*1 ADMINISTRATOR, v. TAYLOR HICKMAN, et al., trading as TAYLOR & ANDERSON TOWING & CO., LIGHTERAGE et al. January 13, Argued 1947.
No. 47. November 1946. Decided *2 argued Abraham E. Freedman petitioner. the cause for him Borowsky With brief were Milton M.
Charles Lakatos. Fortenbaugh,
Samuel B. Jr. and William I. Radner argued the for respondents. cause With them on the Stahl, Benjamin brief was F. Jr.
Briefs were filed Lee Pressman Frank Donner for the United Railroad America, Workers William L. Standard the National Maritime Union of curiae, America, as amici urging reversal.
Briefs were filed Moore, Ryan B. Allston James W. and J. LaBrum Harry for the Bar Association, *3 American Prizer, and Gould, John C. Albert T. Krusen, Leslie C. Roger Englar, D. Joseph Henderson, Rault, W. Jos. M. Archie M. Stevenson Byrne, and Thomas E. for Jr. the Maritime Law Association of States, the United as amici curiae, urging affirmance. Murphy opinion delivered the
Mr. Justice Court.
This an presents problem case under the Fed- important eral Rules of Civil Procedure as to the extent to which a inquire party may into oral and written statements of witnesses, information, or other an adverse secured party’s counsel preparation possible course of for litigation after a claim arisen. into has Examination person’s including resulting records, files those the professional attorney, judged activities must with care. It is safe- not without reason that various guards have been established to unwarranted preclude excursions into privacy of a man’s work. At the same public time, policy supports and necessary reasonable inquiries. Properly balance these interests competing is a delicate and difficult task. while tug Taylor” sank “J. M. February 7,
On & car the Baltimore tow a float of engaged helping Philadelphia. at across the Delaware River Railroad Ohio nature, the cause apparently unusual The accident was members being Five the nine crew it still unknown. tug and the days Three later owners were drowned. firm, respondent a law of which employed underwriters member, against poten- is a to defend them Fortenbaugh crew by representatives tial of the deceased members suits damages tug. to the and to sue the railroad hearing 4, 1943, A was held on March before the public Inspectors, at which the four United States Steamboat testimony were examined. This was recorded survivors Shortly all parties. and made available to interested thereafter, Fortenbaugh privately interviewed sur- from them with an toward eye vivors took statements litigation; signed anticipated the survivors these state- 29. Fortenbaugh ments on March also interviewed other relating believed to have some information to the persons of what he made memoranda some cases accident Fortenbaugh At when secured they told him. the time survivors, representatives of two the statements been in crew members had communication deceased presented repre- him. claims were Ultimately claims, deceased; all five four of the sentatives of *4 litigation: The fifth claim- however, were settled without petitioner brought suit a federal court under ant, herein, 26,1943, naming the Act on November defendants Jones owners, partners, and and the tug individually the two railroad. year interrogatories filed di- later,
One 39 The tug interrogatory to the owners. 38th read: rected of the any “State whether statements of the members Tugs Taylor’ ‘Philadelphia’ crews of ‘J. M. and the towing any were with the other vessel taken connection Tay- ‘John M. sinking Tug the car float the of the and 499 copies of all if in Attach hereto exact such statements lor.’ oral, forth in detail the exact writing, provisions and if set reports.” such statements or any oral interrogatories asked whether oral Supplemental reports other statements, records, or written memoranda concerning had matter the been made relative to tow- ing sinking tug, salvaging the operation, the and tug, If repair of the and the death the deceased. the affirmative, tug answer was the owners were then re- quested records, set forth the nature all such reports, statements or other memoranda. tug owners, through Fortenbaugh, answered all of interrogatories except No. and the supplemental just
ones described. that admitting While statements of had taken, they the survivors been declined to summarize or set forth contents. did They ground so on the requests such called “for privileged matter obtained in preparation litigation” and attempt constituted “an indirectly private to obtain counsel’s files.” It was answering requests claimed that these “would involve practically turning only over not complete files, but and, also the records telephone almost, thoughts counsel.”
