CH 8 Overview of the Discovery Process

Major problems with the work product privilege include . a. determining what documents actually were prepared in anticipation of litigation b. the fact that the work product privilege is not an absolute privilege c. both a and b d. neither a nor b

c

The privilege that protects information prepared by an attorney in anticipation of litigation is called _____. a. the confessor-penitent privilege b. medical privilege c. the work product privilege d. common interest privilege

c

Which of the following is a discovery method? a. Judgment b. Temporary restraining order c. Deposition d. None of these choices.

c

The attorney-client privilege is a privilege that belongs to the ________.

client

A strategy that employs certain processes to retrieve, examine, analyze, and authenticate ESI is known as ________.

computer forensics, e-forensics, or cyber-forensics

The privilege against self-incrimination is specifically aimed at self-testimony in ________ cases.

criminal

An unethical discovery tactic is ________. a. destruction of a damaging document by an attorney b. falsifying evidence or helping someone else falsify evidence c. making a discovery request that is unwarranted or requesting much more information than is really necessary for the case d. All of these choices.

d

During the discovery stage in a lawsuit, it is important for the paralegal to understand that the term computer includes . a. desktop PCs b. laptops c. PDAs d. all of the above

d

If one of the parties in litigation refuses to cooperate with the discovery process, _____. a. nothing can be done b. the lawsuit continues without the items that might have been discovered c. imprisonment automatically results d. a motion can be filed asking the court to compel discovery

d

Limits on discovery include _____. a. the work product privilege b. the attorney-client privilege c. medical privilege d. All of these choices.

d

Limits on the discovery process include . a. the attorney-client privilege b. the work product privilege c. the Fifth Amendment privilege against self-incrimination d. all of the above

d

Purposes of discovery include ________. a. preventing one of the parties from winning the lawsuit by surprise or trickery b. determining the truth or the falseness of the alleged facts that form the basis of the suit c. examining the facts and weighing the advisability of proceeding with the case or settling early d. All of these choices.

d

Sanctions against parties who refuse to comply with production include a. dismissal of the action or granting of a default judgment b. granting of reasonable expenses, including attorney's fees, caused by the failure to cooperate c. a contempt of court ruling d. all of the above

d

The attorney-client privilege may be lost or waived by the client a. if the client does not intend the communication to be confidential b. if the client discloses the communication to others or if a third party not related to the client is present during an attorney-client discussion c. if in a multi-jurisdictional case, an associate attorney from a foreign nation owes loyalty to the nation rather than the client d. all of the above

d

The legal process by which the parties to a case search for facts relevant to the case is known as _____. a. e-evidence b. privilege c. protection d. discovery

d

The act of making known that which was unknown or not fully known is referred to as ________.

disclosure

The legal process by which the parties to a lawsuit search for facts relevant to a particular case is known as ________.

discovery

ESI includes data but not metadata.

false

ESI includes most computer-generated records but excludes e-mail files.

false

Formal discovery is required in every lawsuit.

false

Nothing can be done when a party refuses to cooperate in discovery.

false

Only the plaintiff can engage in discovery.

false

Rule 26 directs that the parties in a lawsuit must provide one another with copies of all discoverable information only after receiving a request or a court order.

false

Rule 26(f) mandates that the preconference "meet-and-confer" session be conducted no later than 14 days before a scheduling conference is held.

false

Rule 502 of the Federal Rules of Evidence is designed to protect only the unintentional waiver of the attorney-client privilege during document production.

false

Sanderson has sued her former employer, Tricor Manufacturing, alleging that she was terminated because she filed a complaint with the Department of Justice claiming that the company required that she participate in a price-fixing conspiracy with other manufacturing companies in the Southwest. Sanderson's former boss may destroy internal personnel records reflecting that Sanderson was an outstanding employee.

false

Sanderson has sued her former employer, Tricor Manufacturing, alleging that she was terminated because she filed a complaint with the Department of Justice claiming that the company required that she participate in a price-fixing conspiracy with other manufacturing companies in the Southwest. The decision to assert the attorney-client privilege belongs to Sanderson's attorney.

false

The courts in the United States provide the same level of security for ESI as afforded by the European Union.

false

The privilege against self-incrimination is found in the ________ Amendment to the U.S. Constitution.

fifth

The work product privilege protects letters, memos, documents, records, and other tangible items that have been produced in anticipation of ________.

litigation, lawsuit, or trial

The common interest privilege protects written notes, printed memos, and ________ exchanged among attorneys whose clients have a common interest.

