Evidence & Discovery Management Flashcards

For a communication to be protected by the attorney-client privilege, which of the following elements must be satisfied?

Answer: The communication must be confidential, between attorney and client, and made for the purpose of seeking or providing legal advice

Attorney-client privilege requires: (1) a confidential communication, (2) between attorney and client (or their agents), (3) made for the purpose of seeking or providing legal advice.

The work product doctrine under FRCP Rule 26(b)(3) protects:

Answer: Documents and tangible things prepared in anticipation of litigation by or for a party or its representative

The work product doctrine protects documents and tangible things prepared in anticipation of litigation or for trial by or for a party or its representative, including attorneys, paralegals, and consultants.

What is a 'clawback' agreement in the context of electronically stored information (ESI) discovery?

Answer: An agreement permitting parties to retrieve inadvertently produced privileged documents without waiving the applicable privilege

A clawback agreement, typically incorporated into a court order under FRE 502(d), allows parties to retrieve inadvertently produced privileged materials without waiving privilege, protecting against the consequences of large-scale ESI review errors.

Which party bears the burden of establishing that a privilege applies to documents withheld from discovery production?

Answer: The party asserting the privilege and withholding the documents

The party asserting a privilege bears the burden of establishing all elements of the privilege claim, typically through a privilege log that provides sufficient information for the opposing party and court to evaluate the claim.

A privilege log in discovery is required to:

Answer: Identify each document withheld on privilege grounds and provide information sufficient to assess the privilege claim

A privilege log must identify each withheld document and typically includes the date, author, recipients, document type, and the privilege asserted, allowing opposing counsel and the court to evaluate the claim without seeing the protected content.

Under FRCP Rule 26(b)(1), the concept of 'proportionality' in discovery requires courts and parties to consider:

Answer: The importance of issues, amount in controversy, parties' resources, and whether discovery burden outweighs its benefit

FRCP Rule 26(b)(1), as amended in 2015, limits discovery to information proportional to the needs of the case, weighing factors including the importance of the issues, amount in controversy, parties' access to information and resources, and the burden versus benefit of the requested discovery.

Which of the following is NOT a sanction a court may impose for discovery misconduct or spoliation of evidence?

Answer: Ordering immediate disbarment of the offending party's attorney

Courts have broad authority to sanction discovery misconduct through adverse inference instructions, dismissal, default judgment, and exclusion of evidence, but disbarment is a disciplinary matter handled by bar authorities, not an available court sanction for discovery violations.