In hearing connection objections, these Fortenbaugh made a written gave statement and an in- formal oral deposition explaining the circumstances under which he had taken the statements. But he was not ex- pressly deposition produce asked the statements. The District Court for the Eastern District of Pennsyl- vania, sitting banc, en requested held that matters privileged. were F. R. D. 479. The then court de- tug Fortenbaugh, creed owners and as counsel agent tug owners, for the forthwith “answer Plaintiff’s 38th interrogatory supplementary interrogatories; produce all statements of witnesses written obtained by Fortenbaugh, Mr. as counsel agent for Defendants;
500 De- this case which concerning fact
state
substance
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made
through
statements
learned
oral
fendants
in his
included
Fortenbaugh
Mr.
whether or not
nesses
Mr.
mem-
produce
Fortenbaugh's
memoranda and
private
of fact
witnesses or
containing statements
oranda
the
determination of
submit these memoranda to
Court for
portions which should be revealed
Plaintiff.”
those
adjudged
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the court
them
Upon
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their
imprisoned
they complied.
them
until
and ordered
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en
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The
Circuit Court of
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212.
It held that
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engendered
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problem,
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importance
The
among
courts,1
us to
great divergence of views
district
led
grant certiorari.
lished Rules 26 to 37 one of most of Civil vations of Federal Rules Procedure. Under practice, pre-trial federal functions of notice- prior giving, per- issue-formulation and fact-revelation were primarily inadequately by pleadings.2 formed into issues and the facts before was Inquiry trial 1 by Advisory Civil cases collected Committee on Rules of See (June, 1946), pp. Report Proposed in its Procedure Amendments ; 433, 2 40-47 5 F. R. D. 457-460. also Moore’s Practice See Federal (1945 155-159; Supp.), pp. Holtzoff, §26.12, Cum. “Instruments Discovery Procedure,” 41 under Federal Rules of Civil Mich. L. Rev. 205, 210-212; Willis, Discovery Operation,” “Federal 7 Pike and Chicago 297, Univ. of L. Rev. 301-307'. 2 great pleading developing “The weakness as means for presenting lay issues of fact for trial its total lack of means testing pleader’s allegations the factual basis for the and denials.” Sunderland, Theory Procedure,” “The and Practice of Pre-Trial Discovery Mich. L. Ragland, Rev. 216. See also Trial Before (1932), ch. I. *6 in was often cumbersome method.3
narrowly confined and rules, however, pleadings the to task The new restrict the general notice-giving deposition-discov- and invest the ery with a role in the for trial. process preparation vital a discovery (1) The various instruments of now serve along with Rule to device, pre-trial hearing the under clarify parties, narrow and basic issues between and the the (2) as a the ascertaining facts, device or information as to of facts, the existence or whereabouts relative to those longer issues. Thus civil in the federal courts no trials clear, need be carried on in the dark. The is now way to recognized parties consistent the privileges, for obtain possible knowledge the fullest of the issues and facts before trial.4 which question deposition-
There is initial as to in Petitioner, rules is involved this case. filing interrogatories, thought proceeding he was provides may under Rule 33. That rule that a serve party upon an- any party interrogatories adverse written to be swered the served.5 The District Court party pro- 3 26.02, (1938), pp. 2 2445-2455. Moore’s Federal Practice § 4 Willis, Deposition-Discovery Pro- Pike and New Federal “The cedure,” Pike, 1179,1436; Deposi- L. Federal 38 Col. Rev. “The New tion-Discovery Evidence,” 34 L. Procedure and the Rules of Ill. Rev. 1. “Any party may upon any party
5 Rule 33 reads: serve adverse interrogatories party or, written be if the to answered served party public corporation private partnership is a served or or or association, any testify competent officer thereof its behalf. interrogatories separately fully writing shall be answered and signed by person them; under making oath. The shall be answers upon party interrogatories and the whom the served have been shall copy submitting interroga serve party the answers on the days delivery interrogatories, tories within after unless good enlarges court, shown, motion and notice and for cause Objections any interrogatories may pre time. shortens the thereof, days sented to the court within 10 after service with notice its although opinion, its assumption on the same ceeded both contempt its order stated produce order pro- 34 establishes a involved. Rule Rules 33 and 34 were