Hickman v. Taylor

Following is the case brief for Hickman v. Taylor, 329 U.S. 495 (1947)

Case Summary of Hickman v. Taylor:

  • Plaintiffs suing to recover for deaths caused in a tugboat accident served an interrogatory on the tugboat owners, asking for written statements of witnesses interviewed by the tugboat owners’ lawyer.  The lawyer refused.
  • The District Court ordered the lawyer to produce the statements and held the lawyer in contempt when he again refused.
  • The Court of Appeals reversed the court’s contempt finding and order.
  • The U.S. Supreme Court affirmed the decision of the Court of Appeals.  The Court held that the material requested was the attorney’s work product, which was made in anticipation of litigation.  Accordingly, the Court recognized the “work product” doctrine, which protects such information from being discovered absent some special showing of need by opposing counsel.

Hickman v. Taylor Case Brief

Statement of the Facts:

In 1943, the tugboat “J.M. Taylor” was involved in an accident and sank, taking the lives of five of the nine people on board.  A month later, the U.S. Steamboat Inspectors held a public hearing in which the four survivors gave testimony.  Shortly thereafter, the lawyer for the tugboat owners, Mr. Fortenbaugh, privately interviewed the survivors and took notes of the interviews, which the interviewees signed.  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.  Four claims settled, but petitioner Hickman’s claim remained.

During the discovery process, Hickman’s attorney filed interrogatories directed to the tugboat owners.  One interrogatory asked for whether the four survivors were interviewed and, if so, to provide copies of those statements.  Fortenbaugh refused to answer the interrogatory, stating that the information was privileged as obtained in preparation of litigation.

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.

Issue and Holding:

Can a party, without any special showing of need, obtain the opposing attorney’s work product developed in anticipation of litigation?  No.

Judgment:

The judgment of the Third Circuit Court of Appeals is affirmed.

Rule of Law or Legal Principle Applied:

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.

Reasoning:

  • 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.

  • 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.

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.

Concurring Opinion (Jackson):

Discovery is to ensure fairness in the litigation process, not to gain access to your adversary’s litigation strategy.

Significance:

The unanimous decision in Hickman v. Taylor is a landmark decision in recognizing the “work product” doctrine.  The privilege protects an attorneys notes and thought processes made in anticipation of litigation.  The “work product” doctrine was later codified in Rule 26(b)(3) of the Federal Rules of Civil Procedure.

Student Resources:

https://supreme.justia.com/cases/federal/us/329/495/case.html

https://www.law.cornell.edu/rules/frcp/rule_26

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