329 U.S. 495 (1947), 47, Hickman v. Taylor

Docket Nº:No. 47
Citation:329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451
Party Name:Hickman v. Taylor
Case Date:January 13, 1947
Court:United States Supreme Court
 
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Page 495

329 U.S. 495 (1947)

67 S.Ct. 385, 91 L.Ed. 451

Hickman

v.

Taylor

No. 47

United States Supreme Court

Jan. 13, 1947

Argued November 13, 1946

CERTIORARI TO THE CIRCUIT COURT OF APPEALS

FOR THE THIRD CIRCUIT

Syllabus

Under the Federal Rules of Civil Procedure, plaintiff in a suit in a federal district court against certain tug owners to recover for the death of a seaman in the sinking of the tug filed numerous interrogatories directed to the defendants, including one inquiring whether any statements of members of the crew were taken in connection with the accident and requesting that exact copies of all such written statements be attached and that the defendant "set forth in detail the exact provisions of any such oral statements or reports." There was no showing of necessity or other justification for these requests. A public hearing had been held before the United States Steamboat Inspectors at which the survivors of the accident had been examined and their testimony recorded and made available to all interested parties. Defendants answered all other interrogatories, stating objective facts and giving the names and addresses of witnesses, but declined to summarize or set forth the statements taken from witnesses, on the ground that they were "privileged matter obtained in preparation for litigation." After a hearing on objections to the interrogatories, the District Court held that the requested matters were not privileged and decreed that they be produced and that memoranda of defendants' counsel containing statements of fact by witnesses either be produced or submitted to the court for determination of those portions which should be revealed to plaintiff. Defendants and their counsel refused, and were adjudged guilty of contempt.

Held:

1. In these circumstances, Rules 26, 33 and 34 of the Federal Rules of Civil Procedure do not require the production as of right of oral and written statements of witnesses secured by an adverse party's counsel in the course of preparation for possible litigation after a claim has arisen. Pp. 509-514.

2. Since plaintiff addressed simple interrogatories to adverse parties, did not direct them to such parties or their counsel by way of deposition under Rule 26, and it does not appear that he filed a

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motion under Rule 34 for a court order directing the production of the documents in question, he was proceeding primarily under Rule 33, relating to interrogatories to parties. P. 504.

3. Rules 33 and 34 are limited to parties, thereby excluding their counsel or agents. P. 504.

4. Rule 33 did not permit the plaintiff to obtain, as adjuncts to interrogatories addressed to defendants, memoranda and statements prepared by their counsel after a claim had arisen. P. 504.

5. The District Court erred in holding defendants in contempt for failure to produce that which was in the possession of their counsel, and in holding their counsel in contempt for failure to produce that which he could not be compelled to produce under either Rule 33 or Rule 34. P. 505.

6. Memoranda, statements, and mental impressions prepared or obtained from interviews with witnesses by counsel in preparing for litigation after a claim has arisen are not within the attorney-client privilege, and are not protected from discovery on that basis. P. 508.

7. The general policy against invading the privacy of an attorney's course of preparation is so essential to an orderly working of our system of legal procedure that a burden rests on the one who would invade that privacy to establish adequate reasons to justify production through a subpoena or court order. P. 512.

8. Rule 30(b) gives the trial judge the requisite discretion to make a judgment as to whether discovery should be allowed as to written statements secured from witnesses; but, in this case, there was no ground for the exercise of that discretion in favor of plaintiff. P. 512.

9. Under the circumstances of this case, no showing of necessity could be made which would justify requiring the production of oral statements made by witnesses to defendants' counsel, whether presently in the form of his mental impressions or in the form of memoranda. P. 512.

153 F.2d 212 affirmed.

A District Court adjudged respondents guilty of contempt for failure to produce, in response to interrogatories, copies of certain written statements and memoranda prepared by counsel in connection with pending litigation. 4 F.R.D. 479. The Circuit Court of Appeals reversed. 153 F.2d 212. This Court granted certiorari. 328 U.S. 876. Affirmed, p. 514.

