Parties[edit]

Plaintiff/Petitioner
Hickman, representative of one of five deceased employees on the John M. Taylor tugboat,
owned and operated by Defendant.
Abraham E. Freedman, attorney for Petitioner.
Defendant
Taylor & Anderson Towing & Lighterage Co., et al., company owning tugboat in question.
Respondent
William I. Radner, of Washington, D.C., and Samuel B. Fortenbaugh, Jr., of Philadelphia,
Pa., for the defendants.

Background[edit]
State of law[edit]
Federal Rule of Civil Procedure 26, a relatively recent innovation at the time this
case was originally filed, granted mandatory discovery of certain documents and
materials when requested. (The modern Rule 26(b)(3), protecting trial preparation
materials, did not become effective until 1970.)

Facts of case[edit]
Defendant's tugboat sank in Delaware River, killing five of nine crew members,
including Petitioner's decedent.

Prior history[edit]
A public hearing was held on March 4, 1943, before the United States Steamboat
Inspectors, at which the four survivors were examined. This testimony was recorded
and made available to all interested parties. Shortly thereafter, Fortenbaugh
privately interviewed the survivors and took statements from them with an eye
toward the anticipated litigation; the survivors signed these statements on March 29.
Fortenbaugh also interviewed other persons believed to have some information
relating to the accident and in some cases he made memoranda of what they told
him. At the time when Fortenbaugh secured the statements of the survivors,
representatives of two of the deceased crew members had been in communication
with him. Ultimately claims were presented by representatives of all five of the
deceased; four of the claims, however, were settled without litigation. The fifth
claimant, petitioner herein, brought suit in a federal court under the Jones Act on
November 26, 1943, naming as defendants the two tug owners, individually and as
partners, and the railroad. Petitioner sought to compel production of signed
statements and memoranda. Respondent granted names of those who had
provided statements, but refused to produce documents. The court ordered his
imprisonment, but stayed the order pending appeal. Respondent appealed to the
Court of Appeals for the Third Circuit, and the production order was reversed.

Procedural posture[edit]
Petitioner seeks reinstatement of order to produce documents and order of
imprisonment.

Legal analysis[edit]
 The issue in this case was 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. The respondent refused to
produce documents on the ground that they were not subject to discovery, and were
protected as privileged matter obtained in preparation for litigation. Respondent
argued that the interrogatory constituted "an attempt to obtain indirectly counsel's
private files" and therefore production of documents would amount to revealing the
litigation strategy of counsel. Petitioner countered that the deposition-discovery
provisions of the Federal Rules of Civil Procedure were 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, as prohibiting discovery in these circumstances would aid
corporate defendants against individual plaintiffs by allowing corporate defendants
to retain a lawyer immediately, making all subsequently collected information
unavailable to plaintiff. Individuals, on the other hand, might have to wait for some
time before retaining a lawyer, making information collected before the retention of
counsel available to the corporate defendant.

Discussion[edit]
According to the American work-product doctrine 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. In light of this 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.
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. 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.
Furthermore defendant's argument that such material is protected by attorneyclient
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. 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. It is
essential that counsel who historically are officers of the court be able to work with a
certain degree of privacy free from unnecessary intrusion by opposing parties and
their counsel. Consequently the "work product" of the attorney inevitably reflects the
mental impressions of the attorney such that if discovery were granted much less
would be written and much more would be forgotten consequently leading to
inefficiency, unfairness, and sharp practices which would inevitably develop in the
giving of legal advice in turn damaging the legal profession and the interests of
justice and discovery. In cases of necessity turning over this information may be
permissible when information is embedded in the attorney work product but only
when alternate methods of acquiring the method are unavailable. Whereas in this
case there is no showing of necessity or unavailability of the information elsewhere.

Notable concurring and dissenting opinions[edit]

Jackson, J., concurring.
Discovery rules may not be formulated in granting special privileges to one class of litigants,
plaintiff or defendant, corporate or individual, or otherwise. Discovery is intended to afford
fairness in access to information, not to make one's litigation strategy available to one's
adversary. While a "battle of wits" results from confidential litigation strategies, litigation
without strategy would be far more demeaning to the legal profession and would not work in
the interest of justice.

Result[edit]
Judgment/disposition[edit]
Circuit court reversal of production order affirmed