DISCOVERY CLAIMING PRIVILEGE In order to claim privilege a party must expressly make the claim for privilege and

d specify the nature of the documents, communications, or tangible things in a manner that will enable the other parties to assess your claim without revealing/disclosing the information in its entirety. [FRCP 26(b)(5)]. If you disagree with an assertion of privilege, you may file a motion to compel discovery pursuant to FRCP 37. The motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action. If you do not want privileged information discussed, a party or any person from whom discovery is sought may move for a protective order in the court where the action is pending. Such an order is typically used in an effort to prevent a person from annoyance, embarrassment, oppression, or undue burden or expense by the disclosure of certain things. [FRCP 26(c)].

If you accidentally give up something privileged, you must act quickly. Pursuant to FRCP 26(b)(5)(B), you must follow the following steps: (1) notify the other side and tell them you sent something privileged; doing so triggers the next step that (2) the notified party must return, sequester, or destroy it and cannot use the information in any way; they also have a duty to go after anyone it may have been given to in order to get it back (known as the claw it back clause). If you are the notified party and you disagree with the party claiming the information you received is privileged, you must ask the court to resolve whether or not this is so.

In order to assert attorney-client privilege, there must be four elements present as shown in Upjohn Co. v. U.S.. The information must be (1) a communication (does not have to be oral) (2) between a lawyer and a client (3) in a confidential setting (4) for the purpose of giving and/or receiving legal advice. If the communication is shared with, overheard by, said in the presence of, or passed on to a third party, you lose privilege as to that information.

Pursuant to FRCP 26(b)(3) an assertion of the work product privilege protection, there must be three elements present. The work product must be (1) documents and tangible things (2) prepared in anticipation of litigation or for trial (3) by or for another party or attorney. There are two types of work product. The first is opinion work product which must be protected. [26(b)(3)(B)]. Opinion work product includes mental impressions, conclusions, opinions, legal theories, and/or litigation strategies. This type of work product is afforded the highest level of protection. The second is non-opinion work product which may be discovered if the party attempting to discover the information can show a substantial need for the materials in order to prepare its case and can also prove that it cannot obtain the equivalent without undue hardship. This type of work product includes everything outside of opinion work product (i.e. research).