Overview
On July 23, 2026, the Department of Justice's Antitrust Division announced a return to what it describes as targeted Second Request investigations and published a revised model timing agreement. The new optional process allows the Division to prioritize information and documents that it considers potentially determinative before requiring full compliance with a Second Request. After reviewing that priority production, the Division may close its investigation, narrow the Second Request, or continue to require full compliance.
The revised model offers two potentially significant benefits compared with the Division's 2022 model: an early opportunity to narrow or resolve an investigation and a reduction in the ordinary post-compliance period from 90 to 60 days (both of which are, of course, longer than the statutory 30-day back-end waiting period).1 These benefits are not automatic, however. The process can front-load substantial production costs, and the revised model replaces several fixed guideposts with terms negotiated separately in each investigation.
The result is a model that trades certainty for flexibility. Parties gain a faster potential path to closing and a genuine opportunity for early resolution. But the terms that determine whether either materializes – the scope of the priority production, the custodian and deposition limits, and what follows if the Division continues – are now set matter by matter rather than by the model, and the decisions that gate the expedited process are expressly reserved to the Division's sole discretion.
Expedited Consideration
The central change from the 2022 model is an optional "Expedited Consideration" procedure, under which the Division prioritizes information and documents relating to issues that it determines, in its sole discretion, to be potentially determinative, before requiring full Second Request compliance.
The parties produce responsive materials from designated priority custodians and respond to designated priority specifications. Before producing those materials, each party must describe its search and collection methodology, and the parties must make rolling productions. By the defined Priority Production Date, each party must also provide a privilege log and certify that its Priority Production is complete.
In exchange, the Division offers a Front Office meeting within 21 days after the Priority Production Date, on a date within that window set in the Division's sole discretion. If the investigation continues and the Division retains concerns, the parties may later receive the customary pre-litigation decision Front Office meeting as well. Within 14 days after the expedited Front Office meeting, the Division must notify the parties whether it intends to close the investigation, narrow or otherwise modify the Second Request, or continue its investigation without modifying the Second Request. The two tracks are mutually exclusive. Expedited Consideration terminates immediately if the parties certify compliance with the Second Requests.
One caveat: The model defines the Priority Production Date as the date the Division receives the last party's notice that its Priority Production is complete. The Division's 21- and 14-day commitments therefore run from a date set by the slower of the two parties, which means that the parties need to coordinate on timing.
Closing Timeline
The revised model materially improves the closing timeline. The post-compliance period shrinks from 90 days to 60 days, allowing parties to potentially close 30 days earlier than under the 2022 model. The Division, however, did increase the advance closing notice from 10 days to 14 days.
Early Data Productions
The revised model also makes the required early data productions matter-specific. It preserves the 45- and 30-day pre-compliance certification tripwires, but no longer specifies which data falls into which tier. The 2022 model attached the 45-day tripwire to profit-and-loss reports alone, placing transaction-level sales data, customer and product descriptors, and competitor win-loss data on the shorter 30-day tripwire. The revised model applies the same bracketed menu to both tiers – transaction-level sales data, win-loss or bid data, profit-and-loss data, and investigation-specific data requests – allowing the Division to seek placement of the most burdensome datasets in the longer category. The final entry, "investigation-specific data requests," has no stated boundary. Case-by-case negotiation may permit a more tailored production, but it also reduces predictability regarding both what must be produced before compliance and how far in advance it must be produced.
The revised model also requires the parties, within five days after producing their database descriptions, to make personnel available to explain the structure and content of the responsive databases and data sets.
Custodians and Deposition Limits
The revised model introduces significant uncertainty regarding custodian and deposition limits. The 2022 model set 20 document custodians per party, five additional custodians, and 12 CID depositions per party, along with a negotiated cap on entity-style (FRCP 30(b)(6)-like) deposition CIDs. The revised model treats each of those differently. The custodian figure is gone entirely: each party may now limit its search to the individuals on a negotiated Custodian List, with no model number to anchor it. The number of additional custodians and the number of CID depositions survive as "[X]" placeholders. The separate cap on entity-style deposition CIDs has no counterpart at all. Because all designees under a single such CID still count as one deposition, an uncapped number of those CIDs permits the Division to obtain testimony from many witnesses despite a fixed deposition budget.
The revised model also drops "per Party" from the deposition limit, which now reads simply as "up to [number (X)] Civil Investigative Demand (‘CID') depositions." Whether that figure applies per side or across both parties is unresolved on the face of the model and should be specified in any negotiated agreement.