showing good any party whereby, upon motion cedure parties, all other upon therefor and notice to cause in- produce permit may party court order any designated photographing spection copying or contain etc., which constitute documents, privileged, involved in action material matter evidence *7 in or control.6 possession, custody and which are however, that Rule 26 The Circuit felt Appeals, Court of Petitioner, said, proceeding was the it was crucial one. interroga- by interrogatories and, connection those tories, se- wanted of memoranda and statements copies cured that Rule While the believed witnesses. court owners, involved, defending tug 33 was at least as to the stated that this rule could not used as the basis be produce Fortenbaugh’s or condemning failure to disclose objec- motion; as case of a and shall be deferred until the answers early practicable. are determined, tions as which shall be at a time as party may, court, No leave one of without of serve more than set interrogatories party.” to be answered the same 6 good provides: “Upon any party showing Rule 34 of motion upon parties, cause therefor and notice all other the court which to pending may (1) any produce permit party an action is to and order inspection copying photographing, and behalf the or or on moving books, accounts, party, any designated documents, papers, letters, photographs, objects, tangible things, privileged, not which or any constitute or involved in contain evidence material to matter control; possession, custody, the action or and which are or (2) any party permit entry upon designated order land or other possession property purpose inspecting, in his or control for the measuring, any desig surveying, photographing property or or object operation specify nated relevant shall or thereon. order time, place, making inspection taking and manner of copies may prescribe and photographs and such terms conditions just.” are applies only the memoranda since the statements, rule interrogatories not parties, addressed to adverse to their agents inappli- counsel. And Rule 34 was be or said trying original cable since was not to see an scope within the photograph it, document and to copy must that Rule 26 of that rule. The court then concluded That provides the testi- really be the one involved. may mony any not, whether a be taken person, party oral examination or writ- by any party by upon deposition use purpose ten for the or for interrogatories examined re- evidence; deponent may and that the any is relevant garding matter, privileged, which subject action, matter involved in whether pending examining party the claim or defense relating existence, or of other any party, including description, nature, custody, condition and books, location of docu- other tangible things.7 ments or portions provide The relevant of Rule 26 as follows: Depositions May “(a) By of court after leave When Be Taken.
jurisdiction has property been obtained over or over defendant subject which is the of the action or without such after leave an answer *8 served, testimony any party not, has the person, been of whether a or may any party by deposition upon be taken at the of instance oral interrogatories or purpose examination written for the purposes. or for use as evidence in the action for both or The attend- may compelled by subpoena ance of witnesses be the pro- use of as Depositions only vided in Rule 45. shall be taken in accordance with deposition person prison these rules. The of a may confined in by only prescribes. taken leave of court on such terms as the court Scope “(b) by Examination. Unless otherwise ordered the court provided by (b) (d), deponent may as Rule 30 or the be examined any regarding matter, privileged, subject not which is to relevant action, pending relating matter involved in the whether to the claim examining party or defense toor the claim or defense of party, including other the existence, description, nature, custody, condition, books, location of documents, tangible other things identity persons having and location of knowledge of relevant facts.” light difficulty not events
The matter is without believe, however, peti- that transpired below. We that primarily under Rule 33. He ad- proceeding tioner was interrogatories tug simple solely to individual dressed as that rule. owners, parties, contemplated the adverse not, 33, such did not under Rule address He could Fortenbaugh. Nor counsel, did he to their interrogatories tug owners to interrogatories either direct these Rule 26 thus could not Fortenbaugh by way deposition; rec- appear not from the operation. into And does come Rule 34 for a court filed motion under petitioner ord that in ques- the documents directing production order have such an order could not been entered Indeed, tion. is Fortenbaugh 34, 33, Rule like Rule limited as to since their proceeding, thereby excluding parties agents. counsel or seeking pro- to the that was petitioner
