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DISCOVERY CHECKLIST

A. RESPONSIVENESS. Is the material in question within the scope of a request?


1. No. If not, the material does not have to be produced or disclosed.
2. Yes. If so, proceed to the next question.
B. DISCOVERABILITYis the material requested discoverable under the Federal Rules?
1. Relevanceis the material relevant to a claim or defense of any party in the action?
a. No. If the claim is not relevant to a claim or defense, it is beyond the permissible scope
of discovery absentan order from the court permitting discovery of material relevant to
the subject matter of the action.24
b. Yes. If the material is relevant to a claim or defense, it is discoverable, unless the court
decides to limit the discovery or it is material that is protected from discovery.
2. Limitationsdo circumstances exist that permit the court to limit discovery of the material or
information in question? The court may limit discovery if any of the following questions can
be answered in the affirmative:
a. Duplicativeis the requested material unreasonably cumulative or duplicative of material
already sought and received?
b. Less Burdensome Alternativeis the requested information obtainable from some other
source that is more convenient, less burdensome, or less expensive?
c. Missed Opportunityhas the requesting party had ample opportunity through discovery to
obtain the information sought?
d. Cost Surpasses Benefitdoes the burden or expense of the proposed discovery outweigh its
likely benefit? This question is especially pertinent to electronically stored information, which
need not be produced if it is contained within sources that are not reasonably accessible because
of undue burden or cost. The following factors are to be considered when determining
whether burdensome, costly, or not reasonably accessible information should be produced:
i.
ii.
iii.
iv.
v.

The needs of the case;


The amount in controversy;
The parties resources;
The importance of the issues at stake in the litigation; and
The importance of the proposed discovery in resolving the issues.

3. Annoyance, Embarrassment, etc. Is there a need to protect a party or person from


annoyance, embarrassment, oppression, or undue burden or expense?
a. Yes. If so, the court may enter a protective order that orders any one of the
following:
i.
ii.
iii.
iv.
v.
vi.
vii.
viii.

The discovery will not be had;


The discovery may be had only on specified terms and conditions;
The discovery may be had only by a method of discovery other than that selected by the
party seeking discovery;
That certain matters not be inquired into or that the discovery be limited to certain
matters;
That the discovery be conducted with no one present except persons designated by the
court;
That a deposition after being sealed be opened only by order of the court;
That a trade secret or other confidential information not be revealed or only be revealed
in a designated way; or
That the parties simultaneously file specified documents or information enclosed in
sealed envelopes as directed by the court.
b. No. If there is no need for protection, the court will not enter a protective order
covering the requested material on the grounds of annoyance, embarrassment, etc.

C. NUMERICAL/TIME LIMITATIONSis the requested discovery beyond an amount


permitted under the Federal Rules (assuming no court permission or party consent)?
1. Interrogatories. Interrogatories are capped at 25 absent court order or consent. So an
interrogatory beyond that limit may be objected to.
2. Depositions. Depositions are limited to 10 of no longer than 7 hours each absent court order
or consent.
D. ATTORNEY-CLIENT PRIVILEGEassuming the material is discoverable and there are
no other grounds for limiting discovery of the material or information in question, is the
requested material privileged from disclosure?
1. Communicationdoes the material pertain to a communication?
a. No. If not, the information is not protected by the attorney-client privilege and will be
discoverable unless work-product protection applies.
b. Yes. If so, proceed to the next question.

2. Confidentialitydid the communication occur in confidence exclusive of any third parties


not party to the privileged relationship?
a. No. If not, the information is not protected by the attorney-client privilege and will be
discoverable unless work-product protection applies.
b. Yes. If so, proceed to the next question.
3. Between an Attorney & Clientdid the communication involve a licensed attorney acting as
such and her client or was the communication among the clients employees generated by or at
the behest of an attorney acting as such?
a. No. If not, the information is not protected by the attorney-client privilege and will be
discoverable unless work-product protection applies.
b. Yes. If so, proceed to the next question.
4. Legal Advicewas the communication for the purpose of giving or seeking legal advice?
a. No. If not, the information is not protected by the attorney-client privilege and will be
discoverable unless work-product protection applies.
b. Yes. If so, proceed to the next question.
5. Waiverif the answer to each of the above questions is yes, was the privilege waived by
disclosure of the communication to third parties outside of the privileged relationship?
a. No. If not, the privilege applies to the material and it is not discoverable and need not
be disclosed.
b. Yes. If so, the privilege has been waived and may not be asserted to prevent disclosure
of the material. However, proceed to Part C to determine whether work-product
protection applies.
E. WORK-PRODUCT PROTECTIONis the material protected from discovery by the workproduct doctrine?
1. Legal Thoughtsdoes the material contain the mental impressions, conclusions, opinions, or
legal theories of an attorney or other representative of the party concerning the litigation?
a. Yes. If so, that portion of the material may not be disclosed under any circumstances.
Proceed to the next question to determine whether any remaining material must be
disclosed.
b. No. If not, proceed to the next question to see if the material is protected work product.

2. Trial Preparationwere the materials prepared in anticipation of litigation?


a. Yes. If so, proceed to the next question.
b. No. If not, the material is not protected by the work-product doctrine.
3. Preparer of Materialwas the material prepared by or for the party receiving the request or
by or for that partys representative?
a. Yes. If so, the material is protected work product. Proceed to the next question to
determine whether the court can nonetheless order it to be disclosed to the requesting
party.
b. No. If not, then the party receiving the request may not claim work-product protection
over the material and will have to disclose it.
4. Substantial Needcan the party requesting the material demonstrate it has a substantial need
for the materials to prepare its case?
a. No. If not, the party will not be able to overcome the objection that the material is
protected work product.
b. Yes. If so, proceed to the next question.
5. Other Meanscan the party requesting the material demonstrate that it is unable, without
undue hardship, to obtain the substantial equivalent of the materials by some other means?
a. Yes. If so, the court may order that the work product be disclosed to the requesting
party.
b. No. If not, the party will not be able to overcome the objection that the material is
protected work product.