Hickman v. Taylor, U.S. Supreme Court (1947)
Author: Bram

Cause of action: The following is a cause of action originally for wrongful death and for damages to a tugboat.  This action is an appeal on Circuit Court reversal of trial court's finding that information requested was privileged work product.

Procedural History: District Court of Eastern District of PA held the requested matters were not privileged.  Third Circuit Court of Appeals reversed, holding the information sought was indeed work product and hence privileged from discovery.  This Court affirms.

Facts: Public hearing after a tug boat accident resulted in counsel for PL filing interrogatories asking for all detailed conversations between counsel for respondent and survivors from the accident.

Issue(s): Under federal law, may any pre-trial device at the disposal of either counsel be used to inquire into materials collected by an adverse party's counsel in the course of preparation for possible litigation?

Court's Rationale/Reasoning: Discovery has a two-fold purpose: (1) to narrow basic issues between parties; and (2) as a device for ascertaining the facts, or information as to the existence or whereabouts of facts, related to those issues.  The deposition-discovery rules are to be accorded a broad and liberal treatment, but there are limits (oppressing the other party, bad faith).  Memoranda, statements and mental impressions in issue in this case fall outside the scope of the attorney-client privilege and thus aren't protected from discovery on that basis.  Nor is there privilege for information  which counsel secured from a witness while acting for his client in anticipation of litigation, and the privilege does not apply to anything prepared by counsel for his own use in prosecuting his client's case, or to writings which reflect an attorney's mental impressions, conclusions, opinions, or legal theories.

But the survivors' testimony is of a different matter; they were just as available to PL counsel and they were to DF.  There is no evidence of impropriety or dishonesty by those witnesses, the tug owners or Fortenbaugh (counsel for PL).  Bottom line: PL's counsel is asking for information which has or could have been provided to him during interrogatories or available to him directly direct from asking the witnesses for the asking.

The information requested was also not provided with any proof from PL that any refusal to reveal it would cause hardship or injustice.  The District Court just ordered the information be turned over.  This is not how the Court sees this process as happening.  Such behavior undermines the public policy set which underlies the orderly prosecution and defense of legal claims.  If the thoughts of opposing counsel were available before trial by simply asking for it, the whole system would be undermined and would become "unfair."

Rule: "Where relevant and non-privileged facts remain hidden in an attorney's file and where production of those facts is essential to the preparation of one's case, discovery may be properly had.  Such written statements and documents  might, under certain circumstances, be admissible in evidence or give clues as to the existence or location of relevant facts.  Or they might be useful for the purposes of impeachment or corroboration.  And production might be justified where the witnesses are no longer available or can be reached only with difficulty."

Holding: No.  Were production of written documents statements and documents to be precluded under such circumstances, the liberal ideas of the deposition-discovery portions of the FRCP would be stripped of much of their meaning.

Concurring: (Jackson) This is a question as to whether the demand by PL's counsel is authorized by the rules relating to various aspects of discovery.  Here counsel is asking for a very broad extension of latitude regarding accessibility of information to him during discovery.  This is an adversarial system, and no matter what PL's counsel says, an extension of latitude in discovery materials able to be requested does not apply when the reasoning is to make sure all mental bases are checked, so to speak, in preparation for examining witnesses.  This would out trials on a level one step below a "battle of wits."

The statements are not usable for discovery purposes, but they are possibly for purposes of impeachment, should the case come up.