Privilege and Trial Preparation Material Case: Parties: Hickman v.

Taylor (1947; US) [CB 438-446] Plaintiff Defendant -

Procedural History: Facts: There was an accident with a tugboat that killed 5 of its 9 crew members. In anticipation of litigation, the tugboat owners and underwriter (respondent) took statements from the 4 surviving crew members, and others they believed to have info about the accident. Petitioner brought the lawsuit for the wrongful death of one of the crew members. Petitioner then filed an interrogatory directed at the tug owners, asking for those statements. Tug owners admitted the statements had been taken, but refused to comply with P's request because the request called for "privileged matter obtained in preparation for litigation" and constituted "an attempt to obtain indirectly counsel's private files." District court ordered respondent to produce the statements, and when he refused, court ordered him imprisoned until he did so, but stayed the order pending an appeal. Issue: Whether the district court erred in requiring the production of documents obtained or prepared by retained counsel in anticipation of litigation absent necessity or other circumstances. Holding: The district court erred in requiring the production of documents obtained or prepared by retained counsel in anticipation of litigation absent necessity or other circumstances. Reasoning: • Petitioner's Argument § Petitioner argued that the deposition-discovery provisions of the Federal Rules of Civil Procedure are designed to enable the parties to discover true facts and compel their disclosure wherever they may be found. Because discovery is to be granted liberally, the privilege limitation must be interpreted narrowly. § Court Says: While discovery should be granted liberally, there are limits, such as a prohibition on discovery of bad faith discovery requests or attempts to obtain privileged material. § Petitioner, having been granted the list of those interviewed, has full ability to consult those individuals itself, or to consult the public records available on the subject. Petitioner had not showed any prejudicial effect of denying discovery. § To prohibit discovery in these circumstances would aid corporate Ds against individual Ps: corporate D's would retain a lawyer immediately, making all subsequently collected information unavailable to P, but individuals may wait for some time before retaining a lawyer, making information collected before the retention of counsel available to the corporate D. § Court Disagrees - Petitioner's argument that protection of trial preparation materials unduly benefits corporate defendants against individual plaintiffs is not persuasive, as discovery may work to the disadvantage as well as to the advantage of individual plaintiffs. • Respondent's Argument § The documents were not subject to discovery, and were protected as privileged matter obtained in preparation for litigation § Court disagrees - Defendant's argument that such material is protected by attorney-client privilege is faulty because statements, memoranda, and mental impressions do not fall under such privilege, because those materials do not document interaction with the client.

§ The request constituted "an attempt to obtained indirectly counsel's private files." Production of documents would amount to revealing litigation strategy of counsel. § Court agrees: It is essential that counsel, historically officers of the court, be able to work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel. The "work product" of the attorney inevitable reflects the mental impressions of the attorney. If discovery were granted, much less would be written, and much more would be forgotten. Inefficiency, unfairness, and sharp practices would inevitably develop in the giving of legal advice, damaging the legal profession and the interests of justice. • Conclusion: Discovery in cases of necessity may be permissible when information is embedded in the attorney work product, but only when alternate methods of acquiring the method are unavailable. In this case, there is no showing of necessity or unavailability of the information elsewhere. RULE: Discovery of written materials obtained or prepared by an adversary's counsel with an eye toward litigation may not be had unless party seeking discovery can establish that 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. (The work-product doctrine.)