ACP Evidence & Discovery Management 3

Question 1

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

Accepted Answer

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

Answer

The communication must be in writing and retained in the client's file

Answer

The communication must be witnessed by a notary or another attorney in the firm

Answer

The attorney must be licensed in the jurisdiction where the communication occurred

Question 2

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

Accepted Answer

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

Answer

All documents created by any person working on the litigation team

Answer

Only oral and written communications between an attorney and the client

Answer

Expert reports prepared by retained experts for use at trial

Question 3

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

Accepted Answer

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

Answer

An agreement to retrieve documents mistakenly transmitted to the wrong opposing party

Answer

A court order requiring return of improperly seized evidence to its owner

Answer

An agreement to return all physical trial exhibits to the producing party after trial concludes

Question 4

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

Accepted Answer

The party asserting the privilege and withholding the documents

Answer

The party requesting production of the documents

Answer

The court, through in camera review of the withheld materials

Answer

Both parties share an equal burden to address the privilege claim

Question 5

A privilege log in discovery is required to:

Accepted Answer

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

Answer

List all documents produced in discovery for verification and tracking purposes

Answer

Log all attorney-client communications chronologically during the case

Answer

Record all objections made during depositions and the bases for those objections

Question 6

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

Accepted Answer

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

Answer

Whether equal numbers of documents are being produced by each party to the litigation

Answer

Whether deposition time is divided equally between the deposing party and the deponent's counsel

Answer

Whether discovery costs should be split equally between the requesting and producing parties

Question 7

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

Accepted Answer

Ordering immediate disbarment of the offending party's attorney

Answer

Issuing an adverse inference instruction directing the jury to assume the destroyed evidence was unfavorable

Answer

Dismissing the case or entering a default judgment against the offending party

Answer

Excluding the offending party's witnesses or barring certain evidence at trial