Deck 12: Evolving Issues in E-Discovery

Question 1

Where a client has a retention and destruction policy and the duty to preserve evidence has arisen,the attorney:

A) must immediately review all documents in the client's possession.
B) must instruct the client to cease destruction of documents.
C) must verify the client has followed the instruction to cease destruction.
D) both b and c

Answer 1

D

Question 2

Costs associated with e-discovery may arise from:

A) files stored on media for which the original hardware to read and write is no longer available.
B) files stored on media for which the original software to read and write is no longer available.
C) files stored on media that has deteriorated.
D) all the above.

Answer 2

D

Question 3

A major issue in e-discovery is the ________ of discovery.

A) time
B) unreliability
C) cost
D) labor

Answer 3

C

Question 4

When considering their client's duty to preserve evidence,it is usually better for the legal team to

A) err on the side of caution, since the law is unsettled.
B) apply the clear rules and statutes adopted in every state.
C) advise the client to destroy everything, since those responsible are not likely to be discovered.
D) allow the client to do whatever is most cost-effective in their business.

Question 5

Where documents have been intentionally destroyed without good faith,the cost to retrieve and restore archived,corrupted,or deleted files is born by:

A) the party who destroyed the documents.
B) the party producing the documents.
C) the attorney who failed to protect the documents from destruction.
D) the party requesting the documents.

Question 6

Spoliation includes

A) only the destruction of documents in electronic form.
B) destruction of any type of evidence.
C) only evidence that has actually been identified in discovery.
D) only evidence that may conclusively prove the case.

Question 7

Under new case law,the duty to preserve evidence exists:

A) only after an attorney has entered an appearance.
B) at all times.
C) once it is reasonable and foreseeable that litigation may arise.
D) only after a lawsuit is filed.

Question 8

More businesses are adopting retention policies for electronic data,which govern how long this information is retained.

Question 9

Destruction of records when the party knows of litigation related to those documents is called:

A) spoliation
B) litigation destruction
C) client survival
D) document destruction

Question 10

Every record retention policy should include

A) a direction to destroy each document as soon as it is no longer needed in the course of business.
B) a procedure for destroying any document related to a matter that may result in litigation.
C) a process for making hard copies of every document produced by the business.
D) rules determining which matters may result in litigation and ensuring that related records are kept.

Question 11

Regarding the law governing e-discovery,the legal team should:

A) continuously check for any changes to the law governing e-discovery.
B) devote a minimum amount of time on what is a consistent area of law.
C) change discovery practices when a judge issues an adverse ruling against a client.
D) assume that the rules governing discovery are similar to those for paper discovery

Question 12

A_________ is appropriate when a company or individual determines that an unresolved dispute may result in litigation,and as a result,electronically created documents should not be destroyed.

A) litigation hold
B) document destruction
C) litigation destruction
D) document hold

Question 13

Where spoliation of evidence has occurred,the judge

A) will dismiss the case, since there is no point in continuing with the litigation.
B) may order a variety of remedies, depending on the circumstances and the jurisdiction.
C) will apply one the remedies established by the federal rules, which have been adopted nationwide.
D) must bar the evidence from being used at trial.

Question 14

According to recent case law,sanctions for spoliation of evidence may depend on

A) whether the evidence was in electronic or paper form.
B) the steps taken to preserve and collect information in discovery.
C) whether the evidence was in the form of documents, or physical evidence.
D) whether documents were destroyed by deleting or shredding.

Question 15

The opinions written in the Zubulake case raise many of the issues surrounding e discovery,mainly,the _______ and the need for early awareness in the case of potential e-discovery issues.

A) duty to preserve evidence, duty to cut costs, duty to reveal,
B) duty to preserve evidence, duty to produce, cost of production,
C) duty to preserve evidence, duty to collect relevant data, cost of email sorting,
D) duty to preserve evidence, duty to negotiate, costs of the case,

Question 16

A litigation hold letter is more likely to be effective,and shows a good-faith effort,when it

A) does not specify the author.
B) states that no acknowledgement of receipt is necessary.
C) specifies exactly what actions must be taken.
D) describes the scope of the materials in broad, general terms.

Question 17

In the case of spoliation of evidence,an adverse instruction tells the jury that they may

A) infer that the destroyed evidence may have been favorable to the other side.
B) assume that the destroyed evidence was favorable to the other side.
C) decide in favor of the other party if it determined that evidence was deliberately destroyed.
D) decide in favor of the other party if it is shown that the destroyed evidence was favorable to them.

Question 18

The opinions in Zubulake

A) have been replaced by the 2006 amendments to the Federal Rules of Civil Procedure, and are no longer relevant.
B) were written before the 2006 amendments to the Federal Rules of Civil Procedure, but are still looked to for guidance.
C) are relied on for their interpretation of the 2006 amendments to the Federal Rules of Civil Procedure.
D) were written after the 2006 amendments to the Federal Rules of Civil Procedure, and overrule them.

