Second requests and the timeline a board should plan for
A second request extends a merger review by months, not weeks, and the extension is driven by document production rather than argument. Boards that plan around the production calendar keep the deal intact; boards that plan around the legal theory usually lose a quarter to rework.
What changes on the day the request arrives
The waiting period stops running until the parties certify substantial compliance. That single fact reshapes every other date on the deal calendar: financing commitments, integration planning, customer announcements and the outside date in the purchase agreement all have to be read against a clock that nobody controls precisely.
The practical consequence is that the first fortnight belongs to scoping. Counsel negotiates custodians, date ranges and search terms with agency staff, and every concession made in that window saves weeks of collection later.
Building a calendar that survives contact with the agency
We ask clients to keep two calendars side by side. The first is the deal calendar the board already knows. The second is a production calendar built backwards from a target certification date, with collection, review, privilege logging and quality checks each given their own window.
- 01
Fix the custodian list
Agree the named custodians early and resist late additions that reopen collection for people with marginal involvement.
- 02
Stage the review
Run first-level review in parallel with collection, so privilege calls start while the last custodians are still being imaged.
- 03
Log as you go
Privilege entries written during review are cheaper and more consistent than entries reconstructed at the end.
- 04
Certify deliberately
Substantial compliance is a representation. Certify when the record supports it, not when the calendar wants it.
The review is paced by the production, so the most useful thing a board can do in the first month is protect the people who produce it.
Serrano Litigation, partners' note
Where boards lose time
The common delays are internal. Business leaders are pulled into interviews during the busiest trading weeks, IT teams discover archives nobody mapped, and board materials are revised after the request lands, which creates a second version of the record to explain.
None of this is unusual, and none of it is fatal. It is simply cheaper to plan for it than to absorb it.
| Phase | Typical window | Who owns it |
|---|---|---|
| Scope negotiation | 2 to 4 weeks | Outside counsel, general counsel |
| Collection and imaging | 3 to 6 weeks | IT lead, discovery vendor |
| Review and privilege | 6 to 12 weeks | Review team, partner in charge |
| Certification | 1 to 2 weeks | General counsel, signing officer |
Illustrative planning ranges. Every review runs to its own record and its own agency staff.
Common questions
Can a second request be narrowed after it is issued?
Often, yes. Staff will usually discuss custodians, date ranges and search methodology, particularly when the parties explain concretely why a category adds burden without adding information.
Does the board need to change its meeting schedule?
Rarely. It helps to add a standing fifteen-minute review item so directors hear the same short update in the same shape at every meeting.
Should integration planning stop?
Planning can usually continue within clean-team rules. Implementation steps that would combine operations before clearance should wait.
This article is general information, not legal advice, and reading it does not create an attorney-client relationship. Every matter turns on its own facts.
