Deck 11: The Changing Face of Discovery and the Basics of E-Discovery

Question 1

The person claiming attorney-client privilege has the burden to establish its existence by showing:

A) communication was made in order to assist in obtaining or providing legal advice to the client.
B) communication was intended to be and was in fact kept confidential.
C) communication was between the client and attorney.
D) all the above

Answer 1

A

Question 2

Mandatory disclosure under the Federal Rules of Civil Procedure is designed to bring about:

A) more streamlined discovery.
B) earlier settlement discussions.
C) shorter discovery schedules.
D) all of the above

Answer 2

D

Question 3

Under the Federal Rules of Civil Procedure,discovery may not begin until:

A) the attorneys have held a meet and confer conference.
B) the judge has issued a scheduling order.
C) the complaint has been served and the defense attorney has entered his appearance.
D) the attorneys have met with the judge.

Answer 3

A

Question 4

Discovery should be accomplished:

A) with court oversight and intervention when necessary.
B) in a cooperative fashion without court intervention.
C) with court involvement at every step in the process.
D) in an adversarial manner using delay tactics to protect the client.

Question 5

The document that will make the case is known as the:

A) done deal
B) smoking gun
C) winning writing
D) best evidence

Question 6

What is the scope of discovery?

A) Only information that may be admitted into evidence is discoverable, so long as it is not privileged.
B) Everything is discoverable that is relevant or may lead to relevant evidence, so long as it is not privileged.
C) Everything is discoverable that is relevant to the issues in the case.
D) Everything is discoverable that is relevant, so long as it is not privileged.

Question 7

To protect and retrieve inadvertently disclosed confidential or privileged materials:

A) the attorney should include a claw-back provision in the discovery plan.
B) the attorney must file a motion for a protective order.
C) the client whose materials are disclosed must sue the attorney.
D) the materials cannot be protected or retrieved once they've been disclose

Question 8

Federal Rules governing discovery have been modified to:

A) provide a framework for requesting and satisfying requests for documents in electronic format.
B) provide a time limit for conducting discovery.
C) provide a framework for limiting the burdensome nature of discovery in the electronic age.
D) all the above

Question 9

The goals of the meet and confer include:

A) developing a litigation hold plan.
B) developing a discovery plan to present to the judge.
C) discussing the best time to have a recess during the trial.
D) discussing the best way to extend deadlines under the Rules.

Question 10

The purpose of discovery is:

A) facilitating settlement.
B) preparing for trial.
C) case evaluation.
D) all the above

Question 11

E-discovery is ________

A) discovery of documents created, disseminated, and stored via electronic means.
B) the disclosure and evaluation of any of the expert witnesses to be used in a case.
C) the conduct of all of the depositions in a case.
D) review all of the documents produced in paper form.

Question 12

A__________ is a list of documents claimed by the submitting party to contain material subject to privilege or work product doctrine exclusion.

A) confidentiality log
B) privilege & work product log
C) privilege log
D) work product log

Question 13

Discovery is a step in the litigation process where parties

A) prove their case.
B) discredit their opponent's case.
C) conceal information.
D) exchange information.

Question 14

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

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

Question 15

The e-discovery amendments to the Federal Rules of Civil Procedure were enacted to address:

A) producing electronic materials.
B) preserving electronic materials.
C) destroying electronic materials.
D) all of the above

Question 16

Rules of ________ provide the framework for conducting litigation.

A) ethics
B) evidence
C) civil procedure
D) engagement

Question 17

__________are formal written discovery requests.

A) Interrogatories
B) Subpoenas
C) Depositions
D) all the above

Question 18

In seeking to obtain court-ordered compliance with discovery requests,the legal team:

A) must show a good faith attempt to obtain the information.
B) must show the opposing party deliberately obstructed discovery.
C) need not show what other efforts were made to obtain the information.
D) must show that the information sought would be admissible as evidence at trial.

Question 19

________ is meant to reduce the time and cost of formal discovery.

A) Meet and confer
B) Litigation hold
C) Claw-back
D) Mandatory disclosure

Question 20

With vast numbers of documents produced electronically,it is not possible to check every document before handing them over to opposing counsel.This can result in:

A) disclosure of client proprietary information or trade secrets.
B) disclosure of confidential material.
C) disclosure of work product material.
D) all the above

Question 21

The use of computers for email and document storage by businesses has decreased the number of potential documents that may have to be reviewed in litigation.

Question 22

Documents that were formerly printed and placed in file folders in filing cabinets are now created and saved in electronic files and folder.

Question 23

_________ depositions are used in many cases to preserve the testimony of a witness who might otherwise be unable to attend the trial.

A) expert witness
B) fact
C) chronological
D) videotaped

Question 24

The Federal Rules of Civil Procedure were amended in 2006 to address concerns with electronically stored information (ESI)in discovery.

Question 25

Discovery may not begin until the lawyers have conferred and developed a proposed _______ plan,as required in Fed.R.Civ.P 26.

A) settlement
B) ESI
C) privilege
D) discovery

Question 26

For discovery purposes,an item of information must meet the requirements of the Rules of Evidence for admission at trial.

