State of law

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

Defendant's tugboat sank in Delaware River, killing five of nine crew members, including Petitioner's decedent.

Prior history

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

Petitioner seeks reinstatement of order to produce documents and order of imprisonment.

Discussion

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 attorney–client 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

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.

Judgment/disposition

Circuit court reversal of production order affirmed.

Legacy and other notes

The "trial preparations material"/work-product doctrine was later codified in Federal Rule of Civil Procedure 26(b)(3). See Rule 26.