Litigation Strategy & Case Management Flashcards

Under FRCP 26(f), the parties must confer to plan discovery at least how long before a scheduling conference is held or a Rule 16(b) scheduling order is due?

Answer: 21 days

Rule 26(f)(1) requires the conference as soon as practicable and at least 21 days before the scheduling conference or scheduling order deadline.

When does a party's duty to preserve potentially relevant evidence, including ESI, generally arise?

Answer: When litigation is reasonably anticipated

The duty to preserve attaches once litigation is reasonably foreseeable, which can come before any suit is filed.

Under FRCP 37(e)(2), what must a court find before giving an adverse-inference jury instruction for lost ESI?

Answer: The party acted with intent to deprive another party of the information

The harshest Rule 37(e)(2) sanctions require a finding of intent to deprive, and negligence or gross negligence is not enough.

Which of the following is NOT a proportionality factor under FRCP 26(b)(1)?

Answer: Whether the information would be admissible at trial

Rule 26(b)(1) says information within the scope of discovery need not be admissible in evidence to be discoverable.

What is the main purpose of an early case assessment (ECA) in a complex financial dispute?

Answer: To evaluate merits, exposure, and likely costs so the client can choose a strategy such as settling or litigating

An ECA weighs the facts, legal risk, damages, and defense costs early so the client can make an informed decision about litigation or settlement.

Under FRCP 68, if a plaintiff rejects an offer of judgment and the final judgment is not more favorable than the offer, what follows?

Answer: The plaintiff must pay the costs incurred after the offer was made

Rule 68(d) shifts post-offer costs to the offeree, and those costs include attorney's fees only when the underlying statute defines them that way.

In a litigation decision-tree analysis, how is the expected value of continuing to trial usually calculated?

Answer: Each outcome multiplied by its probability, summed, then reduced by the expected cost of litigation

Expected value weights each outcome by its probability and then subtracts the anticipated litigation costs, which gives a rational settlement benchmark.