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Challenging Overly Broad FTC Document Requests
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Challenging Overly Broad FTC Document Requests
When the Federal Trade Commission issues a civil investigative demand (CID) or subpoena during an investigation, the requests for information can sometimes be overly broad or unduly burdensome. Companies being investigated have the right to challenge requests that seem unreasonable in scope or relevance. Here’s an overview of strategies for challenging broad FTC document requests.
File a Petition to Limit or Quash
The first step is usually to file a petition to limit or quash the CID with the FTC Commissioner. This challenges the validity of the request and asks to narrow or eliminate certain portions. Grounds for filing a petition include the scope being overly broad, undue burden in complying, or requests outside the stated purpose of the investigation.
When filing the petition, it’s important to clearly specify the problematic portions of the request and explain why they are unreasonable. Supporting case law, previous FTC decisions, and affidavits can strengthen the arguments. Focus on the burden in terms of time, cost, and business impact required to comply.
Negotiate the Scope
Before going to court over a dispute, it’s worth reaching out to the FTC investigator or attorney handling the matter. Explain concerns over broad requests and propose ways to narrow the scope that still provide information relevant to their inquiry. This gives the FTC a chance to modify the requests and avoid litigation.
Negotiations may result in agreeing to produce a subset of documents, sampling data, or limiting the date ranges. If certain categories are less critical, the FTC may agree to drop them entirely. Clarifying definitions and terms can also help reduce ambiguity leading to overbroad interpretations.
Seek Judicial Review
If petitions and negotiations fail to limit unreasonable requests, the next step is seeking judicial review and relief. Under the FTC Act, a company can file a petition in federal district court asking the court to modify or set aside a CID. The standard of review is whether the inquiry is within the FTC’s authority and the requests are reasonable.
Courts will generally defer to the FTC’s discretion, so the burden is fairly high to prove the requests are truly excessive or irrelevant. Thorough explanations and specific examples are needed to convince a judge. Affidavits from compliance experts can demonstrate burden. Prior FTC decisions limiting similar requests can show unreasonableness.
Make Specific Objections
When producing documents in response to an FTC request, make specific objections to overly broad portions. Simply asserting a category is broad or burdensome is generally insufficient — detail the reasons in each objection.
For example, object to date ranges that encompass too long a period or activities beyond the stated scope. Explain how certain technical definitions make requests ambiguous or capture non-relevant materials. Provide statistics like number of custodians, systems, or data volume to demonstrate burden.
Offer Alternatives
Rather than just objecting, propose alternative scopes that serve the FTC’s needs while reducing the burden. Examples include offering particular date restrictions, subset of products, and sampling data rather than everything. Suggest ways documents can be narrowed using search terms, custodians, or data sources.
Being constructive shows a willingness to cooperate and good faith efforts to reach a reasonable compromise. It also gives the FTC options to still get information it needs without overbroad requests.
Consider Privilege and Confidentiality
While producing documents, ensure privileged materials like attorney-client communications or trade secrets are withheld from broad requests. Provide privilege logs detailing what is being held back and the grounds for each claim of privilege. Get confidentiality agreements in place if producing sensitive business information.
Stay Organized
Managing challenges to FTC requests takes extensive organization. Keep detailed records of objections raised, petitions filed, negotiations held, offers made, and any modifications agreed to. Track hours spent compiling materials and affadavits demonstrating burden. Keep evaluating for reasonableness as information is gathered.
With good preparation, companies can push back against FTC overreach while still cooperating with legitimate investigative needs. Though the FTC wields significant power, checks and balances allow protecting against undue burden from overly broad requests.