Hickman v. Taylor

Facts

On February 7, 1943, the tug J. M. Taylor sank while helping to tow a Baltimore & Ohio Railroad car float across the Delaware River at Philadelphia; five of the nine crew members drowned. Three days later the tug owners and the underwriters employed a law firm, of which Fortenbaugh was a member, to defend them against potential suits and to sue the railroad for damage to the tug. At a public hearing before the United States Steamboat Inspectors, the four survivors were examined; their testimony was recorded and made available to all interested parties. Shortly afterward Fortenbaugh privately interviewed the survivors and took statements from them with an eye toward the expected litigation; the survivors signed them. He also interviewed other people believed to know about the accident, and in some cases made memoranda of what they told him. Four of the five death claims settled. The fifth claimant, Hickman, sued the two tug owners and the railroad in federal court under the Jones Act. One year later Hickman filed 39 interrogatories (written questions answered under oath) to the tug owners. Number 38 asked whether statements of the crews of the two tugs, or of any other vessel, had been taken, and demanded exact copies of written ones and the details of oral ones. The owners answered all the interrogatories except No. 38 and related supplemental ones, calling them an attempt to obtain counsel's private files indirectly.

Issues

1. May a party obtain, as of right and without showing necessity, written statements and memoranda an adverse party's counsel collected in preparation for litigation?
2. Must counsel disclose the contents of oral statements witnesses gave him in anticipation of litigation?

Holding

The district court should have sustained the refusals. Hickman made no attempt to show any reason for producing the written witness statements; a naked demand as of right was insufficient where the witnesses were known and available, the owners had answered broad interrogatories under oath with no suggestion they were incomplete, and the public hearing testimony was open to him. As to oral statements witnesses made to Fortenbaugh, whether in his mental impressions or memoranda, no showing of necessity could justify production on these facts.