Brief Fact Summary. Following an accident involving one of their tug boats, two tug owners (Defendants) fearing litigation, hired an attorney who interviewed several of the surviving crew members of the tug accident. A year later, after filing suit against the tug owner, a representative of one of the victims of the accident filed an interrogatory requesting the content of the interviews conducted by the tug owners’ attorney with the survivors.
Synopsis of Rule of Law. While the protective cloak of attorney-client privilege does not extend to information that an attorney secures from a witness while acting for his client in anticipation of litigation, an attempt, without necessity or justification, to secure written statements, private memoranda and personal recollections prepared or formed by an adverse party’s counsel, falls outside the arena of discovery.
Facts. In 1943 a tug, the “J.M. Taylor” sank while engaged in helping to tow a car float of the Baltimore and Ohio Railroad across the Delaware River at Philadelphia. The accident, in which five of the nine crew members drowned was unusual in nature and the cause was unknown. Three days later Defendants employed a law firm to defend them against potential suits by representatives of the deceased crew members and to sue the railroad for damages to the tug. The following month, the attorney for Defendants privately interviewed the four survivors and took statements from them with an eye toward anticipated litigation. Hickman (Plaintiff), a representative of one of the five victims, brought suit in federal court naming as defendants the two tug owners. One year later, Plaintiff filed 39 interrogatories directed to the tug owners. The 38th interrogatory requested that the tug owners disclose whether any statements of the surviving crew members were taken following the accident, and if so, to include copies of such statements in writing, and if oral, to set forth in detail the exact provisions of such statements. The tug owners answered all of the interrogatories in full, except number 38. They admitted that statements were taken, but declined to summarize them or provide their contents. They based their refusal on the ground that such requests called for “privileged matter obtained in preparation for litigation. The district court held that the requested matters were not privileged. Upon their refusal, the tug owners were held in contempt. The Third Circuit Court of Appeals reversed the judgment of the district court. The Supreme Court of the United States then granted certiorari.
Issue. Whether, without a showing of prejudice by the moving party, statements made to discoverable, if they were taken in anticipation of litigation and contained among them the personal recollections and thoughts of opposing counsel.
Held. No. The Supreme Court affirmed the judgment of the Circuit Court of Appeals overturning the order for discovery. Discovery has ultimate and necessary boundaries. Limitations come into existence when the inquiry encroaches upon the recognized domains of privilege. The protective cloak of this privilege does not extend to information that an attorney secures from a witness while acting for his client in anticipation of litigation. However, an attempt, without necessity or justification, to secure written statements, private memoranda and personal recollections prepared or formed by an adverse party’s counsel, falls outside the arena of discovery. The policy underlying the work product immunity is the necessity for the lawyer to investigate all facets of the case and develop his theories without fear of having to disclose his strategies or information that is unfavorable to his client. A lawyer is protected against disclosure in discovery of information generated by the litigation process itself but not against disclosure of underlying historical facts. Concurrence. Justice Robert H. Jackson concurred. Justice Jackson’s concurrence focused on the demoralizing effect on law practice if lawyers were required to write out and deliver to their adversaries an account of what witnesses have told them.
Discussion. Ultimately, the Supreme Court held that the crew’s conversations with Fortenbaugh did not come under the attorney-client privilege. Materials prepared for litigation are protected from discovery by a qualified immunity. This case holds that to compel documents that may be privileged by containing attorney work product, the moving party must show that it has no other method of obtaining the information, and that denial of his motion to compel will really harm his case. Moreover, the court, before it was codified in the Federal Rules, recognized the strong policy interest in allowing lawyers to work with a degree of privacy, finding that if such materials were open to opposing counsel, much of what is now written down would remain unwritten. Thus, because Plaintiff’s attorney could have interviewed the survivors on his own, their identity being well known, the court saw that there was no significant harm in not allowing Plaintiff’s access to the statements.