E-Discovery FULLY ANSWERED QUESTIONS
WITH ANSWER GRADE A
What is a Clawback agreement? - (correct answer)It outlines procedures to protect
against waiver of privilege or work product protection due to inadvertent production of
documents or data.
Electronic Discovery - (correct answer)The process of identifying, preserving, collecting,
preparing, reviewing, and producing electronically stored information ("ESI") in the
context of the legal process. See Discovery.
ESI - (correct answer)Information that is stored electronically, regardless of the media or
whether it is in the original format in which it was created, as opposed to stored in hard
copy
What is Form of Production? - (correct answer)The specifications for the exchange of
documents and data between parties during a legal dispute. Refers both to file format
and the media.
Metadata - (correct answer)Data typically stored electronically that describes
characteristics of ESI. Can be supplied by applications, users or the file system.
Metadata can describe how, when, and by whom ESI was collected, created, accessed,
modified, and how it is formatted.
Define Spoliation - (correct answer)It is the destruction of records or properties, such as
metadata, that may be relevant to litigation, government investigation, or audit. Courts
differ in their interpretation of the level of intent required before sanctions may be
warranted.
Is a party always obligated to produce ESI? - (correct answer)A party is not obligated to
produce ESI that is "reasonably inaccessible" because of "undue burden or cost."" This
generally refers to ESI stored on backup tapes that are only created to restore a
computer system in case of a disaster or on outdated "legacy" systems that are no
longer used.
,What is the best way to request documentation? - (correct answer)As a general rule,
one should request a full electronic version of documents and emails rather than paper
What is the Safe Harbor provision regarding sanctions for the loss of ESI ? - (correct
answer)Absent exceptional circumstances, a party will not be subject to sanctions for
the loss of ESI as a result of "routine, good faith operation of an electronic info system."
What is a 26(f) meeting? - (correct answer)Parties are required to meet early and confer
about ESI production and discovery. In this conference the parties discuss the form in
which ESI will be produced, what information is in electronic form and where it is
located, anticipated schedule for production, preservation responsibilities, etc.
Are there any limitations to the obligation to provide discovery of ESI? - (correct
answer)A party need not provide discovery of ESI from sources that the party identifies
as not reasonably accessible because of undue burden or cost. The court may
nonetheless order discovery from such sources if the requesting party shows good
cause. The court may specify conditions for the discovery.
What is the requirement of Rule 26 - Duty to Disclose? - (correct answer)Parties must,
without awaiting a discovery request, provide to the other parties: Required Disclosures,
a description of all docs, ESI and tangible things that each party has in its possession,
custody, or control and may use to support its claims unless the use would be solely for
impeachment.
What proceedings are exempt from initial disclosure per Rule 26a1B? - (correct
answer)1. An action for review on an administrative record; 2. forfeiture action; 3.
petition for habeas corpus; 4. action brought without an attorney. 5. action to enforce or
quash an administrative summons or subpoena; 6. action by the US to recover benefit
payments; 7. action to collect a student loan
What may a party serve on any other party according to Rule 26(b)? - (correct answer)A
party may serve on any other party a request for Any designated docs or ESI; Including
writings, drawings, photographs, recordings, images, and other data, stored in any
,medium from which info can be obtained, if necessary, after translation by the
responding party into a reasonably usable form
Is there a Safe Harbor in the rules? - (correct answer)No sanctions for failing to produce
ESI lost as a result of the routine, good-faith operation of an electronic information
system
What is the Mathews test for Proportionality? What does it consider and seeks to
balance? - (correct answer)1. the private interest that will be affected by the official
action; 2. the risk of an erroneous deprivation of such interest through the procedures
used; and 3. the government's interest that the additional or substitute procedural
requirement would entail.
When is there a reasonable anticipation of litigation according to the Sedona
Conference? - (correct answer)1 - It arises when an organization is on notice of a
credible probability that it will become involved in litigation, seriously contemplates
initiating litigation, or when it takes specific actions to commence litigation.
To what type of records do litigation holds apply? - (correct answer)Usually it does not
apply to inaccessible backup tapes maintained solely for disaster recovery, which may
continue to be recycled on the schedule set forth in company's policy. However, if
backup tapes are actively used for info retrieval, then they would be subject to the
litigation hold.
