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Paralegal Course > E-Discovery > Flashcards

E-Discovery Flashcards

1
Q

There is no separate pretrial procedure called “E-Discovery”

A

TRUE

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2
Q

ESI

A

Electronically Stored Information

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3
Q

E-Discovery has to do with requesting and providing

A

Electronically Stored Information (ESI).

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4
Q

Name some forms of ESI

A 
Emails
instant messaging chats
texts, tweets
accounting databases
CAD files
CAM files
documents
websites
browsing history
PDF files
scanned documents
all kinds of databases
photo and video files
hard drives and network attached files
small portable drives
storage devices like backup storage and storage maintained on tapes, CDs, DVDs, floppy discs.
data from cellular/landline phones
SIM cards
call history
contacts
voicemail
and clouds.
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5
Q

CAD

A

computer-aided design

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6
Q

CAM

A

computer-aided manufacturing

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7
Q

PDF

A

portable document format

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8
Q

CD

A

compact disc

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9
Q

DVD

A

digital video disc

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10
Q

SIM

A

subscriber identity module

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11
Q

ESI also includes information stored in cloud computing and anything stored in the “cloud,” remote storage systems hosted on the internet that are used to store, manage, and process data.

A

TRUE

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12
Q

What is the “cloud?”

A

remote storage systems hosted on the internet that are used to store, manage, and process data.

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13
Q

There must be a legal reason for ESI (electronically stored information). If you cannot articulate why certain ESI (electronically stored information) is ____________________, be careful about demanding its retention.

A

relevant

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14
Q

What is a preservation letter?

A

This is an internal letter that instructs your client and others connected to your client (relevant contractors/witnesses) to preserve ESI.

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15
Q

An internal letter that instructs your client and others connected to your client (relevant contractors/witnesses) to preserve ESI.

A

preservation letter

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16
Q

What are some of the unique challenges presented by ESI?

A

even opening ESI changes metadata
ESI is often not formatted for printing
ESI must often be interpreted to be useful
The huge amount of ESI available

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17
Q

What is Metadata?

A

“data about data”

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18
Q

What is “data about data” called?

A

metadata

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19
Q

What does Metadata show?

A

shows the documents last access or creation dates. So just opening a doc irretrievably changes the metadata.

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20
Q

What is metadata and what does it show?

A

Metadata is “data about data” and it shows the document’s last access or creation dates. So just opening a document irretrievably changes the metadata.

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21
Q

When litigation is ________________________________, a litigation hold letter is issued to make sure ESI is not changed or destroyed.

A

reasonably anticipated

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22
Q

When litigation is “reasonably anticipated” a ___________________________is issued to make sure ESI is not changed or destroyed.

A

litigation hold letter

23
Q

A litigation hold is essentially the same as a ___________________________________.

A

preservation letter

24
Q

What’s in the litigation hold letter?

A
  1. Identity of the parties
  2. Descriptions of the legal claims.
  3. Scope of the legal hold.
  4. Likely sources of relevant ESI.
25
Q

What does “preserve” mean?

A
  1. Don’t delete potentially relevant info.
  2. Don’t change potentially relevant info.
  3. Suspend all auto delete or overwriting.
  4. Do not discard old computers.
  5. Printing out everything is not sufficient.
26
Q

Often companies maintain only the latest version of documents on servers so the hold should say to ______________ disposing of, or writing over, potential evidence.

A

halt

27
Q

In the litigation hold letter, be specific, focus on relevance to the underlying claim of the lawsuit. Identify relevant business units, time periods, and employees. Define ESI broadly, BUT make sure it is enforceable. If the letter says “save everything from everybody on every computer or storage device,” what might happen?

A

Then it will not be enforced by a court and might even be seen as discovery abuse.

28
Q

How long does a litigation hold letter last?

A

A Litigation Hold remains in effect until the SoL has expired, or, if litigation has commenced, then until all appeals have been exhausted.