Thus extent gathered and statements duction of the memoranda Fortenbaugh counsel, of his the course activities petitioner per- did remedy. misconceived his Rule 33 mit him to obtain memoranda such and statements to the individual adjuncts interrogatories to the addressed inter- tug party clearly owners. A cannot refuse answer ground rogatories sought on the the information knowledge of his solely attorney. within the But production sought not this case. Here was of docu- attorney ments after the claim has prepared party's pro- for such provision 33 does not make arisen. Rule sought permissible when in connection duction, even fore- since was also interrogatories. Moreover, securing through them an order under Rule closed Fortenbaugh’s deposition was to take only recourse attempt Fortenbaugh to force Rule 26 and to under *9 tecum, in duces subpoena the materials use of a produce Dis- Holtzoff, Rule 45. “Instruments of accordance with Procedure,” 41 the Federal Rules of Civil under covery faulty- 205, despite petitioner’s Mich. Rev. 220. But L. order, ap- an Court entered action, the District choice commanding tug under Rule owners parently Fortenbaugh, agent counsel, produce their in led to the anomalous question. materials Their refusal for failure holding tug contempt result of owners that which was in the of their coun- produce possession holding Fortenbaugh contempt failure sel and of for produce which could not produce compelled he be under either Rule 33 or Rule 34. unnecessary
But, circumstances, under the we deem irreg- and unwise to upon procedural rest our decision this urged ularity, strongly upon which is not irregularity which It disregarded us and was two courts below. matters little at this stage Fortenbaugh late whether fails interrogatories to answer filed under Rule 26 or under Rule 33 or whether produce he refuses to the memoranda pursuant subpoena to a Rule statements under a court order under Rule The deposition-discovery 34. integrated rules create procedural devices. And the basic question at stake is whether bemay those devices inquire used to into materials collected an adverse party’s counsel the course of preparation possible litigation. The fact that may have used wrong method does not destroy the main thrust attempt. Nor does it relieve us of the responsibility of dealing problem with the raised attempt. It would be inconsistent with the liberal atmosphere sur- rounding these rules to insist that petitioner go now through the empty formality pursuing right pro- cedural device only to reestablish precisely the same basic problem now confronting us. We do not say, mean to however, that may there not be situations in which the proceed failure to in accordance a specific rule would important or decisive. But in present circum- stances, for purposes of this decision, the procedural *10 proper Having the noted material. is not
irregularity to the our attention accordingly turn may we procedure, underlying problem. substance of mate- inquire into right to In that he has a urging Fortenbaugh, petitioner by prepared rials secured portions emphasizes deposition-discovery that designed are Rules of Civil Procedure the Federal compel the true facts parties enable the to discover It is said may wherever be found. they their disclosure epitomized these may rules, that be made under inquiry privi- is not by Rule as to relevant matter which applied are to be leged ; discovery provisions and since the limita- liberally privilege broadly possible, theOn tion must narrowest bounds. be restricted to its in- the one premise attorney-client privilege that must be case, petitioner argues volved in this it made strictly communications confined confidential attorney. a client And here since materials by Fortenbaugh issue were from persons secured third rather his clients, tug owners, than from the conclu- subjects sion is proper reached that these materials are for discovery under Rule 26.
As support result, additional claims for this to prohibit these discovery under circumstances give would corporate advantage a defendant a tremendous in a suit by an individual plaintiff. in suit an Thus a injured against employee railroad in a suit person insured against an corpo- insurance company rate defendant could pull a dark veil of all secrecy over the pertinent it facts can collect after the claim arises merely on the assertion that such facts gathered by were large its staff attorneys agents. and claim At the same time, the individual plaintiff, who often direct knowl- has edge of the matter issue and has’no counsel until some time after his claim compelled arises could be to disclose all the intimate details of his case. By endowing á lawyer all that discovers immunity disclosure duties, said, rights of individual the course of litigants vitality in such drained and the law- cases are deception than a search suit becomes more of battle truth. *11 framing problem assisting But in of individual terms against corporate in is plaintiffs their suits defendants unsatisfactory. Discovery concededly may work to the disadvantage advantage as well as to the of individual plaintiffs. in Discovery, words, one-way other is not proposition. It is available in all types of cases at the of any party, behest plaintiff individual corporate, problem defendant. The thus far transcends the situation confronting- petitioner. this And prob- we must that view in light lem of the limitless situations where the particular sought kind discovery by petitioner might of be used. agree, course,