The deletion of the custodian figure may formalize existing practice more than materially expand the Division's discretion, because negotiated custodian lists often exceeded 20 in any event. It nevertheless removes a useful starting point for negotiations over the scope of custodial discovery.
The revised model retains the Division's ability to add custodians before a complaint is filed, but imposes a new temporal limit: additional custodians must be identified no later than 20 days after the Compliance Date.
The revised model also removes the prior provision contemplating depositions by video conference or outside the Division's Washington offices.
Front Office Meeting
Parties participating in Expedited Consideration may receive two opportunities to meet with Front Office personnel: the meeting required during Expedited Consideration and, if the Division continues to have concerns, the customary late-stage Front Office meeting. The revised model does not, however, guarantee participation by the relevant Deputy Assistant Attorney General or Assistant Attorney General. Whether either official participates is left to the Division's sole discretion.
Post-Complaint Discovery
The revised model removes the 2022 model's requirement that the parties affirmatively seek at least 150 days of post-complaint fact and expert discovery. The 2022 revision introduced this obligation as the only substantive change it made to the 2020 public model. The parties remain bound, however, not to argue that the length of the Division's investigation or the discovery it obtained before filing should shorten the post-complaint period. The revised model frees parties to propose an expedited schedule; it does not restore their best argument for one.
Other Changes
The 2022 model contained a detailed mechanism under which the Division could demand materials cited in presentations, white papers, or economic analyses, require production within seven days, and potentially require searches of previously unsearched custodians or repositories. This mechanism is deleted, but the Division still has the ability to seek additional information.
The deficiency process also has been modified to become modestly more favorable to parties. Under the 2022 model, a party was required to remedy a deficiency identified more than 20 days after certification within 15 days. Under the revised model, the party may instead state in writing that it believes no deficiency exists.
The revised model also deletes the 2022 model's requirement that parties submitting white papers or economic or econometric studies simultaneously identify all supporting data and documents and produce all related work papers and underlying raw data. Together with the deletion of the reliance mechanism, this materially lowers the cost of advocacy during the investigation.
Analysis
The revised model is best viewed as offering a potentially valuable early off-ramp but not a guaranteed expedited result. Expedited Consideration may be attractive when the parties can identify a discrete issue that could resolve the investigation and can assemble the Priority Production quickly. It may be less attractive when the potential concerns are diffuse, the priority specifications would capture much of the full Second Request, or the parties are unlikely to receive meaningful narrowing if the investigation continues. The process may also be less attractive when the parties cannot reach the Priority Production Date quickly.
Because the expedited clock does not start until the Priority Production is complete, delay in reaching that point costs the parties rather than the Division. Broader lists of priority custodians and specifications mean a later Priority Production Date, and a later start to the Division's 21- and 14-day commitments. Parties should therefore treat the negotiation of these requirements as affecting not only burden but also timing.
Two sets of terms warrant careful attention:
For the Priority Production, parties should seek clarity regarding:
- the priority custodians and specifications, including any modified time periods;
- which data responsive to Specification 2 will be treated as priority data, a question the model leaves to good-faith negotiation after the Specification 1(f) response;
- a deadline for reaching the Priority Production Date, which the model does not supply;
- how Priority Production materials will be credited toward full compliance; and
- what narrowing will follow if the Division elects to continue its investigation.
For the remainder of the timing agreement, parties should also address:
- the number of custodians on the Custodian List and the number of additional custodians;
- whether the CID deposition limit applies per side or across both parties, and restoration of a cap on entity-style deposition CIDs;
- which datasets fall into the 45-day and 30-day pre-compliance tiers, and the scope of "investigation-specific data requests"; and
- whether depositions may proceed by video conference or at a location other than the Division's Washington offices.
Parties should also consider whether the expedited meeting will provide meaningful access to senior decision-makers, particularly because participation by the relevant AAG or DAAG is no longer assured.
In sum, the new model timing agreement has the potential to expedite review, but it is far from certain whether it will produce actual savings. The evaluation of whether the new process is advantageous for merging parties will depend on the details of the terms negotiated with the Division and, ultimately, on the facts of each case. Still, any measures that can reduce the cost and time of a Second Request review should be viewed as positives – even if there are no guarantees.
[1] The Division last publicly released a model timing agreement in 2020. It adopted a revised model in July 2022 but did not publish it. Professor Dale Collins of Georgetown Law obtained a copy through a FOIA request. This alert compares the July 2026 model against that 2022 version, the Division's last known model.