29
Q

SoL

A

statute of limitations

30
Q

A ___________________________ remains in effect until the SoL has expired, or, if litigation has commenced, then until ______________________________.

A
  1. litigation hold

2. all appeals have been exhausted

31
Q

How long does a litigation hold last?

A

It remains in effect until the SoL has expired, or if litigation has commenced, then until all appeals have been exhausted.

32
Q

Sometimes litigation holds last for years. Many months may pass between preservation and e-discovery.

A

TRUE

33
Q

What is Spoliation?

A

Intentional or negligent withholding, hiding, altering, or destroying evidence relevant to a legal proceeding.

34
Q

Intentional or negligent withholding, hiding, altering, or destroying evidence relevant to a legal proceeding.

A

spoliation

35
Q

The ________________is allowed to infer that a party who destroyed or changed evidence has a ______________________ to avoid the evidence.

A
  1. trier of fact

2. consciousness of guilt

36
Q

What is spoliation inference?

A

the trier of fact is allowed to infer that a party who destroyed or changed evidence has a “consciousness of guilt” to avoid the evidence. The fact finder may conclude that the evidence would have been unfavorable to the spoliator.

37
Q

Spoliation Inference?

A

The trier of fact is allowed to infer that a party who destroyed or changed evidence has a “consciousness of guilt” to avoid the evidence. The factfinder may conclude that the evidence would have been unfavorable to the spoliator.

38
Q

The ______________ is allowed to infer that a party who destroyed or changed evidence has a _______________________ to avoid the evidence. The fact finder may conclude that the evidence would have been unfavorable to the __________________.

A
  1. trier of fact
  2. consciousness of guilt
  3. spoliator
39
Q

Zubulake?

A

the most oft-cited e-discovery case is Zubulake v. UBS Warburg, LLC, 217 F.R.D. 309 (S.D.N.Y. 2003).

40
Q

What was the Zubulake case about?

A

employment discrimination

41
Q

What did the plaintiff claim in the Zubulake case?

A

that important evidence could be found in UBS emails.

42
Q

UBS said it would cost $175,000 to restore the emails because they existed only on backup tapes or other archives. And that didn’t even count paying attorneys to review all the emails.

A

TRUE

43
Q

Undue Burden or Expense?

A

There is an exception for having to provide ESI if it would be unduly burdensome or expensive. But the court said that it depends on whether the ESI is an accessible or inaccessible format.

44
Q

What’s the difference between accessible and inaccessible formats?

A

Accessible documents are readily available in a usable format and reasonably indexed. Inaccessible documents are either in difficult to reach storage, converted to mirofiche & not easily readable, or docs with no index system in quantities making searches impracticable.

45
Q

Zubulake created a standard of 5 categories of ESI. First 3 are considered accessible, last 2 considered to be inaccessible

A

TRUE

46
Q

So who pays for ESI?

A

if the documents are accessible, then the responding party pays. If the documents are inaccessible, then the court may use a cost shifting analysis.

47
Q

Who pays for accessible ESI?

A

responding party

48
Q

Who pays for inaccessible ESI?

A

the court may use a cost-shifting analysis

49
Q

As a paralegal in a law firm what do you need to know about e-discovery?

A
  1. What you can request
  2. What you’ll have to provide
  3. How to get it
  4. When cost-sharing might occur
50
Q

In corporate legal departments, knowledge of e-discovery issues may be even more important. Companies have a lot of ESI that is discoverable, but most companies have not incorporated e-discovery as a business process.

A

TRUE

51
Q

Know when NOT to send a hold.

A

Obvious reasons to send early, strategic reasons to delay.
Once the letter is sent, the other side will hire an attorney, which triggers an “anticipation of litigation” privilege and may shield some ESI.

52
Q

“anticipation of litigation” privilege

A

may shield some ESI.

53
Q

Rules on e-discovery?

A

Some issues have been resolved by case law, and electronic discovery is also referenced in both the TRCP and the FRCP.

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