We of deposition-discovery that the rules are to be accorded a broad and No liberal treatment. longer can cry the time-honored “fishing expedition” of to preclude inquiring serve a party from into the facts underlying opponent’s his knowledge case.8 of Mutual all gathered the relevant facts parties both is essential litigation. to proper To that end, may either com- party pel disgorge the other to whatever facts he in has his pos- session. procedure deposition-discovery simply ad- stage vances the at which the can compelled disclosure from the time period of trial to the preceding it, thus reducing the possibility of surprise. discovery, But like all matters procedure, of necessary has ultimate and boundaries. As indicated (b) Rules 30 (d) and 31 (d), inevitably limitations arise when it can be shown
8 arguments against “One the chief 'fishing expedition’ objec tion is the discovery idea that is party may mutual —that while a have to case, disclose his he can opponent at the same time tie down to a position.” definite Willis, Pike Discovery “Federal Operation,” Chicago Univ. L. Rev. 303. in bad faith or conducted being
that the examination oppress embarrass or annoy, manner such a (b) pro- as Rule 26 subject And person inquiry. to the existence when vides, limitations come into further upon irrelevant or inquiry upon touches encroaches privilege. recognized domains memoranda, agree statements We also in this case fall outside impressions mental issue are not scope attorney-client and hence privilege protected unnecessary It from on that basis. privilege scope here to delineate the content and recognized present the federal courts. For purposes, cloak this protective privilege suffices to note that the an attorney does not extend to information which secures acting a witness while in anticipation client this concern the memo- litigation. privilege Nor does writings briefs, and other randa, prepared communications *12 case; his client’s prosecuting for his own use by counsel writings to which reflect an equally and it is unrelated opinions conclusions, or impressions, mental attorney’s legal theories. invoking privilege does not impropriety
But the of provide problem the before us. Petitioner an answer to ordinary request relevant, than non- has made more of or their privileged possession facts the his adversaries right He of of oral and sought counsel. has written statements of whose well identity witnesses petitioner known to unim- availability appears and whose paired. sought production He has of these matters after making searching inquiries opponents most surrounding fatal accident, to circumstances which inquiries were sworn to have been answered to the best Interrogatories of their information belief. were di- to, during prior rected toward all the events and subse- sinking tug. Full and quent to the honest answers necessarily to such would inquiries broad have included all gleaned by Fortenbaugh through information pertinent no interviews the witnesses. Petitioner makes suggestion, and we owners assume, tug cannot that the or Fortenbaugh framing or in the incomplete were dishonest their In answers. was free to ex- addition, public amine the testimony of the witnesses taken before the United Inspectors. States Steamboat thus We are dealing with an attempt production to secure the of writ- impressions ten statements and mental in the contained files and the mind of attorney Fortenbaugh without any showing of necessity any or indication or claim that denial of such production unduly prejudice would preparation petitioner’s case or him any cause hardship injustice. aught For that appears, the essence of what petitioner seeks either him has been revealed to already him through interrogatories isor available readily to asking. direct from the witnesses for hearing objections peti- District Court, after request, Fortenbaugh tioner’s commanded all produce written statements of witnesses and state in substance any through facts learned oral statements of witnesses him. Fortenbaugh was submit memoranda he any had made of the might oral statements so that the court deter- mine what portions should be All petitioner. revealed to this was ordered showing without any by petitioner, or any requirement that he make a proper showing, of necessity for the production of this material demonstration that production denial of would cause *13 hardship injustice. or The court simply ordered pro- duction the theory on sought that the facts were material and were not privileged constituting attorney-client communications.
