Hickman v. Taylor, No. 47

CourtUnited States Supreme Court
Writing for the CourtMURPHY
Citation67 S.Ct. 385,329 U.S. 495,91 L.Ed. 451
Decision Date13 January 1947
Docket NumberNo. 47
PartiesHICKMAN v. TAYLOR et al

329 U.S. 495
67 S.Ct. 385
91 L.Ed. 451
HICKMAN

v.

TAYLOR et al.

No. 47.
Argued Nov. 13, 1946.
Decided Jan. 13, 1947.

[Syllabus from pages 495-497 intentionally omitted]

Page 497

Mr.Abraham E. Freedman, of Philadelphia, Pa., for petitioner.

Messrs. William I. Radner, of Washington, D.C., and Samuel B. Fortenbaugh, Jr., of Philadelphia, Pa., for respondents.

Mr. Justice MURPHY delivered the opinion of the Court.

This case presents an important problem under the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, 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.

Page 498

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 responden 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. Tay-

Page 499

lor'.

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 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;

Page 500

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 Plaintiff.' Upon their refusal, the court adjudged them in contempt and ordered them imprisoned until they complied.

The Third Circuit Court of Appeals, also sitting en banc, reversed the judgment of the District Court. 153 F.2d 212. It held that the information here sought was part of the 'work product of the lawyer' and hence privileged from discovery under the Federal Rules of Civil Procedure. The importance of the problem, which has engendered a great divergence of views among district courts,1 led us to grant certiorari. 328 U.S. 876, 66 S.Ct. 1337.

The pre-trial deposition-discovery mechanism established by Rules 26 to 37 is one of the most significant innovations of the Federal Rules of Civil Procedure. Under the prior federal practice, the pre-trial functions of notice-giving issue-formulation and fact-revelation were performed primarily and inadequately by the pleadings.2 Inquiry into the issues and the facts before trial was

Page 501

narrowly confined and was often cumbersome in method.3 The new rules, however, restrict the pleadings to the task of general notice-giving and invest the deposition-discovery process with a vital role in the preparation for trial. The various instruments of discovery now serve (1) as a device, along with the pre-trial hearing under Rule 16, to narrow and clarify the basic issues between the parties, and (2) as a device for ascertaining the facts, or information as to the existence or whereabouts of facts, relative to those issues. Thus civil trials in the federal courts no longer need be carried on in the dark. The way is now clear, consistent with recognized privileges, for the parties to obtain the fullest possible knowledge of the issues and facts before trial.4

There is an initial question as to which of the deposition-discovery rules is involved in this case. Petitioner, in filing his interrogatories, thought that he was proceeding under Rule 33. That rule provides that a party may serve upon any adverse party written interrogatories to be answered by the party served.5 The District Court pro-

Page 502

ceeded on the same assumption in its opinion, although its order to produce and its contempt order stated that both Rules 33 and 34 were involved. Rule 34 establishes a procedure whereby, upon motion of any party showing good cause therefor and upon notice to all other parties, the court may order any party to produce and permit the inspection and copying or photographing of any designated documents, etc., not privileged, which constitute or contain evidence material to any matter involved in the action and which are in his possession, custody or control.6

The Circuit Court of Appeals, however, felt that Rule 26 was the crucial one. Petitioner, it said, was proceeding by interrogatories and, in connection with those interrogatories, wanted copies of memoranda and statements secured from witnesses. While the court believed that Rule 33 was involved, at least as to the defending tug owners, it stated that this rule could not be used as the basis for condemning Fortenbaugh's failure to disclose or produce

Page 503

the memoranda and statements, since the rule applies only to interrogatories addressed to adverse parties, not to their agents or counsel. And Rule 34 was said to be inapplicable since petitioner was not trying to see an original document and to copy or photograph it, within the scope of that rule. The court then concluded that Rule 26 must be the one really involved. That provides that the testimony of any person, whether a party or not, may be taken by any party by deposition upon oral examination or written interrogatories for the purpose of discovery or for use as evidence; and that the deponent may be examined regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether relating to the claim or defense of the examining party or of any other party, including the existence, description, nature, custody, condition and location of any books, documents or other tangible things.7

Page 504

The matter is not without difficulty in light of the events that transpired below. We believe, however, that petitioner was proceeding primarily under Rule 33. He addressed simple interrogatories solely to the individual tug owners, the adverse parties, as contemplated by that rule. He did not, and could not under Rule 33, address such interrogatories to their...

