Brief Fact Summary.
Decedent’s estate is suing the company responsible for his death and wants access to the company’s oral information, which the company’s attorney declines on the basis of privilege.
Synopsis of Rule of Law.
An opposing counsel must show necessity, justification, or undue prejudice for access to the other counsel’s written statements, private memorializations, and personal recollections.
Every lawyer dislikes to take the witness stand and will do so only for grave reasons.View Full Point of Law
A tugboat owned by Defendant J.M. Taylor sank while trying to tow a car float belonging to Baltimore & Ohio Railroad, killing five crew members. Plaintiff Hickman, decedent’s estate, sues Defendant Taylor and Baltimore & Ohio Railroad under the Jones Act and requested access to Defendant Counsel’s, Fortenbaugh’s, written statements and summaries of oral information he gathered when he privately interviewed four survivors of the accident after they had given public testimony about it. Defendant counsel Fortenbaugh refused and the district court ordered him to comply. Defendant Taylor then appealed.
Must opposing counsel demonstrate necessity, justification, or undue prejudice in order to access counsel’s written statements, private memorializations, and personal recollections?
Yes, opposing counsel must demonstrate necessity, justification, or undue prejudice in order to access counsel’s written statements, private memorializations, and personal recollections.
Justice Justice Jackson concurring
Litigation is meant to be adversarial and counsel must be protected from discovery demands that erode competitiveness. Plaintiff Hickman’s counsel’s request for opposing counsel’s work product to double check his is not in line with the judicial process.