Exam 2 - Civil Procedure
What types of topics would have to be covered in any set of interrogatories designed to pave the way for a document-production request in relation to ESI?
(1) the actual nature of the party's computer system (2) the configuration of any networks (3) info on any upgrades, equipment changes, and reformatting. (4) policies that mandate the preservation or elimination of certain records (5) info concerning any backup processes in use to save data (6) description of the party's e-mail system (7) names & responsibilities of all IT experts, their assistants, and interns involved in maintaining or servicing the party's computer system.
Confessor-penitent privilege (clerical privilege)
(Limit on Discovery.) A privilege designed to protect the confidentiality of any communication between an individual and his or her confessor when the relationship involves the spiritual support of the penitent. The privilege belongs to the penitent rather than the confessor. However, the law also protects the confessor who has taken a religious oath not to reveal the content of such counseling sessions.
Attorney-Client Privilege
(Limit on Discovery.) A privilege that belongs to the client in an attorney-client relationship that requires the attorney to treat all information revealed to him or her, or to anyone employed by the attorney, as confidential. Because the privilege belongs to the client rather than to the attorney, only the client can give permission for the revelation of such confidential matters.
Work Product Privilege (The Litigation Privilege)
(Limit on Discovery.) A privilege that protects any information prepared by an attorney in a lawsuit if that information is prepared by the attorney or anyone employed by the attorney in anticipation of litigation or to present at trial.
Medical Privilege (Physician-Patient Privilege)
(Limit on Discovery.) The medical privilege exists between a patient and a medical practitioner and is designed to protect the patient's confidential communication with the practitioner. The privilege covers communications made between the patient and physicians, psychiatrists, podiatrists, psychologists, and dentists.
Common Interest Privilege
(Limit on Discovery.) The rule that protects any communication that takes place between attorneys for different clients when those clients share a common interest.
What types of evidence can be legally obtained during the Discovery process?
-Anything a party saw, heard, etc -Hearsay -Details on how a business functions.
What responsibilities does a paralegal have in preparing for a deposition?
-Arrange for the preparation and service of a notice of **intent to take an oral deposition** -Obtain subpoenas for several deponents. Finally, the paralegal may be called upon to help prepare for the de- position. The exact nature of this preparation will depend upon whether the attorney is taking or defending the deposition.
What are the rules regarding interrogatories and ESI?
-Define all terms. -Inquire actual nature of computer system. (Define computer as a term that encompasses ipads, ipods, tablets, etc.) This could even extend to printed copies of computer data in the event of computer malfunction. -Identify if company has BYOD or COPE policy in place. (Bring your own device or Company Device.) -Identify any network changes
Disadvantages of Electronic Deposition
-Difficult to evaluate the appearance and the demeanor of the deponent -Vulnerable to electronic interruptions and unauthorized listeners who might hack into the transmission of the session -Requires extra preparation by both the attorney and the paralegal
Disadvantages of Traditional Oral Deposition
-Expensive -Time consuming -Allows each attorney to gain insight into the other attorney's case and strategy -Allows deponents to rehearse their testimony before the trial
Advantages of Traditional Oral Deposition
-Gives the attorney taking the deposition the opportunity to see how a witness or the opposing party will perform on the witness stand (Pot boiling over) -Can be used to preserve the testimony of a witness who might be unavailable to testify at trial
What are the specific types of Interrogatories that can be asked?
-Identify people -Establish facts -Identify documents -Identify contentions
What objections can be made by a party to an interrogatory?
-It's over broad, vague, irrelevant or unintelligible. -Answering the question may breach attorney-client privilege or the work product privilege. - If the question is objectionable, you must answer the parts to the question that you CAN answer outside of the objection.
What are some disadvantages of using Interrogatories?
-Limited to the parties to a lawsuit -Do not eliminate the need to take a deposition -Lack spontaneity -Do not allow for immediate follow-up questions -May motivate opposing attorney to begin preparation of her case earlier than planned -Can alert the opposition to the direction of opponent's case
What options are available to the requesting party should the responding party refuse to answer an interrogatory?
-Motion to compel. (allowed under rule 37.)
What are the primary purposes of filing interrogatories to the opposing party?
-Obtain information about facts in a case -Supplement information disclosed under Rule 26 -Determine the party's contentions -Identify specific individuals or documents that support contentions -Impeach witnesses during the trial -Facilitate settlement of the case
Limits Expert Testimony
-Party must exchange information about Expert Witnesses who will appear 90 days before trial. - if the expert testimony is to be used simply to challenge evidence that was introduced by another party related to the same topic, that time period is shortened to 30 days after the original revelation of that evidence.
