The 2025 HSR Updates and How They Affect Ediscovery

The Hart-Scott-Rodino (HSR) Act premerger notification rules have recently undergone significant updates. These changes, finalized by the Federal Trade Commission (FTC) on October 10, 2024, were published in the Federal Register on November 12, 2024, and became effective on February 10, 2025.

Below, I’ll briefly cover the history and basic overview of the HSR Act, plus the recent updates to the Rules and what they mean for businesses and for ediscovery.

The history of the Hart-Scott-Rodino (HSR) Act

In 2026, the Hart-Scott-Rodino Antitrust Improvements Act will celebrate its 50th anniversary. Described as one of the most far-reaching changes in antitrust enforcement since the 1914 passage of the Clayton Act, it established the federal premerger notification program, which for nearly half a century has transformed how antitrust agencies conduct merger enforcement.

The act made it compulsory for parties to certain large mergers or acquisitions to notify, through the filing of an HSR form, the Federal Trade Commission and the Department of Justice (together, “the enforcement agencies”) of proposed transactions. This notification starts the clock on a waiting period, typically of 30 days, during which time the enforcement agencies evaluate the deal to determine if it is anticompetitive and thus needs to be challenged. 

Compliance with the program is governed by a set of rules, which the Federal Trade Commission itself calls “technical and complex.” Here are some of the basics. 

1. Both acquiring and acquired persons are required to file notifications if all of the following conditions are met:

1. As a result of the transaction, the acquiring person will hold an aggregate amount of voting securities, non-corporate interests (“NCI”), and/or assets of the acquired person valued in excess of $200 million (as adjusted) regardless of the sales or assets of the acquiring and 2 acquired persons; or
2. As a result of the transaction, the acquiring person will hold an aggregate amount of voting securities, NCI and/or assets of the acquired person valued in excess of $50 million (as adjusted) but at $200 million (as adjusted) or less; and
3. One person has sales or assets of at least $100 million (as adjusted); and
4. The other person has sales or assets of at least $10 million (as adjusted)

2. The parties may not close their deal until a waiting period has passed, or the government has granted early termination of the waiting period.

In most cases, the waiting period begins once the required forms are filed with the enforcement agencies by both the acquiring and acquired, though there are a few situational caveats. 

It’s also important to know that the waiting period doesn’t start until the form has been reviewed and deemed complete, all required information and documentary material are supplied, and payment of the filing fee is received.

Requests can be made for an early termination of the waiting period, but the following conditions must be met for the request to be granted:

1. At least one of the persons specifies it on the form
2. All persons have submitted compliant forms
3. Both antitrust agencies have completed their review and determined not to take any enforcement action during the waiting period

3. The review is to determine if a merger is likely to be harmful to an industry, the broader market, or consumers. 

After an initial review conducted by both agencies, if one or both determine a transaction warrants closer review, they come to an agreement on which agency will lead a deeper investigation of the proposed transaction; only one of the enforcement agencies conducts this investigation. 

4. There are two possible outcomes of the review.

1. No further action taken: If there is no evidence that there will be a substantial reduction of market competition, no further action will be recommended. Once the waiting period elapses, the parties are free to finalize their transaction.
2. Seeking injunctive relief: If the consensus of the review is that the transaction is likely to be anticompetitive, it may be recommended that the agency initiate injunction proceedings in U.S. district court to halt the acquisition.

Key changes in the updated HSR Rules

While not as broad as initially proposed in 2023, the changes to the HSR Rules are not insignificant. Here are the key changes to know for legal professionals representing companies looking to merge, acquire, or be acquired. 

1. Filers are expected to provide more information about their businesses. 

Already an extensive information request, the updated HSR Rules means parties must now provide‌ (and research‌) ‌even more detail about their businesses, including data on competitors, customers, and suppliers on a global basis – not just within the United States. 

Some of the expanded information requirements include: 

• a description of the categories of customers that purchase or use the overlapping product or services
• disclosure of products in the party's R&D pipeline that could compete with the other party's business and identification of specific geographic overlaps
• a description of products, services, or assets representing at least $10M in sales that are 
  
  • (i) sold to or purchased from the other party or
  • (ii) sold to or purchased from a business that competes with the other party or a business that uses such products as an input to compete with the other party.

2. Filers are required to submit more documents to complete the HSR pre-merger notification form. 

Previously not-mandatory documents – including draft agreements shared with board members and regularly-prepared plans and reports provided to the CEO – will now be required. This means ediscovery professionals will have more than ever to locate as they sort through data to complete the form. 

