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Hickman v. Taylor

Supreme Court of the United States · 1947 · Civil Procedure

Civil Procedurediscoverywork product doctrineattorney work productmental impressionsRule 26Rule 33Rule 34

Facts

After a tug sank on the Delaware River and five crew members died, the tug owners hired respondent Fortenbaugh, a lawyer, to prepare for expected litigation. He privately interviewed surviving crew members and other persons, obtaining signed statements from some witnesses and making memoranda of others' oral remarks, all in anticipation of litigation. In a later Jones Act suit by petitioner, petitioner served interrogatories asking whether statements and reports had been made and demanding exact copies of written statements and detailed accounts of oral statements. The tug owners answered the other interrogatories but refused to disclose these materials, asserting they were obtained in preparation for litigation and were part of counsel's private files.

Issue

May a party, through the federal discovery rules, obtain as of right written witness statements, memoranda, and an attorney's recollections or mental impressions prepared in anticipation of litigation by opposing counsel? If not, under what circumstances, if any, may such materials be discovered?

Rule

Materials prepared by or for an adverse party's counsel in the course of preparation for possible litigation are not discoverable as a matter of right. Although such materials are not protected by the attorney-client privilege merely because they were gathered by counsel, discovery into written statements and other trial-preparation materials requires an adequate showing of necessity or justification, such as where relevant nonprivileged facts remain hidden and production is essential to case preparation; absent such a showing, unwarranted inquiry into counsel's files and mental impressions is barred. As to oral statements reflected only in counsel's memory or memoranda, discovery is especially disfavored and ordinarily unjustified.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

After a warehouse fire in Cleveland, Ohio, Maple Harbor Logistics retained counsel to prepare for expected civil suits. The lawyer interviewed employees, collected signed statements, and drafted memoranda analyzing what happened. In a negligence action, the plaintiff serves discovery demanding all of those materials solely because they are relevant and nonprivileged.

How should the court rule on the plaintiff's demand?

Explanation. The majority held that materials prepared by or for counsel in anticipation of litigation are not discoverable as a matter of right, even though they are not protected by attorney-client privilege. Discovery may be allowed only upon an adequate showing of necessity or justification. Mere relevance is insufficient.