Question 19

Good faith destruction of documents is established by:

A) establishing a standard operating procedure for retention and destruction of documents.
B) establishing a standard operating procedure for retention of documents.
C) establishing a standard operating procedure for retention and destruction of documents that includes a litigation hold policy.
D) saving a separate electronic back-up version of every document destroyed.

Question 20

In e-discovery:

A) all electronic documents are discoverable.
B) only privileged electronic documents are discoverable.
C) all electronic documents are discoverable unless protected by privilege.
D) no electronic documents are discoverable.

Question 21

A litigation hold is a requirement that once a case is filed or where the party knows or has reason to know that litigation may be brought,a duty exists to preserve evidence.

Question 22

The term ADR refers to the destruction of evidence pertaining to litigation.

Question 23

A litigation hold serves as a red flag to the company and its employees not to destroy or alter any documents related to the dispute,and to save them in their present forms.

Question 24

With electronic documents space is a huge concern,and documents should only be kept temporarily

Question 25

The common law duty to preserve relevant evidence is not well recognized.

Question 26

Spoliation may include deleting electronic files or information.

Question 27

Sanctions may include monetary penalties,or an instruction to the jury that they may infer that the destroyed documents would have been favorable to the opposing party.

Question 28

A retention policy must balance the economics of storage with the need to preserve documents for
potential litigation.

Question 29

With paper documents and records,________ was a concern because of the physical space required and the concern over fire or water damage.

Question 30

A _____________ must balance the economics of storage with the need to preserve documents for potential litigation.

Question 31

Judge Shira Scheindlin in the widely-reported Zubulake case addressed the issues associated with electronically stored information (ESI)in discovery.

Question 32

E-discovery refers to the discovery of documents created,disseminated,and stored via electronic means.

Question 33

More businesses are adopting ____________ for electronic data,which govern how long this
information is retained.

Question 34

The duty to preserve evidence dictates that once litigation is received,evidence must be preserved.

Question 35

The common law and amendments to the Federal Rules of Civil Procedure suggest that a client does not need to preserve documents related to a dispute until litigation has been formally filed.

Question 36

A _____________ is a requirement that once a case is filed or pending,a duty exists to preserve evidence.

Question 37

Spoilation of evidence is punishable by court imposed sanctions against the party who destroyed the evidence.

Question 38

The duty to preserve evidence dictates that once litigation is received,evidence must be ________.

Question 39

______ can involve almost any method of destroying evidence.

Question 40

Spoilation can involve almost any method of destroying evidence.

Question 41

What is spoilation? How may an attorney advise a client to prevent claims of spoilation?

Question 42

Explain the purpose of a litigation hold,and the duty to preserve evidence.

Question 43

______________ is the destruction of evidence pertaining to litigation.

Question 44

One of Kate Sandberg's clients,Electro Tech,has grown significantly in the last 10 years from a makeshift laboratory in an engineer's basement,to an electronics manufacturer employing over 200 people.Every week,the operations of the company produce hundreds of electronic documents including contracts,internal memoranda,financial records,and research data,in addition to the hundreds of e-mails written by employees.All of these documents are archived in a central file server at the Electro Tech headquarters.Maintaining these archives is costly,and Electro Tech is increasingly concerned about the possibility of litigation.Electro Tech has asked Kate to help them develop a retention policy.What should be the basic elements of this retention policy?

Question 45

Any item of information is ___________ for purposes of discovery where it has a relationship to evidence about the litigation and is likely to lead to admissible evidence.

Question 46

____________ is a balancing of the costs against the benefits of preserving and obtaining evidence.

Question 47

A _________ serves as a red flag to the company and its employees not to destroy or alter any documents related to the dispute,and to save them in their present forms.

Question 48

In the case against Greenway Chemicals,discovery is nearly concluded.Jack's paralegal,Jim Cassidy,discovered an interesting e-mail from the company's president to the Chief Information Officer that refers to a report from the company's research department suggesting a possible link between the chemical at issue and leukemia.The e-mail is dated 5 days after Jack Parsons sent his settlement demand to Greenway.In the body of the e-mail,the president instructed the Chief Information Officer (CIO)to "bury the report." The referenced report has never turned up in discovery.In his deposition,the CIO admitted that he deleted and destroyed all copies of the report,but that he never read its contents.What potential sanctions can Jack ask the judge to impose on Greenway?

Question 49

___________ may include monetary penalties,or an instruction to the jury that they may infer that the destroyed documents would have been favorable to the opposing party.

Question 50

Matching

Question 51

_____________ refers to the discovery of documents created,disseminated,and stored via electronic means.

Question 52

Electro Tech has advised Kate that they just received a letter from attorneys representing a competitor,Synchromotive,Inc.,alleging that a device manufactured by Electro Tech,the Accelerex,infringes on a patent held by Synchromotive for a similar device,called a Speedex.They will sue if Electro Tech does not immediately stop producing the Accelerex.What action should Kate take at this time regarding Electro Tech's electronically stored information?