In our neither 26 nor opinion, Rule any other rule deal- ing with discovery contemplates production under such circumstances. That is subject not because the matter is privileged irrelevant, or concepts as those are used in these
Ox O purported without attempt, simply is Here
rules.9 statements, written justification, to secure necessity prepared recollections personal memoranda private of his the course party’s counsel by an adverse formed such, arena of discov- it falls outside legal duties. As or- underlying public policy ery and contravenes Not even legal claims. and defense derly prosecution justify unwar- can theories the most liberal impressions files the mental inquiries into ranted attorney. of an of the court and lawyer is an officer
Historically, a faith- justice while to work for the advancement bound In his rightful clients. protecting interests fully that however, is essential performing duties, his various from degree of free lawyer privacy, work with a certain and their coun- unnecessary opposing parties intrusion concept privilege English developed have courts prepared by with a view to all documents or for counsel include litigation. for the “All documents which are called into existence assisting necessarily purpose depo purpose not the sole —of —but litigation legal any anticipated nent or his advisers actual or are privileged briefs, plead production. proofs, . . . Thus all draft ings, etc., privileged; but not indorsement on the outside are counsel’s ., deposition given publicly of his brief . . evidence nor or notes of agent open papers prepared ... Court. So are all of the party purposes bona for the use of solicitor for the of the fide action, in fact Reports company’s whether so used or not. . . . servant, ordinary if made routine, privileged, are course though it even desirable the solicitor should have them and they him; subsequently are sent requested but if the solicitor has always prepared such documents shall use and this why they was one of the prepared, they reasons were need not be Odgers Pleading (12th disclosed." on ed., 1939), and Practice p. 264. 31, rule.l, Supreme Court, 1883,
See Order of the Rules of the set Practice, 1945, p. in The 519, forth Annual discussion fol- lowing compilation English that rule. For a cases on the matter Wigmore (3d 1940), see 8 ed., 618-622, Evidence pp. notes. *14 a client’s case demands Proper preparation of sel. information, sift what he considers be he assemble legal facts, prepare from irrelevant relevant plan strategy without undue needless theories necessary That historical and the interference. is the in which within the of our way lawyers act framework system jurisprudence promote justice of and to protect course, their clients’ interests. This reflected, work in interviews, statements, memoranda, correspondence, briefs, personal impressions, beliefs, mental and countless tangible other intangible roughly ways aptly though — termed by the Circuit Appeals Court of in this case as the “work product of the lawyer.” Were open such materials to opposing demand, counsel mere much of what is now put down in writing An would unwritten. remain attor- ney’s thoughts, inviolate, heretofore would not be his own. Inefficiency, practices unfairness and sharp would inevi- tably develop the giving legal prep- advice and aration of cases for trial. The effect on the legal profes- sion demoralizing. would be And the interests clients and the justice cause of would poorly be served. do say
We not mean to that all written materials ob- prepared by eye or adversary’s tained an counsel with an necessarily toward are free litigation discovery in all cases. Where relevant and non-privileged facts remain attorney’s hidden and where production file of those facts essential to the preparation one’s case, may be properly had. Such written statements and docu- might, ments circumstances, under certain be admissible give evidence clues as to the existence or location might relevant facts. Or be they useful for purposes impeachment production might corroboration. And be justified where longer the witnesses are no available or can difficulty. be reached only Were production written precluded statements and documents under *15 deposition-dis- liberal ideals of the circumstances, the
such Rules of Civil Procedure of the Federal covery portions meaning. But of much of their stripped would be invading of an attor- against privacy general policy recognized is well and so ney’s preparation course of so legal working system pro- our orderly to essential an invade rests the one who would cedure that a burden adequate justify pro- to that to establish reasons privacy burden, That through or court order. subpoena duction a believe, necessarily implicit in the rules as now we constituted.10 judge the trial written, gives (b), presently as
Rule 30 as whether judgment to to make a requisite discretion se- written statements allowed as to discovery should be was case there But the instant cured from witnesses. peti- operate to favor of no room for that discretion any reason to establish tioner. No was made attempt the written Fortenbaugh produce why should be forced to only naked, general was a demand statements. There District right finding as and a for these materials was involved. That recognizable privilege Court that no these circum- justify to under was insufficient sustained the refusal of stances and the court should have Fortenbaugh tug produce. to owners to witnesses to Forten- But as oral statements made form his im- baugh, in the mental presently whether memoranda, do that show- pressions or we not believe ing necessity can be made circumstances under the justify production. ordinary of this case so to Under write conditions, forcing attorney repeat out all have him and deliver the account witnesses told explicit requirements party good 34 is Rule its show cause directing obtaining party produce before court order another Report Proposed by Advisory documents. See Amendments (June, 1946); Committee on Rules of Civil 6 F. R. D. Procedure 433. gives