What are some main objectives of Discovery?
-Prevent one of the parties from winning the lawsuit by surprise or trickery -Determine the truth or falsity of the alleged facts that form the basis of the lawsuit -Examine the facts and weigh the advisability of proceeding with the case or settling early. -Preserve testimony -Impeach credibility of witness
Advantages of Electronic Deposition
-Saves time and money -Can be supplemented by an e-transcript that is synchronized with video imagery -Can be augmented by a chat room, permitting those who are watching the deposition to "talk" in private to the attorney asking the questions -Messages can be saved for later access
What are some advantages of using Interrogatories?
-Simple, inexpensive, and efficient -More thorough than depositions because interrogatories must be answered and verified by the party -Responding party has duty to provide the identity of the person who has custody of a document or ESI if the party does not have it -Enhance other discovery techniques
What are some factors that should be considered in choosing Discovery methods?
-Time and expenses.
What are some limits on discovery?
1. Attorney-Client Privilege 2. Work Product Privilege 3. Common Interest Privilege 4. Confessor-penitent privilege (clerical privilege) 5. Medical Privilege
What are the five major methods of Discovery?
1. Depositions. 2. Interrogatories. 3. Request for the production of documents, ESI, and tangible things, or entry upon land for inspection and other purposes. 4. Requests for physical and mental examinations. 5. Requests for admissions.
When is it necessary for opposing party to answer an interrogatory?
1. If a party learns that the response given was in some material respect incomplete or incorrect and the additional or corrective information has not otherwise been made known; or 2. By order of the court or by agreement of the parties.
What five unethical methods are involved in the Discovery process?
1. It's unethical to stop a party from obtaining evidence. 2. To destroy evidence. 3. Falsify evidence. 4. Make an unwarranted discovery request. 5. To request more information than is necessary for the case.
What are the three types of deposition summaries?
1. the page-line deposition summary 2. the topical deposition summary 3. the chronological deposition summary
Deposition Upon Written Questions
A deposition upon written questions is a discovery tool that requires the deponent to answer written questions orally in the presence of a court reporter.
Litigation Response Team
A group of highly trained individuals who are charged with the job of learning all there is to know about the client's ESI system, including all backup, retrieval, formatting, deletion
What is a notice of intent to take an oral deposition?
A notice spelling out the date, time, and place of a planned deposition. The notice will also indicate the name and address of the intended deponent as well as the identity of the attorney who will ask the questions during the deposition.
Chain of Custody
A precise record of who received, handled, evaluated, and safeguarded the evidence in a legal proceeding.
The Fifth Amendment Privilege against self-incrimination
A privilege granted by the Fifth Amendment to the Constitution that prevents a criminal defendant from being forced to testify against himself or herself, but which can, under certain circumstances, be used in a civil case.
Request for Admission
A request made by a party to another party in that lawsuit to admit to the truthfulness of a fact or the genuineness of a piece of evidence.
Request for a physical or mental examination
A request made by one party to another party in that lawsuit to undergo a physical or mental examination provided that the examination involves a condition that is at issue in the pending action.
Topical Deposition Summary
A written abridgment of a deposition that records the information produced by the deposition according to certain designated topic
Chronological Deposition Summary
A written abridgment of a deposition that records the information produced by the deposition based on a specified temporal sequence. IF CHRONOLOGY OF EVENTS IS OF CRITICAL IMPORTANCE TO CASE.
Page-Line Deposition Summary
A written record of a Deposition in the order in which it was actually presented during the deposition process.
Quick Peek Agreement
An agreement that allows the data retriever to give evidence to the data requester for a preliminary assessment while still preserving all privileges associated with that evidence.
Confidentiality Agreements
An agreement that is designed to protect confidential information, trade secrets, and other secret data from being revealed during the discovery process in a lawsuit.
Clawback Agreement
An agreement, sometimes called a nonwaiver agreement that allows the parties to agree that privileges can be asserted after evidence has been sent to the other party if the data retriever discovers that it has accidentally included privileged information in the evidence sent to the data requester.
Zubulake proportionality test
An analytical process that provides the court with seven factors for determining who should pay how much in a search for ESI.
Litigation Hold
An order issued by an attorney to a client telling that client's employees and associates to stop the routine handling of all ESI, especially as that routine involves the deletion of ESI.