oral statements

A meeting held between the judge and counsel for all parties prior to trial is known as a(n) ________.

pretrial conference or discovery

Although the confessor-penitent privilege belongs to the penitent, the law also protects a clergy member who has taken a religious oath not to reveal the content of counseling sessions.

true

As evidence, data is considered inactive if it is relatively up to date but is not used on a routine basis.

true

Clawback agreements were authorized by the new amendments to the Federal Rules of Civil Procedure because the complicated nature of ESI makes the inadvertent revelation of privileged information more likely.

true

Discovery is the legal process by which the parties to a lawsuit search for relevant facts.

true

Discovery time limits are listed in multiples of seven to ensure that time limits will end on a weekday.

true

If a party still refuses to comply after an order compelling cooperation is issued, the court can levy certain sanctions against the noncomplying party.

true

If, before the threat of litigation, a company's computer system had been programmed to automatically delete e-mail records after a certain time, the party cannot be sanctioned for not being able to produce those e-mails during discovery.

true

In Europe, the work product privilege may extend only until the end of the present case.

true

Information that is sought during discovery must be relevant to the subject matter of the case.

true

No later than 90 days before trial, parties must disclose to one another the identify of any person who may be called to testify as an expert witness.

true

One of the primary objectives of discovery is to prevent one of the parties from winning the lawsuit by surprise or trickery.

true

Sanctions for failure to comply with discovery requests are permitted against either or both the attorney and the client.

true

Sanderson has sued her former employer, Tricor Manufacturing, alleging that she was terminated because she filed a complaint with the Department of Justice claiming that the company required that she participate in a price-fixing conspiracy with other manufacturing companies in the Southwest. Any law firm involved in multi-jurisdictional (MJD) cases has an increased danger of inadvertently losing the protection granted by the attorney-client privilege.

true

Sanderson has sued her former employer, Tricor Manufacturing, alleging that she was terminated because she filed a complaint with the Department of Justice claiming that the company required that she participate in a price-fixing conspiracy with other manufacturing companies in the Southwest. If Tricor refuses to answer interrogatories, sanctions may be entered against both Tricor and its attorneys.

true

Sanderson has sued her former employer, Tricor Manufacturing, alleging that she was terminated because she filed a complaint with the Department of Justice claiming that the company required that she participate in a price-fixing conspiracy with other manufacturing companies in the Southwest. Interrogatories directed to Tricor are an inexpensive discovery tool.

true

Sanderson has sued her former employer, Tricor Manufacturing, alleging that she was terminated because she filed a complaint with the Department of Justice claiming that the company required that she participate in a price-fixing conspiracy with other manufacturing companies in the Southwest. The attorney-client privilege may be lost or waived by Sanderson if she did not intend that a communication to her attorney be confidential.

true

Some discovery methods are much more expensive than others.

true

There are five basic methods of discovery.

true

Video conferences can be used as a discovery technique to decrease travel expenses.

true

Mutual disclosure of certain information has been mandated in civil lawsuits in federal court by Federal Rule ________.

26

A discovery plan should involve _____. a. all evidence except electronic evidence b. electronic evidence but not traditional evidence c. traditional evidence and electronic evidence d. only one type of electronic evidence

c

The Fifth Amendment privilege against self-incrimination may be used _____. a. when a witness's response to a discovery request may expose him to criminal liability b. only in criminal cases c. only in civil cases d. when a witness believes that a response will result in greater damages in the lawsuit

a

The final decision to assert the attorney-client privilege remains with a. the client b. the attorney c. the court d. either a or b

a

The key to success in developing a discovery strategy is _____. a. to have a set routine followed in every case b. to create a new procedure for every case c. to have a different team of paralegals work on each case d. to identify expert witnesses first

a

Which of the following is not true of the common interest privilege? a. It preserves the attorney-client privilege. b. It can be invoked by lawyers representing plaintiffs or defendants. c. It may be allowed for a paralegal in some situations. d. It is unavailable to attorneys in a criminal case.

a

A relatively inexpensive type of discovery is the ________. a. oral deposition b. interrogatory c. request for production d. request for a physical or mental examination

b

Depositions are ________. a. written questions to a party that require written answers under oath b. the oral or written testimony of a party or witness given under oath outside a courtroom c. the admission of truth concerning certain facts or the genuineness of a document d. a request for the inspection or duplication of documents or other materials that are relevant to the subject matter of the litigation

b

Which of the following is not a discovery method? a. Interrogatories b. Motion to dismiss c. Requests for admissions d. Requests for mental examination

b