to his adversary grave dangers rise to of inaccuracy legitimate No untrustworthiness. purpose served by such production. practice attorney forces the testify as to what he remembers or what he saw fit write down regarding witnesses’ remarks. Such testimony qualify could not and to evidence; use for impeach- ment purposes corroborative attorney would make the much less an officer of the court and much more an ordi- nary witness. The standards of the profession would thereby suffer. production
Denial of of this nature does not mean that any material, non-privileged facts can be hidden from *16 in He this case. need hin- unduly in dered of in preparation case, discovery of or in anticipation facts opponents’ position. of his Searching interrogatories Fortenbaugh directed to and the tug owners, production of written documents and state- upon proper showing ments and direct interviews with the witnesses themselves all in serve to reveal facts Fortenbaugh’s possession possible to the fullest extent public policy. consistent with Petitioner’s counsel frankly admits that he the oral only wants statements to help prepare himself to examine witnesses and to make sure that he nothing. has overlooked That is insufficient him an permit under the circumstances to exception to the policy underlying privacy Fortenbaugh’s pro- of If fessional activities. there a rare should be situation justifying of production matters, petitioner’s these case not of type. fully appreciate
We the wide-spread controversy among legal profession members of the the problem over raised this case.11 It is a problem that rests on what 11 Report Proposed See by Advisory Amendments Committee on (June, Rules of 1946), 44r-47; Civil Procedure pp. 5 F. R. D. 459-460; Discovery Symposium Procedure before the 1946Conference discovery of the hazy frontiers the most has been one of definitely pre- rule or statute until some But process. in dis- permitting justified are not otherwise, we scribes unquali- as matter of this nature covery in a situation rules 26 and the other Rule fied When right. of the bar the members this adopted, were Court all contemplate believe or certainly did not general thereby lawyers were processes and mental the files And we adversaries. scrutiny of their to the free opened time reach so at this so as to interpret the rules refuse a result. harsh and unwarranted Circuit Court judgment therefore affirm the We Appeals.
Affirmed. Jackson, concurring. Mr. Justice only one case concerns question The narrow this their which defendants interrogatories thirty-nine persistence there was As counsel refused to answer. coun- it, to answer ordered them after the court refusal court jail by district clients were committed sel contempt. purge themselves they should until taken were statements interrogatory asked whether accident, or of tugs from the crews of the involved *17 exact any demanded “Attach hereto vessel, other oral, if in and if set copies writing, of all such statements provisions forth in of such oral state- detail exact reports.” question simply ments The whether such relating a demand is authorized the rules to various aspects “discovery.” of effect of would primary practice advocated here legal it profession
be on the itself. But too often is over- 403; Appeals, the Third United of 5 F. R. D. of States Circuit Court Armstrong, Advisory “Report of the Committee on Federal Rules Recommending Amendments,” of Civil Procedure 5 F. R. D. 353-357. lawyer indispensable
looked law are that the and the office justice. Law-abiding our of parts peo- of administration go changing can else to ever ple nowhere learn the constantly multiplying they rules which must behave wrongs. and to obtain redress for their The welfare tone the legal profession prime is therefore of conse- quence society, consequences to which would feel the urges secondarily such a as cer- practice but tainly.
“Discovery” is working legal one of the tools of the pro- in fession. It traces bill equity back English Chancery practice had a fore- and seems have runner in practice. Ragland, Discovery Continental See Before Trial 13-16. the drafts- (1932) Since 1848 when men New im- York’s recognized Code Procedure portance of system discovery, impetus a better expand discovery, extend and as well opposition it, has come from within the Bar itself. It in this happens attorney case that who plaintiff’s is the demands unprecedented discovery and, strangely such latitude of in enough, support amicus briefs have been filed several labor a It representing plaintiffs unions class. history is the discovery, of movement for how- broader ever, experience actual the chief its opposition to has come lawyers specialize repre- extension who plaintiffs, senting because defendants have made liberal it to plaintiffs use of force their ad- to disclose cases in See Report vance. on Commission the Adminis- tration (1934) of Justice New York State 330-31; Rag- land, Discovery Trial (1932) Before Discovery 35-36. two-edged problem sword and we cannot decide this extending doctrine of help litigants. to one class of
It long seems clear and recognized has been that dis- covery should provide party anything access that is evidence Report case. of Commission on the Cf. Administration of Justice in New (1934) York State 41-42. *18 nullify not discovery should equally clear that
