigation export capabilities; and (b)
productions from specialized litigation software. The instructions
associated with the former type are straightforward, and similar to
the previous instructions: parties may simply produce documents in
their "native" format (e.g., Word, Excel,
etc.). The instructions associated with the latter type
are largely new, and much more complex: parties are expected to
produce documents in a specific and detailed manner, with a large
amount of "metadata" (e.g., author, date
created, date modified, etc.) set out in a separate
The precise nature of the updated instructions will help to
avoid technical issues (e.g., incompatibility) when
submitting large document productions to the Bureau. At the same
time, however, the "requirements" imposed by the
instructions present a number of issues for merging parties and
counsel to consider. For example:
The instructions strongly suggest that the Bureau expects that
parties' responses to SIRs will include a large volume of
documents, similar to US Second Requests. However, unlike its US
counterparts, the Bureau continues to expect parties to code and
index documents according to the precise question to which each
document is responsive.
This "specification coding" is often a highly manual
process that typically requires lawyers to review each document and
assign question-specific coding. It is impractical and extremely
costly when reviewing tens or hundreds of thousands of documents,
and frustrates parties' ability to use technological tools such
as predictive coding to assist in the review process. It is also an
increasingly anachronistic requirement, as the technical
sophistication of modern litigation software allows both merging
parties and the Bureau to quickly and easily search the entire
database of electronically produced documents to identify relevant
The instructions purport to set out "requirements"
that are not, in fact, required by law. For example, before
"de-duplicating" documents (i.e., using software
to eliminate duplicate copies of e-mails and other documents, to
minimize the costs associated with processing and review), the
instructions suggest that merging parties must provide the Bureau
with a written description of the proposed process to be used and
receive confirmation from the Bureau that the "deployment of
such processes permits the Company to fully comply with [the]
SIR." The Competition Act, however, merely requires
that parties certify that their SIR responses are, to the best of
their knowledge and belief, correct and complete in all material
respects. Standard de-duplicating methods are well understood by
experienced counsel and technology support vendors and as a
practical matter are routinely accepted by the Bureau.
Overall, we expect that the requirements of the SIR process will
continue to evolve rapidly as technology improves. Merging parties
should consult with competition counsel well in advance of complex
merger reviews, so as to understand and consider the implications
of receiving a SIR.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
The Commissioner of Competition addressed innovation, enforcement and policy initiatives at the Competition Bureau in his keynote speech, "Strengthening Competition: Innovation, Collaboration and Transparency."
Used car listing website operator CarGurus Inc.'s attempt to force rival Trader Corporation to supply it with vehicle listing data has encountered a dead end as the Competition Tribunal denied it leave to commence a private application under several provisions of the Competition Act.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).