Protective Orders
An order that is issued by the court in a lawsuit that protects a party in the suit from revealing information, documents, data, or other types of evidence to another party who has previously requested the production of that evidence. Protective orders are permitted under Rule 26(c) of the Federal Rules of Civil Procedure.
Deposition
An out-of-court question and answer session under oath, conducted in advance of a lawsuit as a part of the discovery process.
Metadata
Computer data about data. Including such things as a tracking record that shows how the data was compiled, who compiled it, what it was compiled for, etc.
Extant data
Computer-generated records within a computer system that are hidden in the system, generally because they have been deleted.
Active Data
Computer-generated records within a computer system that are in current use.
Inactive data
Computer-generated records within a computer system that are relatively up-to-date but are not used on a routine basis.
Backup data
Computer-generated records within a computer system that are stored as a precautionary measure.
Predictive Coding
Data retrieval technique accepted by most courts. A strategy by which a computer program uses a digital cataloging process to examine a sampling of documents in order to adjust its search algorithm so that the computer will know what to look for as it determines which documents are relevant and which are not.
Ephemeral data
Data that was created to self- destruct after a short period of time.
Legacy data
Data that was initially recorded on what is now an outmoded media format such as a floppy disk.
Paper data
ESI that has been reduced to a hard copy for filing purposes as a safeguard against the loss of that data caused by the breakdown of the computer system.
Residual data
Fragments of data that may be left over on a computer's hard drive.
E-Forensics
Or cyber-forensics, is a strategy that employs certain processes to retrieve, examine, analyze, and authenticate ESI. The process uses the chain of custody strategy to make certain that computer use and computer records are not altered, destroyed, or hidden.
Deponent
Party or non-party witness who is questioned during a deposition.
Rule 26 of the Federal Rules of Civil Procedure
Requires the parties to disclose certain information to the other party without the necessity of formal discovery requests. Names, addresses, and telephone numbers of relevant persons; a description and location of documents and ESI; a list of damages; and a copy of any insurance policies covering the claim.
When is it appropriate to produce business records as a response to an interrogatory?
Rule 33 states that IF the most effective way to answer is through business records, and as long as burden in obtaining such information is not increased for either party, then business records can be used as a viable response.
Scope of Discovery
The amount of evidence that can be sought during the discovery process.
Who does the attorney-client privilege belong to?
The client, not the attorney.
What is Discovery?
The procedure that the parties to a lawsuit follow in order to uncover the facts that are involved in the suit. The system involves an exchange of information among the parties using certain established discovery techniques including
What form should an interrogatory take?
They require a title, introductory paragraph, definitions, instructions, specific interrogatories, a signature, and a certificate of service for interrogatories.
What responsibilities does a paralegal have during an oral deposition?
To take notes and evaluate the effectiveness of the deponent. -Convincing -No contradictions -Testimony incomplete or vague? -Do they refer to notes frequently? -Do they frequently "not recall" certain facts?
What is the purpose of quick peek and clawback agreements?
Two types of agreements minimize the risk of the accidental disclosure of privileged information.
How long do you have to respond to an Interrogatory?
Typically 30 days. Time starts when the paper copy of the interrogatory has been served.
Federal Rules of Evidence (Rule 502)
Under Rule 502(b), the unintentional release of evidence protected by either the attorney- client privilege or the work product privilege will not be considered an overall waiver, provided that the initial disclosure was genuinely accidental, and resulted despite the fact that the holder of the privilege "took reasonable steps" to protect the evidence.
Interrogatories
Written questions requiring written answers under oath and directed to a party, in which another party seeks information related to the litigation.
What consequences can result from a refusal to cooperate with an order compelling discovery?
the other party must move to force compliance. Under Rule 37 of the Federal Rules of Civil Procedure, the party seeking cooperation must file a motion with the court asking the judge to compel discovery.
Why is voluntary cooperation necessary for the discovery process?
under the principle of reciprocity, each side knows that any attempt to disrupt the discovery process may result in a similar attempt by the other side. Second, each side knows that the court disapproves of any attempt to interfere with discovery. Finally, the Federal Rules of Civil Procedure provide severe sanctions for those parties who refuse to obey discovery orders made by the court.
What is the paralegal's role in arranging for a transcript?
write a deposition summary. There are three types of DEPOSITION SUMMARIES the page-line deposition summary, the topical deposition summary, and the chronological deposition summary.
