Hickman v. Taylor – Case Brief
Summary of Hickman v. Taylor, 329 U.S. 495, 67 S. Ct. 385, 91 L. Ed. 451 (1947).
Facts: A tugboat sank killing five crew members. Hickman (P) brought this wrongful death lawsuit as representative of one of the deceased against Taylor et al. (Ds). The four survivors testified at a public hearing before the United States Steamboat Inspectors and their testimony was recorded and made available to all of the parties. The defendants conducted their own interviews of the survivors and others having information regarding the accident.
The defendants answered all interrogatories except for a summary of statements obtained in the course of their own interviews. The defendants contended that the requested summary pertained to “privileged matter obtained in preparation for litigation” and was therefore privileged.
Hickman objected and the district court held that the requested information was not privileged and ordered the defendants to produce it. Counsel for the defendants refused to comply and were held in contempt. The Court of Appeals reversed and the Supreme Court granted certiorari.
Issues: 1) Do the Federal Rules of Civil Procedure pertaining to discovery require an attorney to produce oral and written statements or other information obtained in preparation for possible litigation after a claim has arisen? 2) Is information prepared or obtained by counsel in preparation for litigation after a claim has arisen protected by the attorney-client privilege?
Holding and Rule (Murphy): 1) No. In these circumstances, Rules 26, 33 and 34 of the Federal Rules of Civil Procedure do not require an attorney to produce oral and written statements or other information obtained in preparation for possible litigation after a claim has arisen. 2) No. Information prepared or obtained by counsel in preparation for litigation after a claim has arisen is not protected by the attorney-client privilege and is not protected from discovery on that basis.
Discovery of written materials obtained or prepared by opposing counsel in preparation for possible litigation may not be had unless the 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 the party’s case.
Rule 30(b) gives the trial judge the requisite discretion to make a judgment as to whether discovery should be allowed as to written statements secured from witnesses. In this case however there was no ground for the exercise of that discretion in favor of the plaintiff.
The District Court erred in holding the defendants in contempt for failure to produce that which was in the possession of their counsel, and in holding their counsel in contempt for failure to produce that which he could not be compelled to produce under either Rule 33 or Rule 34.
Public Policy: The general policy against invading the privacy of an attorney’s course of preparation is so essential to an orderly working of our system of legal procedure that a burden rests on the one who would invade that privacy to establish adequate reasons to justify production through a subpoena or court order. There must be some showing of necessity or justification by the party seeking its discovery. If relevant and nonprivileged facts remain hidden in an attorney’s file and the production of those facts is essential to the preparation of a case, discovery may be made.
Under the circumstances of this case, no showing of necessity could be made which would justify requiring the production of oral statements made by witnesses to counsel for the defendants, whether presently in the form of his mental impressions or in the form of memoranda. Hickman had an adequate opportunity to seek discovery of the same facts particularly by the direct interviews of the witnesses and made no attempt to show why production was necessary.
Disposition: Affirmed.
Concurrence (Jackson): The question is simply whether such a demand is authorized by the rules relating to various aspects of “discovery.” Discovery should provide a party access to anything that is evidence in his case. Discovery should not however nullify the privilege of confidential communication between attorney and client. But those principles give us no real assistance here because what is sought is neither evidence nor a privileged communication between attorney and client.
To consider first the most extreme aspect of the requirement in litigation here, we find it calls upon counsel to “set forth in detail the exact provision of any such oral statements or reports.” Thus, the demand is not for the production of a transcript in existence, but calls for the creation of a written statement not in being. The statement by counsel of what a witness told him is not evidence.
See Piper Aircraft v. Reyno for a law school civil procedure case brief holding that access to evidence and the availability of witnesses are factors to be considered in granting a motion to dismiss on forum non conveniens grounds. The case involved a wrongful death lawsuit.