Hickman v. Taylor,
329 U.S. 495 (1947)

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U.S. Supreme Court

Hickman v. Taylor, 329 U.S. 495 (1947)

Hickman v. Taylor

No. 47

Argued November 13, 1946

Decided January 13, 1947

329 U.S. 495


Under the Federal Rules of Civil Procedure, plaintiff in a suit in a federal district court against certain tug owners to recover for the death of a seaman in the sinking of the tug filed numerous interrogatories directed to the defendants, including one inquiring whether any statements of members of the crew were taken in connection with the accident and requesting that exact copies of all such written statements be attached and that the defendant "set forth in detail the exact provisions of any such oral statements or reports." There was no showing of necessity or other justification for these requests. A public hearing had been held before the United States Steamboat Inspectors at which the survivors of the accident had been examined and their testimony recorded and made available to all interested parties. Defendants answered all other interrogatories, stating objective facts and giving the names and addresses of witnesses, but declined to summarize or set forth the statements taken from witnesses, on the ground that they were "privileged matter obtained in preparation for litigation." After a hearing on objections to the interrogatories, the District Court held that the requested matters were not privileged and decreed that they be produced and that memoranda of defendants' counsel containing statements of fact by witnesses either be produced or submitted to the court for determination of those portions which should be revealed to plaintiff. Defendants and their counsel refused, and were adjudged guilty of contempt.


1. In these circumstances, Rules 26, 33 and 34 of the Federal Rules of Civil Procedure do not require the production as of right of oral and written statements of witnesses secured by an adverse party's counsel in the course of preparation for possible litigation after a claim has arisen. Pp. 329 U. S. 509-514.

2. Since plaintiff addressed simple interrogatories to adverse parties, did not direct them to such parties or their counsel by way of deposition under Rule 26, and it does not appear that he filed a

Page 329 U. S. 496

motion under Rule 34 for a court order directing the production of the documents in question, he was proceeding primarily under Rule 33, relating to interrogatories to parties. P. 329 U. S. 504.

3. Rules 33 and 34 are limited to parties, thereby excluding their counsel or agents. P. 329 U. S. 504.

4. Rule 33 did not permit the plaintiff to obtain, as adjuncts to interrogatories addressed to defendants, memoranda and statements prepared by their counsel after a claim had arisen. P. 329 U. S. 504.

5. The District Court erred in holding 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. P. 329 U. S. 505.

6. Memoranda, statements, and mental impressions prepared or obtained from interviews with witnesses by counsel in preparing for litigation after a claim has arisen are not within the attorney-client privilege, and are not protected from discovery on that basis. P. 329 U. S. 508.

7. 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. P. 329 U. S. 512.

8. 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; but, in this case, there was no ground for the exercise of that discretion in favor of plaintiff. P. 329 U. S. 512.

9. 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 defendants' counsel, whether presently in the form of his mental impressions or in the form of memoranda. P. 329 U. S. 512.

153 F.2d 212 affirmed.

A District Court adjudged respondents guilty of contempt for failure to produce, in response to interrogatories, copies of certain written statements and memoranda prepared by counsel in connection with pending litigation. 4 F.R.D. 479. The Circuit Court of Appeals reversed. 153 F.2d 212. This Court granted certiorari. 328 U.S. 876. Affirmed, p. 329 U. S. 514.

Page 329 U. S. 497

Primary Holding

Under the work product doctrine, a party usually will not have access to materials prepared by an opposing party's lawyers in anticipation of litigation. However, this is only a presumption rather than an absolute rule and can be overcome in exigent circumstances.


When a tug boat with nine crew members sank, five of them were drowned. The four remaining crew members were questioned at a public hearing, after which their testimony was recorded and made available to interested parties. The owner of the tug boat, Taylor, enlisted an attorney in anticipation of litigation. The attorney conducted another interview of the survivors, as well as talking to other people who were believed to have information about the accident. Representatives of the dead crew members brought wrongful death claims. Hickman was the only claimant who did not settle his claim.

During interrogatories in the discovery process, Hickman asked for any statements taken from crew members as well as oral or written statements, records, reports, or other memorandums that related to any matters connected to the towing company's operation, the sinking of the vessel, the salvaging and repair process, and the death of the crew member who was the subject of the claim. Taylor argued that there was no need to provide this information because it was protected by the attorney-client privilege.



  • Frank Murphy (Author)
  • Frederick Moore Vinson
  • Stanley Forman Reed
  • Felix Frankfurter
  • William Orville Douglas
  • Wiley Blount Rutledge
  • Harold Hitz Burton
  • Hugo Lafayette Black

There are some boundaries to discovery, even though the value of the process means that its rules should be interpreted broadly. Material that is irrelevant, privileged, or sought in bad faith may not be subject to discovery. The attorney-client privilege is not relevant here because the material is not a communication between the attorney and the client. However, it implicates the work product doctrine because it concerns the work that the attorney performed on the client's behalf, in which the attorney has a privacy interest. It may be overcome if the party seeking to introduce it into discovery can show why gaining access to that information is essential to the preparation of the case. On the other hand, such as in this case, the material may not be introduced into discovery if the opposing party to the attorney's client would be able to access it. The witnesses in this case were known and able to speak with the plaintiff, and there was no reason to invade the attorney's privacy.


  • Robert Houghwout Jackson (Author)

Some of the adverse effects of limiting the work product doctrine might include requiring lawyers to testify regarding the contents of their notes and impressions, which would set up an adversarial relationship between the lawyer and the witness or the lawyer and the client, if the lawyer's credibility is attacked. It also would be unfair to require lawyers to provide interview testimony from hostile or untrustworthy witnesses. In almost all cases, the burden is on the litigant to interview a witness directly rather than profiting from an opponent's interview.

Case Commentary

Attorneys should not face the concern of whether they should write down something that would interfere with providing zealous representation in an adversary system. This is more important than relieving an opposing party of the inconvenience of extra efforts to obtain paperwork.

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