University of the Philippines College of Law

MSI D2021

Topic Discovery > Interrogatories to Parties

Case No. 329 U.S. 495, 67 S.Ct. 385 (1947)
Case Name Hickman v. Taylor
Ponente Justice Murphy

RELEVANT FACTS
 On February 7, 1943, the tugboat "J.M. Taylor" (defendant) sank while helping to tow a car float belonging to the Baltimore
& Ohio Railroad across the Delaware River in Philadelphia.
 Five out of the nine crew members died in the accident. J.M. Taylor’s owners and underwriters of the company hired
attorneys to prepare defenses against potential suits of the deceased and to seek damages against Baltimore & Ohio Railroad.
 A month later, the U.S. Steamboat Inspectors held a public hearing in which the four survivors gave testimony. Their
testimony were recorded and made available to interested parties.
 Shortly thereafter, Fortenbaugh, one of the Taylor’s attorneys, privately interviewed four survivors of the accident after each
had testified in a public hearing about the incident. Fortenbaugh interviewed other witnesses and made memoranda of his
findings.
o The private interviews were conducted in anticipation of expected litigation from the families of the deceased.
Ultimately, claims were brought against the tugboat owners by those families on the ground of wrongful death.
o Four claims settled, but petitioner Hickman’s claim remained.
 Of the five estates of the deceased, only one estate, Hickman (plaintiff), filed suit in federal court against the tugboat owners
and the railroad company under the Jones Act.
 In preparing a defense, opposing counsel (Hickman’s counsel) asked for exact copies of all written statements and summaries
of all information taken orally.
o In other words, during the discovery process, Hickman’s attorney filed 39 interrogatories directed to the tugboat
owners.
o The 38th interrogatory1 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.
o 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.
o It was claimed that answering these requests "would involve practically turning over not only the complete files, but
also the telephone records and, almost, the thoughts, of counsel."
 The district court ordered him to comply. Taylor appealed.

Procedural History
 The District Court ordered Fortenbaugh to provide any written notes or statements in response to the interrogatory.
Fortenbaugh again refused. The District Court held him in contempt and ordered him imprisoned until he complied.
 On appeal, the Third Circuit Court of Appeals reversed the District Court’s order. It held that the information sought in the
interrogatory was the lawyer’s “work product,” and therefore privileged from discovery.
 The U.S. Supreme Court granted certiorari.

1
The text reads: “State whether any statements of the members of the crews of the Tugs 'J. M. Taylor' and 'Philadelphia' or of any
other vessel were taken in connection with the towing of the car float and the sinking of the Tug 'John M. Taylor.'… Attach hereto
exact copies of all such statements if in writing, and if oral, set forth in detail the exact provisions of any such oral statements or
reports."

Issue
Can a party, without any special
showing of need, obtain the
opposing attorney’s work product
developed in anticipation of
litigation?
NO. The judgment of the Third
Circuit Court of Appeals is affirmed.
University of the Philippines College of Law
MSI D2021
ISSUE AND RATIO DECIDENDI
Ratio
Note: The case discusses specific US Rules of Federal Procedure. I highly doubt they will be
discussed in class so I just culled out the relevant doctrine.
Doctrine: Attorney work product materials, which constitute notes and mental impressions
of an attorney in the course of preparing a matter for litigation, are not generally
discoverable. This is called the “work product” privilege.
 The discovery rules do not apply to petitioner’s request. As an initial matter,
petitioner and the lower courts cited various Federal Rules of Civil Procedure to
justify petitioner’s request for Fortenbaugh’s written statements of the witness
interviews. However, none of those Rules apply. Rules 33 and 34 apply to parties
only, not their counsel. Further, Rule 26 does not apply because petitioner asked
for the materials through a simple interrogatory, not a deposition.
 Attorney-client privilege is not applicable here. Fortenbaugh, however, cannot
claim that attorney-client privilege protects from discovery the materials in
question. The privilege extends only between an attorney and his/her client, not to
interviews with third parties, such as the witnesses here.
o We also agree that the memoranda, statements, and mental impressions
in issue in this case fall outside the scope of the attorney-client privilege,
and hence are not protected from discovery on that basis. It is unnecessary
here to delineate the content and scope of that privilege as recognized in
the federal courts.
o For present purposes, it suffices to note that the protective cloak of this
privilege does not extend to information which an attorney secures from a
witness while acting for his client in anticipation of litigation. Nor does this
privilege concern the memoranda, briefs, communications, and other
writings prepared by counsel for his own use in prosecuting his client's case,
and it is equally unrelated to writings which reflect an attorney's mental
impressions, conclusions, opinions, or legal theories.
 The “work product” privilege controls this case. What does protect the materials in
question from discovery is the “work product” privilege. In performing his duties, a
lawyer must be accorded a certain amount of privacy to make notes and gather
information. That privacy should be free from intrusion by adverse parties. Allowing
opposing counsel to get a hold of notes, memos, and mental impressions of an
attorney would create bad incentives. It would encourage sharp dealing on matters
provided in discovery, and lead to inefficiencies by forcing attorneys to leave
important things unwritten.
o This does not mean that certain work product can never be obtained.
However, some special showing must be made before such materials could
be provided in discovery. No special showing was made in this case.
o The material may not be introduced into discovery if the opposing party to
the attorney's client would be able to access it. The witnesses in this case
were known and able to speak with the plaintiff, and there was no reason
to invade the attorney's privacy.
 We agree, of course, that the deposition-discovery rules are to be accorded a broad
and liberal treatment. No longer can the time-honored cry of "fishing expedition"
serve to preclude a party from inquiring into the facts underlying his opponent's
 University of the Philippines College of Law
MSI D2021

case. Mutual knowledge of all the relevant facts gathered by both parties is essential
to proper litigation. To that end, either party may compel the other to disgorge
whatever facts he has in his possession. The deposition-discovery procedure simply
advances the stage at which the disclosure can be compelled from the time of trial
to the period preceding it, thus reducing the possibility of surprise.
 HOWEVER, 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.
o 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.
o 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.
o A lawyer is protected against disclosure in discovery of information
generated by the litigation process itself but not against disclosure of
underlying historical facts.

RULING

We therefore affirm the judgment of the Circuit Court of Appeals.

SEPARATE OPINIONS

Concurring Opinion (Jackson):

 Discovery is to ensure fairness in the litigation process, not to gain access to your adversary’s litigation strategy.
 Some of the adverse effects of limiting the work product doctrine might include requiring lawyers to testify regarding the
contents of their notes and impressions, which would set up an adversarial relationship between the lawyer and the witness
or the lawyer and the client, if the lawyer's credibility is attacked. It also would be unfair to require lawyers to provide
interview testimony from hostile or untrustworthy witnesses. In almost all cases, the burden is on the litigant to interview a
witness directly rather than profiting from an opponent's interview.

NOTES