Is it ok for the producing party to scrub the metadata? - (correct answer)Possibly, if
requesting party does not specifically ask for it or for production in the form in which it's
regularly maintained it is more likely
Can we hide behind the Safe Harbor Rule if the duty to preserve has been triggered? -
(correct answer)No.
What are some guidelines to determine when a reasonable anticipation of litigation
arises: - (correct answer)1. Notice of a credible probability of litigation, seriously
, contemplates initiating litigation, or it takes specific actions to commence. 2 -
Determining whether litigation is reasonably anticipated should be based on a good faith
and reasonable evaluation of relevant considerations.
State Rule Rule 26(g) regarding Certification by attorney: - (correct answer)Certifies that
'to the best of the his knowledge' formed after 'reasonable inquiry' the disclosure is
'complete and correct', 'consistent with the rules', 'not unreasonable'. Creates duty of
counsel to make reasonable inquiry into basis of their discovery responses.
What does good faith mean in the conext of a Litigation Hold imply? - (correct
answer)Must stop routine operation once under a duty to preserve info because of
'pending' or 'reasonably anticipated litigation.' Good faith may also require you retain
even not reasonably accessible ESI because it may be ordered disclosed by the court
later.
What are the 4 exceptions to the ESI that will be produced? - (correct answer)1)
inaccessible due to cost or burden. 2) Porportionality. 3) privileged information. Don't
have to produce Attorney Client privilege or work product such as expert reports. 4) lost
as a result of the routine, good-faith operation of an electronic information system.
Explain the concept of inaccessible due to cost or burden. - (correct answer)If not
reasonably accessible, don't have to disclose them right away. So there is a potential
out, that it might be inaccessible because of burden or cost. The burden is on the party
claiming inaccessibility to show undue burden or cost. But, even then the judge may
order you to produce it.
Explain the concept of Proportionality - (correct answer)It allows a party to say this is a
small case, my opponent has asked for all ESI for the last 15 years, etc. Judge has
discretion. If parties get carried away in requesting ESI, judge clearly has discretion to
cut it back based on what is at stake of the case. Look at cost, parties' resources, etc.
Explain the concept of privileged information - (correct answer)Don't have to produce
Attorney Client privilege or work product such as expert reports
WITH ANSWER GRADE A
What is a Clawback agreement? - (correct answer)It outlines procedures to protect
against waiver of privilege or work product protection due to inadvertent production of
documents or data.
Electronic Discovery - (correct answer)The process of identifying, preserving, collecting,
preparing, reviewing, and producing electronically stored information ("ESI") in the
context of the legal process. See Discovery.
ESI - (correct answer)Information that is stored electronically, regardless of the media or
whether it is in the original format in which it was created, as opposed to stored in hard
copy
What is Form of Production? - (correct answer)The specifications for the exchange of
documents and data between parties during a legal dispute. Refers both to file format
and the media.
Metadata - (correct answer)Data typically stored electronically that describes
characteristics of ESI. Can be supplied by applications, users or the file system.
Metadata can describe how, when, and by whom ESI was collected, created, accessed,
modified, and how it is formatted.
Define Spoliation - (correct answer)It is the destruction of records or properties, such as
metadata, that may be relevant to litigation, government investigation, or audit. Courts
differ in their interpretation of the level of intent required before sanctions may be
warranted.
Is a party always obligated to produce ESI? - (correct answer)A party is not obligated to
produce ESI that is "reasonably inaccessible" because of "undue burden or cost."" This
generally refers to ESI stored on backup tapes that are only created to restore a
computer system in case of a disaster or on outdated "legacy" systems that are no
longer used.
,What is the best way to request documentation? - (correct answer)As a general rule,
one should request a full electronic version of documents and emails rather than paper
What is the Safe Harbor provision regarding sanctions for the loss of ESI ? - (correct
answer)Absent exceptional circumstances, a party will not be subject to sanctions for
the loss of ESI as a result of "routine, good faith operation of an electronic info system."
What is a 26(f) meeting? - (correct answer)Parties are required to meet early and confer
about ESI production and discovery. In this conference the parties discuss the form in
which ESI will be produced, what information is in electronic form and where it is
located, anticipated schedule for production, preservation responsibilities, etc.