It seems at- between communication of confidential privilege no real give us principles But those torney and client. being sought is neither what because is assistance here between privileged it a communication nor is evidence attorney and client. aspect require-
To first the most extreme consider if counsel, upon we find it calls litigation here, ment in any the crews any he had conversations has in other, to “set forth or of question the vessels such oral statements provision detail the exact production the demand not for the reports.” Thus writ- of a but calls for creation transcript existence the statement counsel being. ten not But statement written. him is evidence when of what a witness told What, his case. prove could not introduce Plaintiff demanding be this then, sought served purpose of adverse counsel? candidly argument on
Counsel for the said himself to help prepare that wanted this information to he nothing. he witnesses, examine to make sure overlooked his claim He bases to it his brief on the view that away Rules were to with the a law do old situation where “a developed into battle of wits between counsel.” suit But a trial always common law is and should be an adver- sary Discovery hardly proceeding. was intended to en- profession perform able a learned its either functions wits or without adversary. wits borrowed probable The real purpose effect of the practice ordered the district put court would be on a trials level even than lower a “battle wits.” I can conceive of no practice more demoralizing to the Bar re- than to quire lawyer to write adversary out deliver account of what witnesses have him. Even if told his rec- were ollection statement would perfect, lan- *19 who has Every inferences. one guage, permeated with his to re- fairly impossible tried it knows that it is almost so when expressions of a witness that emphasis cord the and under he testifies the environment of the court depar- be leading question will not influence of the there respects. of the testimony tures some Whenever the lawyer witness differ would from the “exact” statement whipped delivered, lawyer’s had would be statement impeach out to his ad- producing witness. Counsel versary’s nothing by say- “inexact” statement could lose ing, “Here I gentlemen jury. is do contradiction, know my adversary not whether it or his witness who is is not.” Of if telling truth, course, but one is this practice were would be over adopted, repeated scene again. lawyer over who delivers such statements often would find himself branded a deceiver afraid take to support stand his own con- version of the witness’s versation with else he will him, go have to on the stand to defend his own credibility perhaps against that of his — chief witness, or possibly even his client.
Every lawyer dislikes to take the witness stand and will do only for grave so partly reasons. This is because not his role; ishe invariably poor almost witness. But steps he professional out of regrets character to do it. He it; the profession discourages it. But practice advo- cated here is one which him would force a witness, not as to what he has seen or done but as to other witnesses’ stories, and not because he to do wants so but in self- defense.
And what is the lawyer do who has interviewed one whom he believes be a biased, lying or hostile witness to get his unfavorable statements and know what to meet? He must record and deliver such though statements even he would not vouch for the credibility of the witness him. calling Perhaps the other side would not want to charge open to the attorney but the either, him
call to call such if he the trial fails at suppressing evidence him as regarded though he never even a hostile witness or truthful. reliable witnesses,
Having supplied names been why inter- no reason he cannot petitioner’s lawyer gives employee-witness refuses them himself. If an view *20 the Rules. under story, too, may tell his be examined he, trial, on the discovery, fully as as may compelled He be But is his own to disclose his version of facts. impeach him if he contradicts be to disclosure —it can used not to an un- deposition promote it and a useful such disagreement between witness and counsel seemly case. It of would language is true that the literal the Rules admit that would sustain the district interpretation of Act language court’s order. So the literal of the of Con- gress writing which makes record . . . made as “any or a or of . . or occurrence, memorandum record . evidence, as allowed the event” admissible would have engineer’s company put railroad its accident statements 111. Hoffman, evidence. Palmer v. 318 S.U. Cf. background But all such measures have a of procedural and practice custom which assumed who was those apply wrote and should be those who them. We re- background consequences viewed the the Act and the of negligence on the trial of cases allowing railroads and in their put others to statements thus to shield said, crew from major cross-examination. We “Such a which change opens wide the door avoidance cross- examination be left implication.” should U. S. 318 at 114. We pointed there, out that here, “several years hundred behind Act . history . . indicate the designed of the reforms which it nature was effect.”
519 U. 115. beyond S. at We apply refused to point. reasoning We should follow same course Certainly nothing practice here. the tradition or discovery up to the sug- time of these Rules would have gested that would such they practice authorize as here proposed. question remains to signed statements or those
written
witnesses. Such statements are not evidence
Hoffman,
for the defendant. Palmer v.
I to the affirmance judgment Circuit Appeals Court of which reversed the district court. joins
Mr. Justice opinion. this Frankfurter