Discovery:

Is it within the scope of the request?

NO

Yes

Is the material discoverable under the FRCP?

Is it relevant to a claim or defense?

NO

Yes
Do circumstances exist that permit the court to limit
discovery of the material?

Is the material unreasonably cumulative or

duplicative? Yes
No

Is there a less burdensome/expensive

alternative?

Does not have to be

Does the burden or expense outweigh the produced/disclosed
likely benefit? (examine factors) absent a court order
No

Is there a need to protect a party from

embarrassment, oppression, or undue burden
or expense?

Yes
Is the material privileged and the privilege has Possible protective
not been waived? order to quash or
limit

No

Good to go! Yes

See Privilege
Flowcharts
Attorney Client Privilege

Assuming the material is discoverable and no other grounds

exist to limit it:

Is the requested material privileged?

Does it pertain to a communication?

Yes

Did it occur in confidence with no 3rd parties No

present?

Yes

Did it involve a licensed attorney acting as such and

client or communication among client’s employees at
behest of attorney?

Yes

Was the communication for the purpose of giving or

seeking legal advice?

Yes

Was the privileged waived?

NO Yes

Protected Not protected

No need to disclose Will be discoverable unless

work product applies
 Work Product

Is the material protected by the work-product doctrine?

Does the material contain mental impressions,

conclusions, opinions, or legal theories of an
attorney or other representative of the party
concerning litigation?
Yes

That portion may

not be disclosed,
No
but other portions
will need to be
determined

Were the materials prepared in anticipation of

litigation?

No
Yes

Was the material prepared by or for the party

receiving the request or by or for that party’s
representative?

Not protected.
Yes
Must disclose

Can the requesting party demonstrate substantial

need and demonstrate that is it unable to obtain
by other feasible means?

Might overcome Protected.

objection and get Yes No
disclosure. No disclosure