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4498 practice notes
  • Regulations to Amend the Civil Procedures
    • United States
    • Federal Register June 23, 2010
    • June 23, 2010
    ...attorney's thought processes in deciding what facts and arguments to present. As the U.S. Supreme Court established in Hickman v. Taylor, 329 U.S. 495 (1947), such thought processes are protected from disclosure absent a compelling need, which is not present here. See also Shelton v. Americ......
  • United States v. Bonnell, Civ. No. 4-78-190
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Minnesota
    • December 27, 1979
    ...large accounting firm. The Seventh Circuit based its decision that the document was not privileged on this passage from Hickman v. Taylor, 329 U.S. 495, 508, 67 S.Ct. 385, 392, 91 L.Ed. 451 The protective cloak of this privilege does not extend to information which an attorney secures from ......
  • Klitzman, Klitzman & Gallagher v. Krut, Civ. A. No. 84-2180.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • June 25, 1984
    ...See generally United States v. Nobles, 422 U.S. 225, 236-40, 95 S.Ct. 2160, 2169-71, 45 L.Ed.2d 141 (1975), citing Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947). And, of course, it is "universally accepted that the attorney-client privilege may be raised by the attorney......
  • Dacosta v. City of N.Y., 15–CV–5174
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • November 8, 2017
    ...information—"[m]utual knowledge of all the relevant facts gathered by both parties is essential to proper litigation." Hickman v. Taylor , 329 U.S. 495, 507, 67 S.Ct. 385, 91 L.Ed. 451 (1947). In order to facilitate this sharing of information, "[c]ounsel are expected to cooperate with each......
  • Request a trial to view additional results
4478 cases
  • United States v. Bonnell, Civ. No. 4-78-190
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Minnesota
    • December 27, 1979
    ...large accounting firm. The Seventh Circuit based its decision that the document was not privileged on this passage from Hickman v. Taylor, 329 U.S. 495, 508, 67 S.Ct. 385, 392, 91 L.Ed. 451 The protective cloak of this privilege does not extend to information which an attorney secures from ......
  • Klitzman, Klitzman & Gallagher v. Krut, Civ. A. No. 84-2180.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • June 25, 1984
    ...See generally United States v. Nobles, 422 U.S. 225, 236-40, 95 S.Ct. 2160, 2169-71, 45 L.Ed.2d 141 (1975), citing Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947). And, of course, it is "universally accepted that the attorney-client privilege may be raised by the attorney......
  • Dacosta v. City of N.Y., 15–CV–5174
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • November 8, 2017
    ...information—"[m]utual knowledge of all the relevant facts gathered by both parties is essential to proper litigation." Hickman v. Taylor , 329 U.S. 495, 507, 67 S.Ct. 385, 91 L.Ed. 451 (1947). In order to facilitate this sharing of information, "[c]ounsel are expected to cooperate with each......
  • Tavoulareas v. Washington Post Co., No. 83-1688
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • March 15, 1984
    ...by the substantial interest of ensuring "the fullest possible knowledge of the issues and facts before trial." Hickman v. Taylor, 329 U.S. 495, 501, 67 S.Ct. 385, 388, 91 L.Ed. 451 (1947). By unsealing the depositions, the district court has sanctioned public dissemination of Mobil's sensit......
  • Request a trial to view additional results
5 firm's commentaries
6 books & journal articles
  • Grand Juries, Subpoenas, Document Production Issues in the Digital Age, Internal Investigation, and More
    • United States
    • Environmental crimes deskbook 2nd edition Part Two
    • June 20, 2014
    ...investigation; • a statement of the conidential nature of the investigation; 14. Id. at 394-95. 15. Id. at 394. 16. See Hickman v. Taylor, 329 U.S. 495 (1947), cert. denied , 336 U.S. 906 (1949). 17. See generally Richard Marmaro, Protecting the Results of Internal Corporate Investigations ......
  • Ominous Oversight: The Usurpation of an Executive Agency's Right to Candid and Independent Legal Advice During Prohibited Personnel Practices and Retaliation Investigations and Prosecutions.
    • United States
    • Air Force Law Review Nbr. 82, March 2022
    • March 22, 2022
    ...Rubber Co., 437 U.S. 214 (1978); Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854 (D.C. Cir. 1980)). [99] Hickman v. Taylor, 329 U.S. 495 [100] Marion J. Radson & Elizabeth A. Waratuke, The Attorney-Client and Work Product Privileges of Government Entities, 30 Stetson L. Rev. 7......
  • ATTORNEYS, E-DISCOVERY, AND THE CASE FOR 37(G).
    • United States
    • Notre Dame Law Review Vol. 97 Nbr. 5, May 2022
    • May 1, 2022
    ...LEGAL HIST. 152, 152 (2015). (15) Subrin. supra note 9, at 740. (16) Id. at 710; O'Brien, supra note 9, at 157 (quoting Hickman v. Taylor, 329 U.S. 495, 501 (1947)). See also Hickman, 329 U.S. at 507 ("[D]iscovery rules are to be accorded a broad and liberal treatment. No longer can the tim......
  • DIGITAL CIVIL PROCEDURE.
    • United States
    • University of Pennsylvania Law Review Vol. 169 Nbr. 8, August 2021
    • August 1, 2021
    ...uniformity may, over time, encourage even broader procedural innovations."). (92) See Engstrom & Gelbach, supra note 88, at 1059. (93) 329 U.S. 495, 511-12 (1947) (establishing the work product (94) Id. at 516. (95) Id. at 512 ("[T]he general policy against invading the privacy of an at......
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