Question 27

Discovery cannot reduce the potential for surprises in evidence presented at trial.

Question 28

Discovery is intended to help each litigant understand and evaluate the opponent's case,as well as the litigant's own.

Question 29

Information about a document,such as who created it; the date it was created,modified,or accessed; and other information related to its existence and location is referred to as:

A) native
B) metadata
C) VoIP
D) answers

Question 30

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

Question 31

Advances in technology have dramatically increased the availability and accessibility of information in discovery.

Question 32

Failure to properly present a responsive 30(b)(6)witness who can answer questions about the company's electronic filing systems can result in:

A) sanctions
B) interrogatories
C) fact witnesses
D) answers

Question 33

The judge is present at the initial meet and confer session.

Question 34

Under the Federal Rules of Civil Procedure,the discovery process starts with a meeting with the judge.

Question 35

Under the Federal Rules of Civil Procedure,information is discoverable if it is not privileged and if it is relevant or may lead to relevant evidence.

Question 36

The pleadings phase is the step in the litigation process where plaintiff and defendant exchange information relevant to their dispute.

Question 37

Demand for access and delivery of electronic data require a technological skill set that many lawyers to not possess.

Question 38

The _______ metadata is used to track or locate the file containing the data,such as the file name,size,and location

A) content
B) system
C) fact
D) sharing

Question 39

The judge will usually give great deference to the recommendation of the attorneys in scheduling deadline for discovery.

Question 40

The goal of the meet and confer conference is to discuss the nature of the claims and likelihood of settlement,to arrange for mandatory disclosure under Rule 26(a),and to develop a discovery plan if one is necessary.

Question 41

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 42

Under the Federal Rules of Civil Procedure,the discovery process starts with an __________

Question 43

Information about a document,such as who created it; the date it was created,modified,or accessed; and other information related to its existence and location is referred to as metadata.

Question 44

To claim a document as privileged requires the submission of a privilege log identifying the item and the reason for the privilege.

Question 45

Under the Federal Rules of Civil Procedure,information is discoverable if it is not ________ and if it is relevant or may lead to relevant evidence.

Question 46

A person qualified by education,training or experience to render an opinion based on a set of facts that are outside the scope of knowledge of the factfinder is called an __________.

Question 47

Failure to properly present a responsive 30(b)(6)witness who can answer questions about the company's electronic filing systems can result in sanctions.

Question 48

_________ allow parties to directly question parties and witnesses,under oath,without the limitation of carefully prepared,written answers to interrogatories.

Question 49

______ refers to information about a document,such as who created it; the date it was created,modified,or accessed; and other information related to its existence and location is referred to as metadata.

Question 50

All depositions are videotaped.

Question 51

In 2006,electronic discovery rules were finally adopted by the ______________.

Question 52

________________ is a step in the litigation process where the plaintiff and defendant exchange information.

Question 53

__________ request written answers to questions.

Question 54

The content metadata is used to track or locate the file containing the data,such as the file name,size,and location

Question 55

To protect and retrieve inadvertently disclosed confidential or privileged materials the attorney should include a claw-back provision in the discovery plan.

Question 56

Before filing the lawsuit in the toxic tort case,Jack's team based its claims on an extraordinarily high number of leukemia cases occurring within the proximity of the chemical plant,testing of the soil surrounding the plant,as well as a medical study showing that the chemicals produced at the plant are potentially cancer-causing.However,Jack's team had not yet completed their research on the medical evidence that proves the connection.Why is it important for them to complete their investigation before filing suit? Explain your reasoning as it relates to the discovery requirements.

Question 57

_________ is now the dominant form of written communication.

Question 58

ESI stands for ___________________.

Question 59

If properly conducted,discovery can eliminate the potential for _________ in evidence presented at trial.

Question 60

A list of documents claimed by the submitting party to contain material subject to privilege or work product exclusion is called ____________.

Question 61

Matching

Question 62

What is the duty of the litigation team regarding the disclosure of electronically stored information? What are the limitations on this duty?

Question 63

What is metadata?

Question 64

The toxic tort case being handled by Jack Parsons' firm has finally begun.When settlement negotiations broke down,the complaint was filed in federal district court.Jack is anticipating vast quantities of electronic documents to be produced by both sides.On the plaintiff side,there are volumes of medical records documenting the illnesses,along with toxicology studies about the chemicals at issue.The defendant chemical company is a Fortune 500 firm,and is expected to have thousands of electronic documents that could be potentially related to the litigation.A "meet-and-confer" conference has been scheduled.What is supposed to occur at the conference? How should Jack prepare for this meeting?

Question 65

During the months leading up to the lawsuit,there was a significant amount of communication between the defendant,Greenway Chemicals,and the law firm they retained to represent them.Much of this communication was in the form of e-mails,which were archived in the same file server that contained much of the information sought by the plaintiffs.Greenway is concerned that in the process of e-discovery,some of this communication may be disclosed to the other side.What safeguards are available to protect them from this possibility?