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.
Discovery was hardly intended to enable a learned profession to perform its functions either without wits or on wits borrowed from the adversary.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.
1. Legal preparation requires that attorneys are free to prepare their legal theories without undue intrusion.
2. If opposing counsel had access to counsel’s work product counsel would stop memorializing their work to avoid exposure of their ideas.
3. If this were to occur the quality of legal representation would falter, to the detriment of clients.
4. Defendant Counsel Fortenbaugh’s interviews and statements accrued through third parties, not through his clients, and thus are not privileged nor exempted from discovery demands.
5. However, because the interviewees gave their testimony in public and opposing counsel has access to the witnesses, it is unconvincing why opposing counsel needs access to Defendant counsel Fortenbaugh’s documents.
6. Plaintiff Hickman’s counsel says that he needs Defendant counsel Fortenbaugh’s documents to verify his own information, but this is not a sufficient reason to warrant the intrusion into the work product of opposing counsel.
7. Decision of the lower court is reversed, Defendant counsel Fortenbaugh does not have to produce his documents.