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MURPHY, J., lead opinion

MR. JUSTICE MURPHY delivered the opinion of the Court.

This case presents an important problem under the Federal Rules of Civil Procedure as to the extent to which a party may inquire into oral and written statements of witnesses, or other information, secured by an adverse party's counsel in the course of preparation for possible litigation after a claim has arisen. Examination into a person's files and records, including those resulting from the professional activities of an attorney, must be judged with care. It is not without reason that various safeguards have been established to preclude unwarranted excursions into the privacy of a man's work. At the same time, public policy supports reasonable and necessary inquiries. Properly to balance these competing interests is a delicate and difficult task.

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On February 7, 1943, the tug "J. M. Taylor" sank while engaged in helping to tow a car float of the Baltimore & Ohio Railroad across the Delaware River at Philadelphia. The accident was apparently unusual in nature, the cause of it still being unknown. Five of the nine crew members were drowned. Three days later, the tug owners and the underwriters employed a law firm, of which respondent Fortenbaugh is a member, to defend them against potential suits by representatives of the deceased crew members and to sue the railroad for damages to the tug.

A public hearing was held on March 4, 1943, before the United States Steamboat Inspectors at which the four survivors were examined. This testimony was recorded and made available to all interested parties. Shortly thereafter, Fortenbaugh privately interviewed the survivors and took statements from them with an eye toward the anticipated litigation; the survivors signed these statements on March 29. Fortenbaugh also interviewed other persons believed to have some information relating to the accident, and in some cases he made memoranda of what they told him. At the time when Fortenbaugh secured the statements of the survivors, representatives of two of the deceased crew members had been in communication with him. Ultimately claims were presented by representatives of all five of the deceased; four of the claims, however, were settled without litigation. The fifth claimant, petitioner herein, brought suit in a federal court under the Jones Act on November 26, 1943, naming as defendants the two tug owners, individually and as partners, and the railroad.

One year later, petitioner filed 39 interrogatories directed to the tug owners. The 38th interrogatory read:

State whether any statements of the members of the crews of the Tugs "J. M. Taylor" and "Philadelphia" or of any other vessel were taken in connection with the towing of the car float and the sinking of the Tug "John M. Taylor."

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Attach hereto exact copies of all such statements if in writing, and if oral, set forth in detail the exact provisions of any such oral statements or reports.

Supplemental interrogatories asked whether any oral or written statements, records, reports, or other memoranda had been made [67 S.Ct. 388] concerning any matter relative to the towing operation, the sinking of the tug, the salvaging and repair of the tug, and the death of the deceased. If the answer was in the affirmative, the tug owners were then requested to set forth the nature of all such records, reports, statements, or other memoranda.

The tug owners, through Fortenbaugh, answered all of the interrogatories except No. 38 and the supplemental ones just described. While admitting that statements of the survivors had been taken, they declined to summarize or set forth the contents. They did so on the ground that such requests called "for privileged matter obtained in preparation for litigation," and constituted "an attempt to obtain indirectly counsel's private files." It was claimed that answering these requests "would involve practically turning over not only the complete files, but also the telephone records and, almost, the thoughts, of counsel."

In connection with the hearing on these objections, Fortenbaugh made a written statement and gave an informal oral deposition explaining the circumstances under which he had taken the statements. But he was not expressly asked in the deposition to produce the statements. The District Court for the Eastern District of Pennsylvania, sitting en banc, held that the requested matters were not privileged. 4 F.R.D. 479. The court then decreed that the tug owners and Fortenbaugh, as counsel and agent for the tug owners forthwith

answer Plaintiff's 38th interrogatory and supplemental interrogatories; produce all written statements of witnesses obtained by Mr. Fortenbaugh, as counsel and agent for Defendants;

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state in substance any fact concerning this case which Defendants learned through oral statements made by witnesses to Mr. Fortenbaugh, whether or not included in his private memoranda, and produce Mr. Fortenbaugh's memoranda containing statements of fact by witnesses or to submit these memoranda to the Court for determination of those portions which should be revealed to...

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