3. Expect increased preparation time, especially for transactions with overlaps or supply relationships.

Depending on the complexity of the transaction, the FTC estimates that these new requirements will add an average of 68-121 hours to the current preparation time‌ — ‌roughly 8-15 work days. For smaller teams faced with outsourcing this preparation work, that means an added cost, as well. 

4. In a welcome change, the option for early termination of the waiting period has been reinstated. 

The premerger waiting period gives the FTC and the DOJ 30 days to review proposed mergers upon the submission of the HSR premerger form. 

For transactions that clearly do not pose anti-competitive concerns, the option for early termination of the waiting period has been reinstated.

How the updated HSR Rules affect business

These updates represent the most significant changes to the HSR Form in 48 years. Businesses, especially those involved in mergers and acquisitions, should anticipate longer preparation times for premerger filings and consider early collaboration with antitrust counsel to develop a robust antitrust analysis and strategy.

It's important to note that while there was speculation that the new administration might delay or roll back these changes, the updated HSR rules have been endorsed by the new FTC Chair, Andrew Ferguson, who stated that "updates were long overdue" and "were the product of bipartisan consensus."

Given the increased complexity and requirements of the new HSR rules, businesses are advised to engage with legal counsel early in the transaction planning process to ensure compliance and to navigate the enhanced regulatory landscape effectively.

How the updated HSR rules affect ediscovery

The new HSR rules will have a significant impact on the complex ediscovery needed for merger and acquisition (M&A) reviews. Given the expanded document and data requirements, ediscovery teams will face greater demands in terms of document collection, processing, and analysis. Here’s how the changes will affect ediscovery:

1. Increased volume of data collection

The new HSR rules require companies to submit more internal documents related to deal rationale, synergies, and competition, including new document categories that were previously not required. These categories include draft agreements, strategy documents, board materials, and communications prepared for the CEO. 

A wider range of document requirements means, of course, a wider range of data sources. Ediscovery teams will be faced with having to search an expanded range of custodians and data sources, including informal communications, (e.g., Slack, Microsoft Teams, WhatsApp).

2. Longer review timelines

Depending on the complexity of the transaction, the FTC estimates that filing preparation will now take 68–121 additional hours per transaction. At an average of 8 hours a work day, that could mean about 8-15 extra days. 

This means ediscovery professionals will have less time to collect and process data to inform the filing. It will be imperative to find reliable, automated workflows that can maximize their time and speed up the work without sacrificing accuracy or adding cost burdens. 

3. More stringent document analysis

The new rules require not just more documents, but more thorough information, with a greater emphasis on competitive intelligence. This includes disclosure of competitor, customer, and supplier relationships, which means legal teams will be tasked with more in-depth reviews of business documents‌ — ‌with less time. The key to success for these teams will be leveraging advanced analytics and AI tools to identify sensitive information.

4. Higher compliance risks

Doing more with less time is always a risk. For ediscovery teams in the crosshairs of the expanded HSR filing, there will be a greater risk of missing critical documents or inadvertently submitting privileged materials. To ensure compliance, it is imperative that ediscovery teams implement strong privilege review workflows. 

Missing critical documents could delay deal approvals or lead to antitrust enforcement actions. The right generative AI solution, like Cecilia Q&A and Cecilia Auto Review, can be invaluable to these teams in preventing this.  

5. Increased reliance on AI and Technology-Assisted Review (TAR)

The demands on ediscovery teams are going to be more substantial than ever. Given the sheer volume of documents that will comprise the data sets for HSR filing preparation, firms will need AI-powered solutions like Cecilia to speed up document identification and review. Solutions that offer predictive coding and Technology-Assisted Review (TAR) will become essential for prioritizing relevant documents and reducing manual review burdens, especially for small but mighty teams. 

6. Higher costs for merging parties

Higher demands mean higher costs. Ediscovery firms will not only be tasked with processing more documents and reviewing more custodians, but the burden for accuracy in submissions will be greater than ever. All of this means increased cost. Legal teams should be prepared to adjust budgets and allocate more resources to document production.

7. Greater role for ediscovery vendors

While never simple, the expanded HSR rules increase the complexity of compliance. As such, companies will increasingly outsource ediscovery tasks to specialized legal technology providers. Legal technology firms will be in high demand, but those with strong Second Request experience can expect to feel the demand the strongest. 

Key takeaway: Greater demands on ediscovery teams

The new HSR rules place greater demands on ediscovery teams, requiring more extensive data collection, faster processing, and deeper analysis. Organizations should invest in AI-driven review platforms, automate workflows, and strengthen privilege review processes to manage the growing burden effectively.

Looking for a combination of efficient software and expert services to help manage updated demands? Schedule a call with DISCO’s team and learn how we can help.