Are there any limitations to the obligation to provide discovery of ESI? - (correct
answer)A party need not provide discovery of ESI from sources that the party identifies
as not reasonably accessible because of undue burden or cost. The court may
nonetheless order discovery from such sources if the requesting party shows good
cause. The court may specify conditions for the discovery.
What is the requirement of Rule 26 - Duty to Disclose? - (correct answer)Parties must,
without awaiting a discovery request, provide to the other parties: Required Disclosures,
a description of all docs, ESI and tangible things that each party has in its possession,
custody, or control and may use to support its claims unless the use would be solely for
impeachment.
What proceedings are exempt from initial disclosure per Rule 26a1B? - (correct
answer)1. An action for review on an administrative record; 2. forfeiture action; 3.
petition for habeas corpus; 4. action brought without an attorney. 5. action to enforce or
quash an administrative summons or subpoena; 6. action by the US to recover benefit
payments; 7. action to collect a student loan
What may a party serve on any other party according to Rule 26(b)? - (correct answer)A
party may serve on any other party a request for Any designated docs or ESI; Including
writings, drawings, photographs, recordings, images, and other data, stored in any
,medium from which info can be obtained, if necessary, after translation by the
responding party into a reasonably usable form
Is there a Safe Harbor in the rules? - (correct answer)No sanctions for failing to produce
ESI lost as a result of the routine, good-faith operation of an electronic information
system
What is the Mathews test for Proportionality? What does it consider and seeks to
balance? - (correct answer)1. the private interest that will be affected by the official
action; 2. the risk of an erroneous deprivation of such interest through the procedures
used; and 3. the government's interest that the additional or substitute procedural
requirement would entail.
When is there a reasonable anticipation of litigation according to the Sedona
Conference? - (correct answer)1 - It arises when an organization is on notice of a
credible probability that it will become involved in litigation, seriously contemplates
initiating litigation, or when it takes specific actions to commence litigation.
To what type of records do litigation holds apply? - (correct answer)Usually it does not
apply to inaccessible backup tapes maintained solely for disaster recovery, which may
continue to be recycled on the schedule set forth in company's policy. However, if
backup tapes are actively used for info retrieval, then they would be subject to the
litigation hold.
Is it ok for the producing party to scrub the metadata? - (correct answer)Possibly, if
requesting party does not specifically ask for it or for production in the form in which it's
regularly maintained it is more likely
Can we hide behind the Safe Harbor Rule if the duty to preserve has been triggered? -
(correct answer)No.
What are some guidelines to determine when a reasonable anticipation of litigation
arises: - (correct answer)1. Notice of a credible probability of litigation, seriously
, contemplates initiating litigation, or it takes specific actions to commence. 2 -
Determining whether litigation is reasonably anticipated should be based on a good faith
and reasonable evaluation of relevant considerations.
State Rule Rule 26(g) regarding Certification by attorney: - (correct answer)Certifies that
'to the best of the his knowledge' formed after 'reasonable inquiry' the disclosure is
'complete and correct', 'consistent with the rules', 'not unreasonable'. Creates duty of
counsel to make reasonable inquiry into basis of their discovery responses.
What does good faith mean in the conext of a Litigation Hold imply? - (correct
answer)Must stop routine operation once under a duty to preserve info because of
'pending' or 'reasonably anticipated litigation.' Good faith may also require you retain
even not reasonably accessible ESI because it may be ordered disclosed by the court
later.
What are the 4 exceptions to the ESI that will be produced? - (correct answer)1)
inaccessible due to cost or burden. 2) Porportionality. 3) privileged information. Don't
have to produce Attorney Client privilege or work product such as expert reports. 4) lost
as a result of the routine, good-faith operation of an electronic information system.
Explain the concept of inaccessible due to cost or burden. - (correct answer)If not
reasonably accessible, don't have to disclose them right away. So there is a potential
out, that it might be inaccessible because of burden or cost. The burden is on the party
claiming inaccessibility to show undue burden or cost. But, even then the judge may
order you to produce it.
Explain the concept of Proportionality - (correct answer)It allows a party to say this is a
small case, my opponent has asked for all ESI for the last 15 years, etc. Judge has
discretion. If parties get carried away in requesting ESI, judge clearly has discretion to
cut it back based on what is at stake of the case. Look at cost, parties' resources, etc.
Explain the concept of privileged information - (correct answer)Don't have to produce
Attorney Client privilege or work product such as expert reports
