Hickman v. Taylor

329 U.S. 495 (1947)

What's Going On?

Petitioner seeks review of an appellate court judgment holding that information prepared by Respondent's attorney in preparation for trial was not subject to discovery.

Who's Who?

Petitioner      :

Hickman – (original plaintiff) representative of a crew member who died in an accident on Respondent Taylor's tugboat.

Respondents :

Taylor – (original defendant) company that owned the tugboat, “J.M. Taylor.”
Fortenbaugh – (original defendant) attorney for Respondent Taylor;
Baltimore & Ohio Railroad – (original defendant) company whose property was being towed by Respondent Taylor's tugboat.

Facts:

The tugboat “J.M. Taylor”, owned by Respondent Taylor, sank in an unusual accident in which five of its nine crew members were drowned while towing property belonging to Respondent Baltimore & Ohio Railroad. Respondent Fortenbaugh, an attorney representing Respondent Taylor, privately interviewed the four survivors of the accident, as well as other individuals believed to have information relating to the accident. Respondent Fortenbaugh made memoranda of some of the information he gathered in his interviews. Representatives of four of the deceased crew members settled claims without litigation. Petitioner Hickman, representative of the fifth decedent, brought suit against the owners of the tug boat and the Baltimore & Ohio Railroad in federal court under the Jones Act. Petitioner Hickman filed 39 interrogatories. Respondents answered all interrogatories except for an interrogatory requesting records of any statements taken of the surviving crew members regarding the accident, and supplemental interrogatories inquiring into the existence of such statements. Respondents contended that the records requested by Petitioner were made in preparation for litigation and therefore privileged. The district court held that the records were not privileged and ordered Respondents imprisoned until they produced the documents. [The appellate court reversed the district court's decision.]

Issue:

May a party compel the opposing party's attorney to produce all of his memoranda and mental impressions reflecting the oral statements of witnesses made in preparation for litigation?

Decision:

No. Mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation. Therefore, either party may generally compel the other party to disclose the knowledge within that party's possession. [FRCP 26(c) and FRCP 30(d)] limit disclosure of information that is being compelled in bad faith or in an attempt to annoy, embarrass, or oppress the person subject to the inquiry. Additionally, Rule 26(b) provides further limitations if an inquiry encroaches upon the relevant domains of privilege. The requested work product of Respondent Fortenbaugh, consisting of statements, memoranda, and mental impressions, is not protected by the attorney-client privilege because the attorney-client privilege does not extend to information which an attorney secures from a witness while acting for his client in anticipation of litigation. Petitioner, however, seeks discovery of oral and written statements of known witnesses who are readily available to Petitioner without any showing of necessity or any indication that denial of such production would unduly prejudice Petitioner's case. Neither Rule 26 nor any other rule dealing with discovery requires the production of written statements, private memoranda, or personal recollections prepared or formed by the opposing party's attorney without a showing of necessity or justification. The legal profession would be devastated if lawyers were subjected to such unnecessary intrusion by opposing parties and their counsel. Of course, discovery of material, non-privileged facts in documents within an attorney's possession are discoverable, but the oral statements made by witnesses to Respondent Fortenbaugh, presently in the form of his mental impressions and memoranda, need not be produced. The decision of the appellate court is affirmed.

Basic Rule:

An attorney's memoranda and mental impressions reflecting oral statements of witnesses made in preparation for litigation are not subject to discovery where the party seeking discovery has not made a showing that the information requested is necessary and that denial of discovery would unduly prejudice that party's case.

Concurrence:

This case is rare because generally, it is the plaintiff's attorney seeking the protection sought by Respondent Fortenbaugh. There is a great deal of support for Respondent Fortenbaugh's position from amicus briefs submitted by attorneys who specialize in representing plaintiffs because defendants often use discovery to force plaintiffs to disclose their cases in advance. Petitioner's attorney stated that he desires the memoranda sought in this case in order to make sure that he did not overlook anything and to avoid “a battle of wits between counsel.” A common law trial, however, is inherently adversarial, and there would be nothing more demoralizing than to require a lawyer to deliver to his adversary an account of what witnesses have told him.

Terms:

Amicus brief :

A written argument, setting forth legal contentions, submitted to the court by one who is not party to the lawsuit for the purpose of encouraging a particular outcome or providing the court with information it needs to reach a decision.

Interrogatory :

In pretrial discovery, a written question submitted to an opposing party.

Jones Act :

46 U.S.C. § 688. A federal act that provides a cause of action for seamen who suffer injury during the course of their employment.

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